This morning the Supreme Court handed down a per curiam Fourth Amendment decision, Michigan v. Fisher. The facts of Fisher are pretty similar to Brigham City v. Stuart, 547 U. S. 398 (2006), and the Supreme Court reversed the decision suppressing the evidence on the strength of Stuart. The most surprising aspect of the case is the Court’s bothering to take it. The Court reviewed a state intermediate appellate decision after the state Supreme Court denied review. So my overall take is that this seems like error-correction just to make sure the state Supreme Courts are paying attention.
Perhaps the most interesting aspect of the case is the dissent by Justice Stevens, joined by Justice Sotomayor. After noting the factual testimony at the hearing, which convinced the trial court to suppress the evidence, Justice Stevens says the following:
Today, without having heard [the trial] testimony, this Court decides that the trial judge got it wrong. I am not persuaded that he did, but even if we make that assumption, it is hard to see how the Court is justified in micromanaging the day-to-day business of state tribunals making fact-intensive decisions of this kind. We ought not usurp the role of the factfinder when faced with a close question of the reasonableness of an officer’s actions, particularly in a case tried in a state court. I therefore respectfully dissent.
Justice Stevens doesn’t like summary reversals, and he frequently dissents from them. So perhaps this paragraph signals a dissent from the decision to review the case at all more than a view of the legal merits.
To the extent it is making a legal argument, though, I don’t quite see the argument. How is it “micromanaging day-to-day business” to grant a cert petition filed at the end of the state review process? Given that reasonableness is ultimately a legal question, how is the Court “usurpring the role of the factfinder”? Further, why does it matter that the decision reviewed is state or federal? The lower court was applying the federal Constitution. Is Stevens suggesting that state court interpretations of the federal constitution are entitled to deference? Justice Stevens isn’t known for his passion for federalism, so this seems like an unusual context to raise federalism concerns.
On the other hand, Justice Stevens’ opinion in this case shares some themes with his solo dissents in Fourth Amendment qualified immunity cases like Scott v. Harris, 550 U.S. 372 (2007), and Brosseau v. Haugen, 543 U.S. 194 (2004) . Those cases involved the reasonableness of a use of force under the Fourth Amendment. In both cases Justice Stevens wanted the jury, rather than the Court, to answer reasonableness.
Alternatively, perhaps that last paragraph of Michigan v. Fisher goes only to the question of whether the Court should have reviewed the case at all. That’s possible, but I’m not entirely sure one way or the other.
Mark N. says:
From the set of cases you mentioned, it sounds like Stevens feels that determining reasonableness is sufficiently “fact-intensive”, since it depends in detail on the precise facts of each case, that judging it more resembles a question of fact than a question of law. Put differently, the standard for reasonableness is a matter of law, but whether a particular officer in particular circumstances did or did not meet that standard is a question of fact to be judged (in Stevens’s view) by the factfinder, ideally the jury.
December 7, 2009, 8:58 pmTim says:
I read that, too. Personally, I hope on remand they reach the same conclusion, and SCOTUS denies cert.
December 7, 2009, 9:01 pmOrin Kerr says:
Mark N — Yes, I think that is how Stevens sees it.
December 7, 2009, 9:16 pmTim says:
Do you disagree? It seems that your research has touched reasonably close to this issue that your opinion could certainly be relevant.
December 7, 2009, 9:23 pmMurray says:
Stevens has for a long time argued against the Court reviewing cases in which a state court has arguably over-protected constitutional rights. See Mazzone, When the Supreme Court is Not Supreme, at http://ssrn.com/abstract=1348593
December 7, 2009, 9:30 pmFantasiaWHT says:
I think that for every “reasonableness” test, the jury should always be the one to answer the questions. I’m sorry, but I trust a unanimous agreement of 12 (or even 5/6ths in some civil settings) lay people as to what’s reasonable way more than I trust a single judge (or even a majority of 5/9) as to what’s reasonable.
“Reasonable as a matter of law” just makes me cringe
December 7, 2009, 9:33 pmDuffy Pratt says:
I also agree with Mark N. I’d just like to add that it’s interesting that Sotomayor, as the only Justice with experience as a trial judge, joined him. Trial judges become acutely aware that whether something is a question of fact or law is a matter of where the power lies. When drafting findings of facts and conclusions of law after a judge trial, as much as possible got squeezed into the findings of fact, to minimize the chances of reversal. Similarly, its a pretty familiar trick for a judge on appeal to take control of an issue (or to duck an issue) simply by playing with this characterization.
December 7, 2009, 9:38 pmOrin Kerr says:
That’s helpful, Murray.
Tim: It depends. I think Stevens’ version of reasonableness is pretty foreign and hard to understand, but the broader question of rules and standards in Fourth Amendment law is a question for an article, not a blog comment. (I have fiddled with an article on this topic before.)
Fantasia WHT says:
Does this include when the Supreme Court has made up the reasonableness standard in the first place? For example, the Supreme Court essentially invented the reasonableness excessive force concept in the 1980s. Do you think they were right to do so?
December 7, 2009, 9:41 pmOrin Kerr says:
Duffy,
One of the interesting aspects of the Stevens dissent is that it does not appear to say what the actual finding of the trial court was to which he would defer.
December 7, 2009, 9:44 pmHauk says:
When drafting findings of facts and conclusions of law after a judge trial, as much as possible got squeezed into the findings of fact, to minimize the chances of reversal.
Certain trial judges (and particularly appellate judges who sit by designation) have become masters at phrasing most conclusions of law as findings at fact, and most findings of fact as credibility determinations. It’s quite entertaining to watch them at work.
December 7, 2009, 9:45 pmarbitraryaardvark says:
Procedurally, is it too late for D to raise a state constitutional search and seizure claim in a renewed motion to suppress on remand?
December 7, 2009, 11:26 pmI can see where the court was going with this, but I’m a bit troubled by the “we need to violate your rights to help you” approach.
That there could have been someone else inside is an exigent circumstance. If there wasn’t, he might have a defense of justification for pointing the gun while inside his home while being attacked by people claiming to be police offficers who have disregarded a request to get a warrant.
CrazyTrain says:
Actually Orin, I am surprised I recognized Stevens’ “state court” thing and you didn’t. You’re the 4th Amendment expert, and I am just an IP lawyer in private practice.
The position re the Supremes not getting involved in state court cases where the state court rules in favor of a federal right is a long one in Stevens’ personal jurisprudence. Specifically, see his dissent in Michigan v. Long, where he takes the position that the Supremes should not go out of their way to grant cert in state cases where the state court ruled in favor of a federal right. His statement here is clearly a continuation of that theme (which he has mentioned in other cases). An interesting policy position by Justice Stevens, but as another Justice pointed out, the position is in serious tension with the fact that Supreme Court jurisdiction used to be as Justice Stevens wanted it, but Congress changed the law some time ago to expand jurisdiction to give the Supremes the right to say a state court erred in ruling in favor of a federal right.
December 7, 2009, 11:28 pmJacob Berlove says:
Crazy Train, you beat me to it. Stevens doesn’t like SCOTUS overrulling pro-defendant state court rulings. However, I suspect SOtomayor joined the dissent for the reasons stated by Orin.
December 7, 2009, 11:37 pmgeorge weiss says:
here is the thing-there is a conflation of legal standards.
the opinion starts with the idea that the touchstone of the 4th amendment is reasonableness…as per the text of the 4th. that is a general reasonableness…a reasonableness which is subject to further legal definitions (i.e all the exceptions and rules for warrants)
but that’s generally. in this specific case the test is a reasonableness (not of the search as a whole per se) but of the probability that there is exigence. Stevens is saying that is already a specific enough standard that it is a question of fact..not law…unless the Court below’s opinion is wildly wrong…or…perhaps..unreasonable (graon).
the legal profession is addicted to the word reasonable…it creates problems.
December 7, 2009, 11:39 pmJacob Berlove says:
FWIW, the “Stevens state court thing” comes out very clearly in today’s oral argument in Florida v. Powell.
December 7, 2009, 11:39 pmJonathan says:
Stevens doesn’t seem to take issue with the “historical” fact-finding, e.g. how much blood there was. Beyond that, the fact/law distinction isn’t all that clear in this case. The factual question Stevens identifies is whether the officer had an objectively reasonable belief that Fisher was seriously injured. On one hand, that question doesn’t sound all that different in nature from other 4th Amend reasonableness determinations (e.g. reasonable suspicion and probable cause), making the dissent hard to square with Ornelas v. United States, in which the Court held that reasonable suspicion & probable cause were mixed questions of law & fact to be reviewed de novo. On the other hand, the question of the seriousness of the injury is probably a bit less “law” intensive than questions about whether the defendant was involved in criminal activity or the likelihood evidence of a crime was to be found.
December 8, 2009, 1:04 amgeorge weiss says:
johnathan took the words out of my mouth.
problem is what the standard of review for a police officer’s determination of exigence when the rule is it must be reasonable.
tried to post this earlier but having problems
December 8, 2009, 1:32 amreadery says:
Justice Stephens has long taken the view that state interpretations of the Federal constitution are entitled to deference, particularly when they are more liberal than the Supreme Court’s.
December 8, 2009, 2:13 ampostdlf says:
Contrary to some of the earlier posters’ assertions, you obviously can’t have a jury determining whether a search was reasonable where the issue is whether evidence should be suppressed under the Fourth Amendment. Evidentiary issues are always for the judge alone to decide.
December 8, 2009, 9:39 amN.B. says:
See, e.g., Danforth v. Minnesota, written by Stevens.
December 8, 2009, 9:39 amJoe says:
Stevens was no fan of them taking BRIGHAM CITY v. STUART in the first place, as his concurrence in that case underlines.
December 8, 2009, 11:21 amSCOTUSblog » Where is the Fourth Amendment docket? says:
[...] business of state tribunals making fact-intensive decisions of this kind.” As I wrote elsewhere when the decision came down, “The most surprising aspect of the case is the Court’s [...]
April 14, 2010, 12:48 am