The Volokh Conspiracy

Today’s decision in United States v. Jones holds that the Katz test is not the exclusive test for what is a Fourth Amendment search: When the government conducts a common-law trespass into a person, house, paper, or effects, that trespass is a search if it is done “for the purpose of obtaining information.” Three questions come to mind about what this means:

1) What kind of “trespass” counts for purposes of this test? As Blackstone noted in his Commentaries (Vol. 3. Ch 12), at common law there were two understandings of “trespass” — a broad one and a narrow one. Blackstone wrote:

Trespass, in its largest and most extensive sense, signifies any transgression or offence against the law of nature, of society, or of the country in which we live, whether it relates to a man’s person or his property. Therefore, beating another is a trespass, for which (as we have formerly seen) an action of trespass vi et armis in assault and oattery will lie; taking or detaining a man’s goods are respectively trespasses, for which an action of trespass vi et armis, or on the case in trover and conversion, is given by the law: so also, non-performance of promises or undertakings is a trespass, upon which an action of trespass on the case in assumpsit is grounded: and, in general, any misfeasance or act of one man whereby another is injuriously treated or damnified is a transgression or trespass in its largest sense: for which we have already seen(a) that whenever the act itself is directly and immediately injurious to the person or property of another, and therefore necessarily accompanied with some force, an action of trespass vi et armis will lie; but, if the injury is only consequential, a special action of trespass on the case may be brought.

But, in the limited and confined sense in which we are at present to consider it, it signifies no more than an entry on another man’s ground without a lawful authority, and doing some damage, however inconsiderable, to his real property.

So which conception of trespass does Scalia mean to adopt — the broad one or the narrow one? Scalia says that he has “no doubt” that there was a trespass here, but he doesn’t say why or what kind of trespass he has in mind. Scalia quotes Entick v. Carrington for the idea that setting foot on a neighbor’s “close” and “tread[ing] upon his neighbor’s ground” is a trespass. It seems that Entick was relying on the narrow trespass concept of trespass to land, which, after all, was the cause of action alleged in Entick. That obviously isn’t the case in Jones, though: The agents installed the GPS device when the car was parked in a public parking lot, so there was no trespass to land in the traditional sense.

In his concurring opinion, Justice Alito indicates that he takes the majority to be referring to a trespass to chattels cause of action, but as far as I can tell the majority never establishes this. Moreover, the common law doesn’t seem to provide an answer: The common law of searches and seizures provided a defense to a civil tort action, not an independent cause of action. So it’s hard to know what kind of conduct counts as a “trespass” for purposes of the new Fourth Amendment test.

2) Did Jones unintentionally make the use of undercover agents and informants illegal, at least without a warrant or probable cause? This is a long shot, to be sure, but it’s not a frivolous argument. The common law of trespass included the doctrine of trespass ab initio, by which a person who was permitted to come on to your land could be guilty of trespass if they engaged in some sort of misconduct once there. In the first Fourth Amendment challenge to the use of informants, On Lee v. United States, 343 U.S. 747 (1952), the defendant tried to invoke this doctrine. Lee sold opium from his laundry store and one day made incriminating statements to his friend Poy. It turned out that Poy was an undercover informant wearing a wire, and the recording of Lee’s statements was used against Lee at trial. Lee argued (among other things) that Poy’s misleading him rendered Lee a trespasser ab initio, such that Poy’s entry was a Fourth Amendment search. Justice Jackson rejected the argument:

Petitioner contends, however, that Chin Poy’s subsequent ‘unlawful conduct’ vitiated the consent and rendered his entry a trespass ab initio.

If we were to assume that Chin Poy’s conduct was unlawful and consider this argument as an original proposition, it is doubtful that the niceties of tort law initiated almost two and a half centuries ago by the case of the Six Carpenters, 8 Coke 146(a), cited by petitioner, are of much aid in determining rights under the Fourth Amendment. But petitioner’s argument comes a quarter of a century too late: this contention was decided adversely to him in McGuire v. United States, 273 U.S. 95, 98, 100, 47 S.Ct. 259, 260, 261, 71 L.Ed. 556, where Mr. Justice Stone, speaking for a unanimous Court, said of the doctrine of trespass ab initio: ‘This fiction, obviously invoked in support of a policy of penalizing the unauthorized acts of those who had entered under authority of law, has only been applied as a rule of liability in civil actions against them. Its extension is not favored.’ He concluded that the Court would not resort to ‘a fiction whose origin, history, and purpose do not justify its application where the right of the government to make use of evidence is involved.’ This was followed in Zap v. United States, 328 U.S. 624, 629, 66 S.Ct. 1277, 1279, 90 L.Ed. 1477.

By the same token, the claim that Chin Poy’s entrance was a trespass because consent to his entry was obtained by fraud must be rejected. Whether an entry such as this, without any affirmative misrepresentation, would be a trespass under orthodox tort law is not at all clear. See Prosser on Torts, s 18. But the rational of the McGuire case rejects such fine-spun doctrines for exclusion of evidence.

Does the rationale of McGuire survive Jones? If the test for a Fourth Amendment search is established by common law trespass doctrine, then I’m not sure why the “fiction” of trespass ab initio shouldn’t be restored to the Fourth Amendment despite McGuire. As a practical matter, I doubt the Supreme Court would go this way. But if you take the majority opinion in Jones at face value, it seems like an argument worth making.

3) What happens to Kyllo’s “general public use” exception? I read Jones as relying on Kyllo for the idea that there is more than just the Katz test to determine what is a search. I gather then that the Court is casting Kyllo as an example of a case which was not a Katz “reasonable expectation of privacy” case but rather was a common law trespass case. If that’s right, then does that mean the “general public use” inquiry is no longer applicable? After all, the general public use idea was rooted in Katz cases, not the common law of trespass. If use of a thermal imaging device was a search because it was a common law trespass, then presumably it should stay a search regardless of how common thermal imaging devices may be.

One of the puzzles of Jones is how Scalia’s opinion ended up being the majority opinion of the Court, while Justice Alito’s view is merely a concurring opinion. The puzzle is that the apparent 5th vote for the Jones majority, from Justice Sotomayor, wrote a concurrence strongly hinting that she would accept a far broader rationale something akin to that in Justice Alito’s concurrence in the judgment. The question is, why sign on to Scalia’s opinion instead of Alito’s?

There are a bunch of possible reasons, of course, but one possibility involves the timing of circulated drafts. The Chief assigned the majority opinion to Scalia, who had floated his theory of the case at oral argument. Imagine Scalia circulated his majority opinion quickly, and Sotomayor joined it pretty soon after that. Some time passed, and then Justice Alito sent around his concurring opinion. Justice Alito’s opinion is mostly a criticism of Scalia’s approach, but it then has a relatively brief pro-privacy section at the end that addresses questions not reached by Scalia’s opinion. Imagine Sotomayor read Alito’s opinion and really liked that part of Alito’s opinion. But she had already signed on to Scalia’s draft majority, and it’s considered bad form to un-join an opinion after signing on. It’s especially bad form if you followed the common practice of asking for a few changes to the draft majority opinion as a condition of signing it. Also, while Alito hinted at how he would decide the case, that section is relative brief and quite vague. So Sotomayor might have stuck with Scalia’s opinion as a matter of propriety and good internal court relations, and then written her solo concurring opinion indicating her agreement with much (although by no means all) of Alito’s opinion.

Of course, that’s just one possibility among many.

UPDATE: Over at SCOTUSblog, Tom Goldstein notes a point that I simply missed on my initial reading of the opinions: Alito’s concurring opinion not only rejects the new trespass theory, but further indicates that the installation and short-term monitoring is fine — it’s only long-term monitoring that Alito would say is regulated by the Fourth Amendment. So Sotomayor’s choice wasn’t between a narrow and broad theory, as I had initially surmised, but between two very different theories. Sotomayor joined one and indicated strongly that she would likely favor the other, but she didn’t need to reach that; doing would have required a United States v. Booker-esque combination of two sets of Justices, which in addition to being complicated wasn’t needed because at least the result was settled in this case.

In a response to my recent post, Originalism and Civil Damages for Fourth Amendment Violations, Michael Ramsey argues at The Originalism Blog that there is a way to square originalist opposition to the exclusionary rule with originalist embrace of doctrines cutting back on Fourth Amendment civil remedies. The basic idea is that the civil causes of action such as Bivens and Section 1983 that the Court often interprets are not the true descendants of the civil causes of actions at common law, but rather are special federal causes of action that exist in addition to those remedies. At common law, the law of search and seizure was a defense to a tort suit. If the King’s officials entered a home with a warrant, the homeowner could sue for trespass, and the valid warrant would serve as an affirmative defense. Ramsey argues that Section 1983 and Bivens are different causes of action that go beyond this role:

Bivens claimed a basis in the Constitution, but it didn’t arise from the Constitution’s original meaning; an originalist would more likely think of Bivens as a creation of federal common law (which doesn’t necessarily mean it was illegitimate, just that it wasn’t constitutionally required). That explains, though, why the Court in cases like Anderson felt free to engage in what was (as Professor Kerr suggests) basically common law rulemaking rather than originalism. It was common law rulemaking, because all of Bivens, from which Anderson arose, is sub-constitutional federal common law.

It’s important to distinguish Anderson from two other sorts of suits for Fourth Amendment violations: (1) Fourth Amendment (really, Fourteenth Amendment) claims against state and local officials brought under the federal statute 42 U.S.C. 1983 (Section 1983 claims), and (2) state law claims (e.g., for trespass or battery) brought against federal, state or local officers. Neither of these is a constitutional claim and so they don’t raise issues of constitutional originalism.

Under Section 1983, courts have found implied qualified immunity (or in some situations absolute immunity) as a matter of statutory interpretation – perhaps wrongly, but that’s not of constitutional concern. As to state law claims, I would think federal courts couldn’t impose requirements like qualified immunity (whether Congress could is a different question). But states aren’t obligated to allow such claims at all, so they have latitude to impose such limitations themselves. The only place in this field that I know of where federal courts are creating non-statutory federal immunities is in Bivens claims (like Anderson). But they are doing it as a matter of common law, not constitutional law.

I really like this argument, although it has a fascinating implication: It suggests that existing immunity doctrines for state law tort suits against government officials may be unconstitutional, as they impermissibly fall below the floor of the original Fourth Amendment. By way of context, it is common for state tort law to have created a form of qualified immunity that applies when state officials are sued in state court for conduct undertaken as part of their official duties. Further, federal officers are protected from state tort causes of action for conduct in the course of their official duties by the Westfall Act. If Professor Ramsey is right, however, an originalist might conclude that these doctrines are unconstitutional. The state tort law causes of action must be preserved without immunity doctrines because they are the lineal descendants of the common law causes of action for tort in which common law search and seizure questions could be raised by the officers as an affirmative defense.

Originalists are often opposed to the exclusionary rule, the rule that evidence obtained in violation of the Fourth Amendment cannot be used in court. The exclusionary rule was made up by 19th and 20th century judges, the argument runs. At common law, the remedies for violations of search and seizure law were civil damages against the officers, not exclusion of evidence. Because the Fourth Amendment is widely recognized to have adopted and endorsed those cases, such as Entick v. Carrington (1765), the exclusionary rule must be abolished. It simply is not part of the original Fourth Amendment remedies observed in cases like Entick.

I’m not entirely sure that’s correct, but let’s assume it is. Here’s my question: If you’re an originalist, does that mean that you think the Constitution guarantees the civil remedies that existed at common law for search and seizure violations? Put another way, can modern judges change the civil remedies that were available at common law for constitutional violations? Or is there a civil remedies scheme that must be available under an originalist understanding of the Fourth Amendment?

I ask that in part because I often encounter a very strange disconnect when originalists discuss the exclusionary rule versus civil damages as a means of enforcing the Fourth Amendment. In discussing the exclusionary rule, most originalists contend that the Fourth Amendment can only be enforced as it was at common law. On the other hand, in discussing civil damages, self-described originalists often seem to go all living constitutionalist: Suddenly the scope of civil damages is just a question of policy, not originalism, and often that means inventing new limitations on damages or following Warren Court-era precedents that did so. I’m curious: Is there a genuine way to reconcile these two sets of beliefs?

Consider the views of Justice Scalia. Scalia has suggested that we should abolish the exclusionary rule, and for years he has tried to move Fourth Amendment law into more of what he sees as an originalist mold. But when it comes to civil damages, Justice Scalia has scoffed at the idea of reinstating the kind of civil liability that existed at common law for search and seizure violations.

The big issue is qualified immunity for Fourth Amendment violations, an idea that was largely introduced in 1967 in a decision by Chief Justice Earl Warren, Pierson v. Ray. Qualified immunity cuts back dramatically on the scope of civil damages for Fourth Amendment violations. And yet the major decision that established the law of qualified immunity against police officers conducting searches and seizures was Anderson v. Creighton, written by — you guessed it — Justice Scalia.

In Creighton, Justice Scalia rejected the idea that the damages that should be available for Fourth Amendment violations should be the damages that were available at common law, before the 1960s-era introduction of qualified immunity for officers. The Creightons argued that qualified immunity should not apply to their Fourth Amendment claim against the officers who searched their home because no such doctrine would have applied at common law, citing Entick v. Carrington. Justice Scalia disagreed:

[W]e have never suggested that the precise contours of official immunity can and should be slavishly derived from the often arcane rules of the common law. That notion is plainly contradicted by Harlow [v. Fitzgerald,457 U.S. 800 (1982)], where the Court completely reformulated qualified immunity along principles not at all embodied in the common law, replacing the inquiry into subjective malice so frequently required at common law with an objective inquiry into the legal reasonableness of the official action. As we noted before, Harlow clearly expressed the understanding that the general principle of qualified immunity it established would be applied “across the board.”

The approach suggested by the Creightons would introduce into qualified immunity analysis a complexity rivaling that which we found sufficiently daunting to deter us from tailoring the doctrine to the nature of officials’ duties or of the rights allegedly violated. Just in the field of unlawful arrests, for example, a cursory examination of the Restatement (Second) of Torts (1965) suggests that special exceptions from the general rule of qualified immunity would have to be made for arrests pursuant to a warrant but outside the jurisdiction of the issuing authority, §§ 122, 129(a), arrests after the warrant had lapsed, §§ 122, 130(a), and arrests without a warrant, § 121. . . .

The general rule of qualified immunity is intended to provide government officials with the ability “reasonably [to] anticipate when their conduct may give rise to liability for damages.” Davis, 468 U.S. at 468 U. S. 195. Where that rule is applicable, officials can know that they will not be held personally liable as long as their actions are reasonable in light of current American law. That security would be utterly defeated if officials were unable to determine whether they were protected by the rule without entangling themselves in the vagaries of the English and American common law.

That’s a good legal argument, based on common rationales such as precedent, the need for a sensible rule as a matter of judge-made policy, and the need to find an administrable rule. But isn’t it a pretty strange argument for an originalist to make?

I don’t mean to pick on Justice Scalia. My question is really about originalism and remedies for constitutional violations more generally. To what extent does an originalist interpretation require adopting the original remedies available at common law for search and seizure violations? And if the right answer is that it does, at least to some extent, does that mean that the Court should constitutionalize the common law civil remedies scheme? And specifically, should an originalist believe that recently-invented doctrine of qualified immunity against police officers for unreasonable searches and seizures falls below the floor of the constitutionally-required scheme of civil damages?

Kevin Walsh flags a very unusual Fourth Amendment case out of the Fourth Circuit that reaches a rather surprising holding: The police violate the Fourth Amendment, justifying suppression of the evidence, when the police use a knife to remove drugs tied around a suspect’s private parts during a search incident to arrest. The case is United States v. Edwards.

First, the facts. For fans of The Wire – cue the music – the case occurred in Baltimore in the Northern District. The police obtained a search warrant for a known drug dealer, Joseph Edwards, who was quite familiar to the officers. Edwards had earlier illegally brandished a weapon in front of two women. The police knew the neighborhoods where Edwards hung out, so they went there at night and saw him and placed him under arrest based on the authority of the warrant. Before putting Edwards in the police van to be transported to the station, the officers decided to check his crotch for guns or drugs. One of the officers testified that this was a common practice: ” You know, it’s unpleasant for everybody involved. But if you have reason to believe that there might be something, then it’s a good idea to check, because often they do hide things down there.”

Four male officers surrounded Edwards. One officer loosened Edwards’s belt and stretched his pants and underwear out about six inches away from his body, and the officers directed a flashlight to see if anything unusual was there. As it turned out, there was indeed something unusual: Edwards had a clear plastic sandwich bag containing 43 smaller baggies of crack all wrapped around his penis. One of the officers put on gloves, took a knife he had with him, and cut the sandwich bag off. Edwards was unharmed, and the discovery of the crack led to crack possession charges.

In today’s opinion, a divided Fourth Circuit rules that the crack must be suppressed. Using the knife to remove the baggie was constitutionally unreasonable because Edwards could have gotten hurt, the court rules, even thought he wasn’t:

We conclude that Bailey’s use of a knife in cutting the sandwich baggie off Edwards’ penis posed a significant and an unnecessary risk of injury to Edwards, transgressing well-settled standards of reasonableness. The fortuity that Edwards was not injured in the course of this action does not substantiate its safety. The district court found that the entire search took place at “approximately 11:30 [at night], in a dark area.” While the officers used a flashlight when searching inside Edwards’ underwear, they did not continue to use the flash- light when Bailey removed the baggie containing the susected drugs with his knife.

The government contends that because Bailey knew that Edwards was being arrested for a handgun violation, the search inside Edwards’ underwear was reasonable to ensure that the police had not missed finding a weapon during the earlier pat-down search. . . . .[A]ssuming, without deciding, that the government’s rationale supports the reasonableness of the decision to search inside Edwards’ underwear, this rationale does not justify the dangerous manner in which the contraband was retrieved from his genital area once the contraband was discovered. In fact, the government provides no reason whatsoever why the concealed contraband, once the police had determined that it clearly was not a handgun, could not have been removed under circumstances less dangerous to Edwards.

We do not suggest that after discovering contraband concealed under a suspect’s clothing, officers are required to permit the suspect to remove the contraband. . . . [I]n the present case, there were several alternatives available to the officers for removing the baggie from Edwards’ penis, which neither would have compromised the officers’ safety nor the safety of Edwards. These alternatives included untying the baggie, removing it by hand, tearing the baggie, requesting that blunt scissors be brought to the scene to remove the baggie, or removing the baggie by other non-dangerous means in any private, well-lit area. Thus, we conclude that, in the absence of exigent circumstances, the right of the police to seize contraband from inside Edwards’ underwear did not give the officers license to employ a method creating a significant and unnecessary risk of injury.

I’m not persuaded. The officers had arrested Edwards pursuant to a valid warrant, and they were conducting a search incident to arrest. Under United States v. Robinson, that allows a full search of the person, which I would think would include checking out whether a suspect has hidden drugs or a gun on their body. The court uses the Bell v. Wolfish framework to determine whether the search of Edwards was reasonable, but that seems like the wrong doctrinal box: While Bell is the framework for searches for drugs and guns on the person once arrestees arrive at the jail, here the controversial step was using the knife to remove the drugs. Using the knife wasn’t a search at all: It was a means used to seize drugs that had been found in plain view during a search incident to arrest. It could be litigated as an excessive force civil claim, but I don’t think it implicates the constitutionality of the search that preceded it or triggers Bell.

Even if you accept that Bell‘s framework applies, I’m not aware of a precedent that supports such micromanaging of the details of a search. The court’s opinion announces that the police can use “blunt scissors” to remove a baggie of crack from around an arrestee’s penis, but the United States Constitution prohibits using a “knife” to do it — apparently because the latter poses unnecessary risks while the former does not. While most of us can recognize and appreciate the Court’s concerns, I don’t think that a suspect’s decision to tie a bag of crack around his johnson triggers such heightened scrutiny of the means of removal when the cops arrest him on a warrant and search him incident to arrest. That’s all the more true because Edwards wasn’t actually injured when the officers removed the bag.

A recent decision of the District of New Mexico, United States v. Rodriguez, 2011 WL 6739498 (D.N.M. Dec. 8, 2011) (Browning, J.) , addresses an issue of Fourth Amendment law that touches on Second Amendment concerns: In a concealed carry state, does police observation that a person is in possession of a concealed weapon create “reasonable suspicion” justifying a stop and frisk for a potential violation of the state’s concealed carry law? The court concludes that it does, although that conclusion strikes me as incorrect.

The facts of the case are complicated, but here are the basics. A local 911 dispatcher received a call from a woman who reported that she had just seen two employees of a convenience store show their handguns to each other while inside the store. The caller indicated that both of the employees were carrying the guns on their persons. Officer Munoz was dispatched to the convenience store, which was located in a high-crime neighborhood and which Munoz had visited in response to police calls many times before. Munoz entered the store and saw an employee restocking some products. When the employee bent over one of the shelves, the officer could see a handgun tucked in the waistband of the back of his pants. The officer asked the employee to step outside, and he grabbed the gun from the employee’s waistband for officer safety purposes. Once outside, the officer asked the employee if he had a permit to carry the gun. The employee, Rodriguez, said he did not. The gun turned out to be a loaded Smith and Wesson .357 magnum revolver. The officer arrested the employee for violating New Mexico law on carrying a concealed loaded firearm, which states in relevant part:

30-7-2. Unlawful carrying of a deadly weapon.

A. Unlawful carrying of a deadly weapon consists of carrying a concealed loaded firearm or any other type of deadly weapon anywhere, except in the following cases: . . . by a person in possession of a valid concealed handgun license issued to him by the department of public safety pursuant to the provisions of the Concealed Handgun Carry Act [29-19-1 NMSA 1978].
B. Nothing in this section shall be construed to prevent the carrying of any unloaded firearm.
C. Whoever commits unlawful carrying of a deadly weapon is guilty of a petty misdemeanor.

It turned out that the employee had a felony record, and he was therefore charged in federal court with being a felon in possession. He has here challenged the “stop and frisk” which lead to the exchange in which Rodriguez acknowledged that he had no permit, thus leading to his arrest. Whether the “stop” was lawful depends on whether the officers had “reasonable suspicion,” based on specific and articulable facts, that the employee was engaged in illegal activity. Whether the frisk that retrieved the gun was lawful depends on whether the officers had specific and articulable facts that the suspect was armed and dangerous.

The District Court, per Judge James O. Browning, concludes that seeing the gun on Rodriguez created reasonable suspicion justifying the stop:

When the officers arrived at the convenience store, through their own observations, they saw the gun concealed under Rodriguez’ shirt and tucked into his waistband. While it is true, as Rodriguez has argued, that he may have been able to possess the handgun under N.M.S.A.1978, § 30–7–2(A)(1), the Tenth Circuit and the Supreme Court have recognized that, even when conduct may have been legal under state law, such possibility does not automatically preclude reasonable suspicion to conduct an investigatory stop. See United States v. King, 990 F.2d at 1556 (“[W]holly lawful conduct might justify the suspicion that criminal activity was afoot.” (alteration in original)(quoting Reid v. Georgia, 448 U.S. at 442)). More specifically, the Tenth Circuit has recognized this principle in the context of New Mexico laws on carrying concealed weapons. See United States v. King, 990 F.2d at 1556.

The officers could have concluded, based on their observations, that Rodriguez would require a license to lawfully carry a concealed firearm. See N.M.S.A.1978, § 30–7–2(A)(5) (providing as an exception to the law that “carrying of a deadly weapon” is an offense when the person is “in possession of a valid concealed handgun license issued to him by the department of public safety pursuant to the provisions of the Concealed Handgun Carry Act”). Additionally, New Mexico law expressly permits officers to inquire of persons carrying a concealed handgun whether they have a license to do so. See N.M.Code R. § 10.8.2.16 (“A licensee carrying a concealed handgun on or about his person in public shall, upon demand by a peace officer, display his license to carry a concealed handgun.”). The officers observed Rodriguez’ concealed firearm before interacting with him or communicating with him. . . . Other facts that support the existence of reasonable suspicion are that Munoz was aware that the convenience store was in a high crime area in town, and he had been to this particular gas station in the past numerous times to investigate reports of criminal conduct. See United States v. Arvizu, 534 U.S. 266 (2002)(recognizing that officers are “entitled to make an assessment of the situation in light of his specialized training and familiarity with the customs of the area’s inhabitants.”); Ornelas v. United States, 517 U.S. 690, 699 (1996)(“[A] police officer views the facts through the lens of his police experience and expertise. The background facts provide a context for the historical facts, and when seen together yield inferences that deserve deference.”). Under these facts, the most important fact being the officers’ firsthand observation of the firearm, the officers had reasonable suspicion that Rodriguez was carrying a firearm in violation of New Mexico law.

These facts make this case similar to the Fourth Circuit’s United States v. Black decision. The Fourth Circuit in that case found that reasonable suspicion existed to detain a defendant for carrying a concealed firearm in violation of state law based on the following facts: (i) the officer knew that the area was a high crime area in which the officer had made numerous arrests; (ii) while the officers were talking to the defendant, he had his “right hand awkwardly inserted halfway in his right-hand pocket, ‘cupped’ as if ‘grasping an object’ “; (iii) the defendant hesitated to remove his hand from his pocket when requested to do so; (iv) after the defendant removed his hand, the officer observed a bulge in the defendant’s pocket; (v) the defendant lied about what was in his pocket, saying he had nothing in there other than his money and his identification; and (vi) after the defendant realized that the officers thought he was lying, he put his hand back in his pocket. See United States v. Black, 525 F.3d at 361–62. Notably, the officers in United States v. Black had reasonable suspicion even though they never observed the firearm before the investigatory detention began. In this case, the officers observed Rodriguez’ firearm tucked into his waistband. . . .

Rodriguez may object that the practical end result of the Court’s decision is that, in New Mexico, a police officer’s observation of a concealed handgun automatically creates reasonable suspicion. The Court acknowledges that this may be a possibility. One might object that, under the Second Amendment to the United States Constitution and state law, carrying a weapon is legal, and giving police authority to make an investigatory stop anytime they see lawful conduct is impermissible. Given that guns raise particular problems for law enforcement, making the wrong decision might not be reversible for the officer. The law tolerates some intrusion on lawful activity that presents police with ambiguous acts that could also be unlawful. In a free society, there must be a balance between legitimate police goals, public safety, and individual freedom. The Court believes that to hold that officers may not investigate this conduct under the facts of this case would unduly restrict legitimate police conduct that was reasonable under the circumstances.

According to the Court, the same facts justified taking away the gun for officer safety purposes:

While the gun was tucked into his waistband, it was immediately within Rodriguez’ reach. Munoz testified that he removed the weapon because he was concerned for officer safety. Given that the officers actually observed the firearm and that it was immediately within Rodriguez’ reach, “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio, 392 U.S. at 27. As the Tenth Circuit has likewise explained: “The presence of one firearm … certainly provides a law enforcement officer with a reasonable belief that the person being briefly detained may be carrying other deadly weapons.” United States v. Henning, 906 F.2d 1392 (citations omitted). Thus, under these circumstances, the officers properly obtained Rodriguez’ weapon from him to protect their safety.

The court’s analysis seems wrong to me. The officers saw a guy with a gun. A crime would be afoot only if the man lacked a proper permit. But the officers had no idea if the man had a permit to carry the gun at the time they made the stop: They didn’t inquire, and instead initiated the stop only upon seeing the gun. Obviously, if the officers had asked Rodriguez if he had a license before the stop, and he had said no, the officers would have had both reasonable suspicion and even probable cause to make the arrest. But I think they have to ask first and get evidence of the crime before the stop, not stop first and then get evidence to justify it. And the fact that this occurred in a high-crime neighborhood doesn’t make a difference: The suspect was an employee of a convenience store who was working in the store at the time, so it’s not like the nature of the neighborhood suggests he was more likely to be involved in crime himself.

The Fourth Circuit’s decision in Black seems clearly inapposite. In Black, the suspect acted suspiciously, hesitated to comply with officer’s demands, and outright lied to the officers, creating the suspicion that he was hiding something in his pocket. It was the appearance of deceitfulness that created the reasonable suspicion. In this case, by contrast, the employee did not act deceitfully. The officers decided to initiate the stop before the employee was asked a question or even knew the officers were there.

The Court’s frisk analysis also seems suspect. A frisk requires specific and articulable facts that the suspect is armed and dangerous. Obviously Rodriguez was armed. But in a state that allows concealed carry with a permit, it’s not clear that mere possession suggests danger to the officer. It may be argued that taking away the gun wasn’t so much a frisk as it was a seizure of the gun, but then I don’t see the probable cause that the gun was evidence of a crime needed to satisfy the plain view exception.

I would think the best argument for reasonable suspicion would be based on the fact that the gun was just tucked in the waistband of the guy’s pants rather than safely holstered, but the court does not address this possibility; I’ll leave to others whether the argument has any merit. Finally, I should note that even if the court’s analysis is wrong, which I think it is, that doesn’t mean the motion to suppress should have been granted. The court did not reach the government’s argument that the “inevitable discovery” exception to the exclusionary rule applied, and it sounds like it would fit neatly here: If the officers had not conducted a Terry stop, they would have asked the same questions and presumably received the same answers. (Hat tip: FourthAmendment.com)

SCOTUSblog flags a pending cert petition on an interesting Fourth Amendment question: What limits, if any, does the Fourth Amendment place on the use of a trained drug-sniffing dog to approach the front door of a home? The police might do this to see if the dog will alert for the presence of narcotics in the home, which might then be used to help show probable cause and obtain a warrant to search it. Under Illinois v. Caballes, the use of the dog around a car is not a “search” and therefore outside the Fourth Amendment. The question is, does the Caballes rule apply when the dog is brought to the front door of a home rather than a car? A divided Florida Supreme Court ruled in Jardines v. State that Caballes does not apply and that probable cause is required to bring the dog up to the home for a sniff.

This may seem like the kind of minutiae that only a law nerd could love, but I think it rests on some very interesting puzzles of Fourth Amendment law. There are hundreds of different investigatory practices that the police might use to collect evidence, and there is no single guide for how to classify particular practices as a “technique.” At the sae time, the law interpreting the Fourth Amendment has to end up classifying each use of each practice somehow. This creates lots of line-drawing and classification problems that come up in Fourth Amendment law all the time. In my view, the earlier case of a dog sniff around a car was tricky because the use of sense-enhancing devices often raise hard problems: Everyone agrees that use of human senses can’t themselves violate the Fourth Amendment (eyesight, hearing, smelling, etc.), and the Court has held that the use of some sense-enhancing devices is okay (such as flashights) while the use of other sense-enhancing devices crosses the line and becomes a search (such as the use of thermal imaging devices on a home). In the case of sniffs around a car, reasonable people can disagree for a number of reasons on how dog sniffs should fit in this framework. But once the Court announces the rule for the common case of the sniff around a car, as it did in Caballes, some officer is going to try to use the rule to see if it applies elsewhere, as in a search around a home. Use of the technique at a home changes its practical significance, however, creating a possible conflict between the kinds of pragmatic assessments that may have guided the rule-choice in the car setting and the need to explain how a practice can be a search at the front door of a home but not around a car.

So you could end up with judges going all sorts of different ways: some would say neither should be a search, others would say both should be, and some would say the home sniff is and the car sniff isn’t. To top it off, many people have extremely strong beliefs about what the correct answer is, so much that they think any other answer must reveal some sort of bad faith or idiocy. Fun stuff for Fourth Amendment nerds, anyway.

I’m pleased to say that the final version of my latest article has been posted at the journal’s website: An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 476 (2011).

During the oral argument a few weeks ago in United States v. Jones, Chief Justice Roberts had some very interesting questions about the Fourth Amendment’s “reasonable expectation of privacy” test. I fear that the Chief Justice’s questions may reflect a common misunderstanding of the test. In this post, I wanted to explain the Chief’s possible error, and explain how I think the reasonable expectation of privacy test is supposed to work.

I. The Possible Misunderstanding

The questions that grabbed my attention seemed to assume that the “reasonable expectation of privacy” test asks an empirical question — that a Fourth Amendment expectation of privacy is “reasonable” when reasonable people expect privacy. Just before the relevant exchange, Deputy SG Michael Dreeben had argued that using a GPS device on the suspect’s car could not have infringed the suspect’s reasonable expectation of privacy because it only revealed the suspect’s location in public. The Chief Justice responded:

CHIEF JUSTICE ROBERTS: I give you that, that it’s in public. Does the reasonable expectation of privacy trump that fact? In other words, if we ask people, do you think it’s — it violates your right to privacy to have this kind of information acquired, and everybody says yes, is it a response that, no, that takes place in public, or it simply the reasonable expectation of privacy regardless of the fact that it takes place in public?

MR. DREEBEN: Well, something that takes place in public isn’t inherently off limits to a reasonable expectation of privacy. That’s essentially the holding of Katz. You go into a phone booth, you’re in a public; making your calls within the phone booth is subject to a reasonable expectation of privacy. But this Court, with full awareness of that holding, in Knotts and in Karo recognized that surveillance of a vehicle traveling on the public roadways doesn’t fit that description.

CHIEF JUSTICE ROBERTS: You can see, though, can’t you, that 30 years ago if you asked people does it violate your privacy to be followed by a beeper, the police following you, you might get one answer, while today if you ask people does it violate your right to privacy to know that the police can have a record of every movement you made in the past month, they might see that differently?

A similar point came up later in the same argument when counsel for Jones argued that “society does not expect” monitoring like GPS monitoring and therefore it violates a reasonable expectation of privacy. Chief Justice Roberts responded by asking how we know what people think is a violation of privacy:

CHIEF JUSTICE ROBERTS: How do we tell? I mean, I don’t know what society expects. I suppose if you ask people do you think it’s a violation of privacy for the police to do this for no reason for a month, maybe they would come out one way. If you asked the people do you think the police have to have probable cause before they monitor for 5 minutes the movements of somebody they think is going to set off a huge bomb, maybe you get a different answer.

Interestingly, Chief Justice Roberts had a similar line of questioning during the April 2010 oral argument in City of Ontario v. Quon, which raised a question (that the Court ultimately did not answer) of whether people have a reasonable expectation of privacy in text messages. Quon was a police officer who had been given a text pager by the city; he had been told that he could use the pager for personal messages but that the city would audit the messages and that he had to pay for any overage charges caused by his personal messaging. The city ultimately did audit the messages, read them, and use them to embarrass Quon, and Quon claimed that this violated his Fourth Amendment rights. Chief Justice Roberts’ questioning again went to what privacy a reasonable person might expect:

CHIEF JUSTICE ROBERTS: Well, we are dealing with Mr. Quon’s reasonable expectations, right?

MR. RICHLAND: Yes, yes.

CHIEF JUSTICE ROBERTS: And even with the written policy, he has the instructions — everybody agrees — you can use this pager for private communications.

MR. RICHLAND: That’s correct.

CHIEF JUSTICE ROBERTS: We’re not going to audit them. Right? That’s what he said. He has to pay for them. Right? Now, most things, if you’re paying for them, they’re yours. And this — it particularly covered messages off-duty. Now, can’t you sort of put all those together and say that it would be reasonable for him to assume that private messages were his business?

It’s important not to make too much of questions at oral argument, of course. Sometimes oral argument questions are designed to play devil’s advocate, or to point out problems to other Justices. But my sense from both arguments is that Chief Justice Roberts may understand the “reasonable expectation of privacy” test to pose an empirical question: The Court determines when an expectation of privacy is “reasonable” by asking whether a reasonable person would expect a privacy right in those circumstances.

I think this understanding is incorrect, although I come across it often: Indeed, I have encountered it sufficiently often that I have responded to it here before. But given that the issue keeps coming up, I wanted to explain a bit more why I don’t think it’s correct.

II. What Makes an Expectation of Privacy Reasonable?

The trick to understanding this problem is that the phrase “reasonable expectation of privacy” is a legal term of art that shouldn’t be applied literally. As the Court explained in United States v. Jacobsen, “[t]he concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities.” Put another way ,a reasonable expectation of privacy is not the same as the expectation of privacy of a reasonable person. This point is clearer and less counterintuitive if we use the alternative articulation of the Katz test. The Court uses “reasonable expectation of privacy” and “legitimate expectation of privacy” interchangeably, but I think the latter term is less confusing and more revealing about what the test is and how it should be applied.

So if an expectation of privacy isn’t reasonable (or “legitimate”) when a reasonable person would have that expectation, when is it reasonable (or “legitimate”)? I think the most helpful explanation in the caselaw was authored by then-Justice Rehnquist in Rakas v. Illinois:

Obviously, however, a “legitimate” expectation of privacy. by definition. means more than a subjective expectation of not being discovered. A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as “legitimate.” His presence, in the words of Jones, 362 U.S. at 362 U. S. 267, is “wrongful”; his expectation is not “one that society is prepared to recognize as reasonable.’” Katz v. United States, 389 U.S. at 389 U. S. 361 (Harlan, J., concurring). And it would, of course, be merely tautological to fall back on the notion that those expectations of privacy which are legitimate depend primarily on cases deciding exclusionary rule issues in criminal cases. Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others, see W. Blackstone, Commentaries, Book 2, ch. 1, and one who owns or lawfully possesses or controls property will, in all likelihood, have a legitimate expectation of privacy by virtue of this right to exclude.

Expectations of privacy protected by the Fourth Amendment, of course, need not be based on a common law interest in real or personal property, or on the invasion of such an interest. These ideas were rejected both in Jones, supra, and Katz, supra. But, by focusing on legitimate expectations of privacy in Fourth Amendment jurisprudence, the Court has not altogether abandoned use of property concepts in determining the presence or absence of the privacy interests protected by that Amendment. No better demonstration of this proposition exists than the decision in Alderman v. United States, 394 U. S. 165 (1969), where the Court held that an individual’s property interest in his own home was so great as to allow him to object to electronic surveillance of conversations emanating from his home, even though he himself was not a party to the conversations. On the other hand, even a property interest in premises may not be sufficient to establish a legitimate expectation of privacy with respect to particular items located on the premises or activity conducted thereon. See Katz, supra at 389 U. S. 351; Lewis v. United States, 385 U. S. 206, 385 U. S. 210 (1966); United States v. Lee, 274 U. S. 559, 274 U. S. 563 (1927); Hester v. United States, 265 U. S. 57, 265 U. S. 58-59 (1924).

Rehnquist sharpens the analysis significantly in this passage, I think. He points out that the test isn’t about empirical expectations; that it’s not just a circular question; that it has to be rooted in some outside source; and that no one outside source is dispositive. Further, Rehnquist starts off the list of possible outside sources that can make an expectation of privacy reasonable: property is one, and “understandings that are recognized and permitted by society,” whatever that may mean, is another.

Back in 2006-07, I wrote an article that went through all of the Court’s “expectation of privacy” cases and developed a comprehensive list for what sources the Court has relied on: I called the article “Four Models of Fourth Amendment Protection,” as I found four different kinds of arguments (what I called “models”) that the Court has used to justify expectations of privacy. More broadly, that article tried to explain why the Court has used the different explanations, and why no one explanation suffices: The test for what is a search has to distinguish less invasive types of law enforcement steps from more invasive types of steps, all in a world in which the facts of investigations are constantly changing and new facts are arising, and no one test seems to do that in a way that can be readily administered in a complex court system.

Of course, that doesn’t mean that reliance on the four models is ideal, although as I explain in the article, I do think it has a lot of unrecognized benefits. And as I have explained more recently, it does facilitate the needed equilibrium-adjustment in cases that involve new technologies. But at a minimum, I think this does explain why the Court does not and should not apply the “reasonable expectation of privacy” test simply by asking when a reasonable person would expect privacy.

I visited the Supreme Court this morning for the oral arguments in Messerschmidt v. Millender, a Fourth Amendment qualified immunity case I wrote about here. The transcript of the argument should be available here later this afternoon, but I figured I would post a few thoughts about the oral argument in the meantime:

(1) On the whole, the questioning left the impression that the Justice see the case as significantly closer than I was expecting. I saw the case as a relatively straightforward reverse, but the lawyers for the petitioner received a lot of push-back. The most surprising push-back was from Justice Scalia, who I read as indicating that he thought the errors in the warrant were obvious. Scalia is usually a strong pro-law enforcement vote in Fourth Amendment remedies cases, so if he’s on the other side, it’s hard to know where the votes will line up.

(2) Justice Kagan asked a particularly important question: What if the warrant is fine in many respects, but then has one defect in the list of items to be seized? That is, what if the warrant was sufficiently particular as to the guns, but no reasonable officer could think it was sufficiently particular as to the evidence of gang-related activity? This is a hugely important question in practice because it’s unfortunately very common for warrants to have a “catch-all” entry in the list of items to be seized. An officer will write a particular warrant, and then, just to be inclusive, throw in an extra item to be seized that is overly broad. Suppression challenges based on these “catch-all” entries are common, but don’t go anywhere: Courts routinely hold that even though a catch-all provision was overly broad, the evidence seized fell within one of the other (particular) items to be seized so the exclusionary rule doesn’t apply. The Court may punt on this issue in Messerschmidt, perhaps by seeing it as a matter of remedies rather than general liability, but it’s a hugely important question.

(3) One of the issues was whether the qualified immunity issue should be resolved differently because the officer submitted the application for review to his bosses and the prosecutors for approval. Under current qualified immunity doctrine, the answer should be “no,” and I think that answer makes sense. The problem is that getting approval from another officer or a prosecutor is an uncertain check: Some will really scrutinize the materials, and others will just rubber-stamp them. Some will know the Fourth Amendment well, others won’t. Given the wide variance in how much submitting the materials actually acts as a check, I don’t think it makes sense for liability to hinge on the formality of submitting the materials. Of course, it’s good policy to require the officers to submit the applications anyway: If the bosses or prosecutor know what they’re doing, that will avoid an unconstitutional search. But I don’t think the formality of the process should matter.

(4) I wonder if some of my surprise about the pushback the Justices gave the lawyer for the petitioner goes to how errors in warrants end up appearing in the appellate record. In the usual qualified immunity case, the Justices have oral testimony about what happened. That oral testimony consists in part of statements from the officers, who of course will tend to give testimony that is favorable to them. Cases based on defects in warrants are different. Warrants are legal documents, and they appear reprinted in the appendix like any other record. I wouldn’t be surprised if that contexts makes Supreme Court Justices more sensitive to defects in warrants than defects in warrantless searches when applying the qualified immunity standard. Part of the dynamic may be that Justices are more sensitive to errors in legal documents, as they are used to reviewing them de novo: An error during a warrantless search may seem like an understandable error in an imagined fast-paced investigation, while an error in a legal document reprinted right there in the record might seem particularly obvious to a Justice reading the briefs in chambers years later. That might explain the Court’s 2004 decision in Groh v. Ramirez, as well.

On December 5th, the Supreme Court will hear oral argument in a Fourth Amendment case, Messerschmidt v. Millender, that concerns the particularity of search warrants and the qualified immunity standard. In this post, I’ll explain the facts and issues in the case and then offer my thoughts on how I think the Court should rule.

I. The Facts

Los Angeles police detective Curt Messerschmidt obtained an arrest warrant and search warrant for Jerry Ray Bowen, who was wanted for a domestic assault with a deadly weapon against his girlfriend, Shelly Kelly.  Kelly had tried to leave Bowen, and Bowen had responded with extreme violence when Kelly had called the cops to protect her. As the Ninth Circuit explained:

Bowen appeared and screamed, “I told you to never call the cops on me bitch!” Bowen physically assaulted Kelly and attempted to throw her over the top railing of the second story landing of their residence. Bowen grabbed Kelly, bit her, and tried to drag her by the hair back into their residence. When Kelly resisted by bracing herself against the door, Bowen grabbed both of Kelly’s arms, but Kelly was able to slip out of her shirt and run to her car. Bowen followed seconds later, now holding “a black sawed off shotgun with a pistol grip.” Standing in front of Kelly’s car, Bowen pointed the shotgun at Kelly and shouted, “If you try to leave, I’ll kill you bitch.” Kelly was able to escape by leaning over in her seat and flooring the gas. Bowen jumped out of the way and fired one shot at her, blowing out the front left tire of Kelly’s car. Chasing the car on foot, Bowen fired four more times in Kelly’s direction, missing her each time.

Detective Messerschmidt had considerable experience investigating gang members, and he conducted an “extensive background search” on Bowen using “departmental records, state computer records, and other police agency records.” His investigation revealed that Bowen “has gang ties to the Mona Park Crip gang based on information provided by the victim and the cal-gang data base.” (All quotes from the affidavit.) Detective Messerschmidt also knew, but did not include in the affidavit, that Bowen had a previous criminal record and was on summary probation for spousal battery and driving without a license. The detective obtained an arrest warrant and a search warrant to enter Bowen’s home, which was a home owned by Bowen’s foster mother, Augusta Millender.

The key to the Messerschmidt case is the particularity of the items authorized to be seized in the search warrant. The text of the Fourth Amendment requires that a search warrant must particularly describe the thing to be seized, and Fourth Amendment caselaw requires that there must be probable cause for each of the items to be seized. The items to be seized in the Bowen warrant were the following:

All handguns, rifles, or shotguns of any caliber, or any firearms capable of firing ammunition, or firearms or devices modified or designed to allow it to fire ammunition. All caliber of ammunition, miscellaneous gun parts, gun cleaning kits, holsters which could hold or have held any caliber handgun being sought. Any receipts or paperwork, showing the purchase, ownership, or possession of the handguns being sought. Any firearm for which there is no proof of ownership. Any firearm capable of firing or chambered to fire any caliber ammunition.

Articles of evidence showing street gang membership or affiliation with any Street Gang to include but not limited to any reference to “Mona Park Crips”, including writings or graffiti depicting gang membership, activity or identity. Articles of personal property tending to establish the identity of person in control of the premise or premises. Any photographs or photograph albums depicting persons, vehicles, weapons or locations, which may appear relevant to gang membership, or which may depict the item being sought and or believed to be evidence in the case being investigated on this warrant, or which may depict evidence of criminal activity. Additionally to include any gang indicia that would establish the persons being sought in this warrant, affiliation or membership with the “Mona Park Crips” street gang.

The Detective submitted the warrant for review within both the Sheriff’s office and the District Attorney’s office, and it was approved by both.

The search warrant was then executed, although the search proved almost entirely a flop. The police encountered twelve people at the home, but Bowen was not among them. The police did recover a shotgun and ammunition, but it was not Bowen’s: the shotgun was the personal shotgun of Bowen’s foster mother, Augusta Millender, and the ammo was a box of .45 caliber “American Eagle.” The only other evidence recovered was a letter from Social Services addressed to Bowen. The police arrested Bowen two weeks later at a hotel, where he was discovered hiding under a bed.

II. The Civil Case

The Millenders who owned the home searched filed suit against the officers who were involved in the search, alleging that the search and seizure violated the Fourth Amendment. The district court ruled that the arrest warrant authorizing the entry in the home and search for Bowen was valid, and that ruling was never appealed. Instead, the remaining litigation concerns the scope of the search warrant. Everyone agrees that the police had probable cause to enter and search the home for the sawed-off shotgun that Bowen used to fire at Kelly. But the Millenders claim that the warrant was constitutionally overbroad for permitting the search for seizure of all firearms and all evidence of gang membership, as well. According to the Millenders, these errors are sufficiently obvious that no reasonable officer could have been unaware of them. As a result, they say, qualified immunity should not apply and the officers should be held personally liable.

The Ninth Circuit ruled en banc that the officers could be held personally liable because the warrant violated the Fourth Amendment and qualified immunity didn’t apply. Specifically, the Ninth Circuit held that (1) the warrant was invalid because the probable cause did not extend to all of the items described in the warrant and (2) the officers were not entitled to qualified immunity, because no reasonable officer could have believed that there was probable cause to search for and seize all of the items described in the warrant. The warrant was invalid because there was no probable cause to seize the broad categories listed in the warrant. While there was probable cause to seize Bowen’s sawed-off shotgun, that probable cause did not extend to all firearms. And there was no probable cause to seize gang-related material because Bowen’s threat against Kelly was not gang-related.

The Ninth Circuit’s reasoning for why qualified immunity did not attach was that the error in the warrant was “glaring,” and therefore that any reasonable officer should have spotted it:

[T]he warrant in this case suffered a “glaring deficiency.” Groh, 540 U.S. at 564. Neither it nor the affidavit established probable cause that the broad categories of firearms, firearm-related material, and gang-related material described in the warrant were contraband or evidence of a crime. Moreover, a reasonable officer in the deputies’ position would have been well aware of this deficiency. The affidavit indicated exactly what item was evidence of a crime, the black sawed-off shot- gun with a pistol grip, and reasonable officers would know they could not undertake a general, exploratory search for unrelated items unless they had additional probable cause for those items.

The officers then petitioned for certiorari. Notably, the officers did not ask the Court to evaluate whether the warrant was valid. Instead, they asked the Justices to assess whether qualified immunity should apply, and they then added a second question presented: Should the standard for qualified immunity “be reconsidered or clarified in light of lower courts’ inability to apply them in accordance with their purpose of deterring police misconduct, resulting in imposition of liability on officers for good faith conduct and improper exclusion of evidence in criminal cases?”

The Court re-listed the case a few times, suggesting a possible dissent from denial of certiorari or a summary reversal. Instead, the Court granted the petition and scheduled the case for oral argument.

III. How I Think the Court Should Rule

I think the Supreme Court should reverse the Ninth Circuit because the Ninth Circuit misapplied the well-established qualified immunity standard. The error in the warrant was hardly glaring: It was actually a rather subtle error. So I think the Court should reverse and hold that qualified immunity should attach. At the same time, I don’t think the Court should depart from the well-established qualified immunity standard in this case.

Continue reading ‘Thoughts on Messerschmidt v. Millender, A Pending Case on Search Warrants and Qualified Immunity’ »

I was at the Supreme Court this morning for the oral argument in United States v. Jones, the GPS case. In this post, I want to blog my reactions to the argument: I’m going to update the post as I go, so general readers can get the important stuff first at the top and then general readers can get the rest down the page.

1) My basic reaction was that the outcome was too close to call. The Justices gave both sides a very hard time, and few Justices tipped their hand. The Justices pushed Michael Dreeben (arguing for the United States) on the consequences of his argument: If the Government was right, they noted, then the government can install a GPS device on all the Justices’ cars and watch them, too, along with everybody else. They pushed Steve Leckar (arguing for Jones) on the difficulty of identifing a clear Fourth Amendment principle to distinguish visual surveillance from GPS surveillance. The votes were hard to count, but if you had to summarize a reaction of the Court as a whole, I would say that the Justices were looking to find a principle to regulate GPS surveillance but unconvinced (at least as of the argument) that there was a legal way to get there without opening up a Pandora’s Box of unsettling lots of long settled practices.

2) The Justice who most clearly showed his cards was Justice Scalia. Justice Scalia made clear that he would overrule Katz v. United States; make common law of trespass the test for what is a search; and say that the installation of the device was a search because it was a technical trespass. Even if Katz can’t be overturned, Scalia indicated, at the very least the common law of trespass should be a floor of Fourth Amendment protection: Katz should be allowed to go beyond the original Fourth Amendment but not erode it. Cf. Kyllo v. United States. At the same time, Justice Scalia made equally clear that he thought the use of the device after installation was not a Fourth Amendment problem. What is invasive and scary isn’t a search, Scalia emphasized, and the kind of line-drawing as to when use of a GPS device should be allowed is quintessentially a legislative question. So Scalia is on board for saying that installation of the device is a search, but no more. (As an aside, it’s not at all clear that the original public meaning of the Fourth Amendment operated on a common law of trespass principle. Warren Court opinions liked to describe pre-Warren Court decisions as adopting such a principle, and that has led many to believe that the Fourth Amendment underwent a transition in the 1960s from protecting property to protecting privacy. But if you go back and read the cases, that narrative — pushed most strongly by justice Brennan in Warden v. Hayden — is plainly inaccurate. The early cases usually rejected common law trespass as a principle, much as post-Katz cases do. More on that in a future post.)

3) Other justices gave a more mixed reaction to Justice Scalia’s idea of regulating the installation of the device as a search under the technical trespass doctrine. Justices Alito and Kagan seemed particularly skeptical. Both pointed out that this solution wouldn’t necessarily work in the long run: If technology advanced and the government created a new surveillance tool that could obtain the same information without a technical trespass, then the government would have the same power as before. Alito and Kagan also both pressed Leckar on whether it would be a search or seizure to attach an inert device to a suspect’s car (that is, a device with no monitoring system). Leckar conceded that this would be a different case, which drew a comment from Justice Kagan that Leckar was really focused on the use of the GPS device, not the installation.

4) Justice Breyer’s reaction was about as far from Scalia’s as you could get. Justice Breyer didn’t buy the technical trespass doctrine, and he wanted to bypass the question of what is a “search” or “seizure” and just ask what is “reasonable.” Breyer seemed to think that the earlier decisions like Karo and Knotts had been about that, as well, which was mistaken: Those cases were primarily about what is a “search,” not when a search is reasonable. (It’s true that the test for what is a search is whether the government conduct violated a “reasonable expectation of privacy,” but that’s a term of art used interchangeably with the phrase “legitimate expectation of privacy” — the word “reasonable” in that term of art is very different from the general balancing test of reasonableness that applies once a search or seizure has been identified.) Anyway, Breyer was therefore looking for some sort of way to say when GPS monitoring was reasonable and desirable, rather than what was a constitutional search or seizure. I don’t think he really found an answer that satisfied him on either side.

5) Justice Sotomayor and Ginsburg were both very worried about the Big Brother implication of using GPS devices: I counted 5 or so references to Orwell’s 1984. At the same time, both were struggling to identify exactly what the constitutional rule was that would regulate GPS monitoring. Merely watching a suspect in a city street was obviously not a search or seizure. Does that change if you switch to video cameras? Lots of cameras? Beepers? GPS devices? Where do you draw the line? Counsel for Jones suggested that the Court could say that this case was a search or seizure but leave open the other cases, but the Justices wanted clearer answers than that. And there was some frustration at the inability to draw constitutional lines from the defendant’s side: At one point Justice Sotomayor responded to one of the defense’s proposed lines by proclaiming, “What an unworkable rule tethered to no principle!”

6) The “mosaic theory” adopted by the D.C. Circuit didn’t seem to go anywhere with the Justices. I think the only Justice who mentioned it during Dreeben’s argument was Chief Justice Roberts. Roberts’ question was straight out of the defense-side briefs, arguing that GPS surveillance over a long period allowed the government to assemble a mosaic, and was much cheaper and easier for the government than the beeper surveillance in Knotts. At the same time, I couldn’t tell if Roberts was asking those questions just to see Dreeben’s response or because he genuinely was sympathetic to the defense side. The mosaic theory came up a bit during Leckar’s argument, but the Justices were mostly very skeptical: As Justice Scalia proclaimed, echoing Judge Sentelle below in his dissent from denial of rehearing en banc, “100 times zero is still zero.” Leckar took the hint and didn’t press the mosaic theory much during his argument.

7) One of the major questionsin the case is how the Justices view the prospect of future statutory regulation. It was clear that a lot of the Justices were deeply worried about the 1984 scenario, and were looking to find a sensible way to regulate GPS surveillance with a constitutional rule if it’s necessary to avoid 1984. Arguing for the government, one of Dreeben’s responses was that these were just the kind of problems that Congress could deal with: If everyone is spooked by the possibility of GPS surveillance, then that is all the more reason for the elected branches to act. It was hard to know exactly what the Justices thought of this: They know they can’t control if Congress acts. If they decide that the Fourth Amendment doesn’t apply because they expect statutory regulation to deal with this, what happens if they are wrong? I tend to think that it’s very likely that Congress would act pretty swiftly to regulate GPS surveillance for the reasons explained in this article, but it’s an question of guessing what the future might look like and I suspect different Justices will look at it differently.

Three weeks ago, I blogged about a Maryland case holding that a defendant had no reasonable expectation of privacy in his DNA left in a chair at the station house. Here’s a related decision: A new California case holding that a defendant “abandoned” his DNA, relinquishing his Fourth Amendment rights, left on a mouthpiece of a blood alcohol test. (Hat tip: FourthAmendment.com)

The case is People v. Thomas, and it involves a burglary suspect. A DNA sample of the burglar was found at the scene of the crime. Although the opinion downplays this, it seems the police were trailing the suspect and waiting for a moment to collect a DNA sample from him to find a match. They got the chance when the police had reason to think the suspect was driving drunk: The officer pulled over the suspect and he consented to a breath test. The officer was really interested in the DNA sample, not the alcohol test, however, so he kept the mouthpiece of the test for DNA testing instead of discarding it. A DNA test of the mouthpiece revealed a match. The California court held that the testing did not violate the Fourth Amendment:

[D]efendant in this case had no privacy right in the mouthpiece of the PAS device, which was provided by the police, and he abandoned any expectation of privacy in the saliva he deposited on this device when he failed to wipe it off. Whether defendant subjectively expected that the genetic material contained in his saliva would become known to the police is irrelevant since he deposited it on a police device and thus made it accessible to the police. The officer who administered the PAS test testified that used mouthpieces are normally discarded in the trash. Thus, any subjective expectation defendant may have had that his right to privacy would be preserved was unreasonable. (Cf. Greenwood, supra, 486 U.S. at p. 40 [no reasonable expectation of privacy in garbage made accessible to the public, including the police].)

Alternatively, defendant argues that, because he was not advised his saliva would be tested for DNA, he did not intend to relinquish any privacy interest in it when he consented to the PAS test. The trial court found that defendant voluntarily consented to the PAS test, but did not consent to DNA testing of the mouthpiece. Defendant does not challenge these findings. Rather, he seeks to impose on the doctrine of abandonment the requirement of knowing consent, contending that he could not validly waive the privacy right in his saliva without being advised that it would be genetically tested and attempting to circumscribe the doctrine of abandonment by the scope of his consent.

To this end, defendant analogizes his case to Ferguson v. City of Charleston (2001) 532 U.S. 67, 70-71 (Ferguson), where urine samples obtained from pregnant women in a state hospital were tested for drugs, and positive test results were turned over to the police. The respondents in Ferguson conceded that the tests were searches, and argued only that they were justified by consent or special needs. (Id. at p. 76 & fn. 9.) The majority in Ferguson assumed without deciding that the tests were done without the patients’ informed consent and concluded that the special needs exception to warrantless searches did not apply because of the involvement of law enforcement. (Id. at pp. 77 & fn. 11, 80-81.). Defendant argues that an attempt to apply an abandonment rationale under the facts of Ferguson “would have been laughed out of court.” Because the abandonment doctrine was not at issue in Ferguson, defendant’s argument runs counter to the axiom that a case cannot stand for a proposition not presented or decided in it. (See People v. Annin (2004) 117 Cal.App.4th 591, 606.)

Ferguson did not involve the situation presented here, where the defendant consented to give a breath sample and in the process deposited saliva on a police device. In cases where a driver consents to give a blood sample under a state’s implied consent law and the sample is afterwards genetically tested, some courts have concluded that the scope of the driver’s consent does not permit genetic testing, either because the driver expressly limited his consent or because the express statutory purpose for testing the blood sample is to ascertain the presence of alcohol or drugs in the blood. (See e.g. State v. Binner (1994) 131 Ore.App. 677, 682-683 [886 P.2d 1056, 1059] (Binner); State v. Gerace (1993) 210 Ga.App. 874, 875-876 [437 S.E.2d 862, 863] (Gerace) The Binner court went further to hold that the defendant’s limited consent indicated he did not intend to abandon his privacy rights in the blood sample. (Binner, at p. 682.) Unlike the blood samples in Binner and Gerace, the PAS breath sample in this case was used only to measure any blood alcohol in defendant’s body, a use consistent with the implied consent statute. (See Veh. Code, § 23612, subds. (h) & (i).) The saliva defendant deposited on the PAS device, in which defendant could claim no right to privacy, was a mere incident to the PAS test. It was not the material collected for the limited purpose of the implied consent statute, and its subsequent testing was not dependent on defendant’s express or implied consent.

Thoughts?

This is my second post on United States v. Jones, the case on GPS and the Fourth Amendment. In this post, I want to explore whether the act of installing the device should count a Fourth Amendment search or seizure. My bottom-line is that I find this a surprisingly difficult and open question: Justices wishing to apply the Fourth Amendment in a way that is consistent with Fourth Amendment text, history, principles, and precedents could plausibly go either way. One implication of this uncertainty is that if the Justices decide to regulate GPS under the Fourth Amendment, focusing on the installation of the device is a much better option than trying to jump into the thicket of issues discussed in my first post about use of the device once installed. At the same time, it’s worth noting two additional wrinkles. The first is the uncertain standard of reasonableness that would follow from a conclusion that installing the device is a search or seizure. The second is the important role of statutory regulation, which may deal with some of the concerns raised by those who want the Supreme Court to construe the Fourth Amendment to sharply limit GPS monitoring.

I. General Principles on Searches and Seizures

Let’s start with first principles, which I will take in large part from this recent article. The general purpose of the Fourth Amendment is to regulate police collection and use of evidence so that police practices are reasonable. Police officers want to collect evidence to bring cases that prosecutors can charge, and they need two distinct types of power to do this successfully. First, they need the power to uncover and expose evidence so they can see it and recognize its importance to criminal cases. Second, they need the power to “freeze” evidence to maintain custody of it, preserve the status quo pending further investigation, and bring the evidence into court for prosecution. The first power is the power to expose what is hidden, and thereby learn facts that were previously unknown. The second power is the power to secure the scene and add to the potential evidence under the government’s control so eventually it can be used in court.

The Supreme Court has interpreted the government’s search power and seizure power accordingly. Under the Court’s cases, a Fourth Amendment search occurs when the government violates a reasonable expectation of privacy, which in turn occurs when the government observes evidence in a private space. The government’s act of exposing the information from the private space so it is in the government’s view is the search. In contrast, a Fourth Amendment seizure occurs when government conduct meaningfully interferes with an individual’s possessory interest in property. The government’s act of taking control of the property is the seizure.

In the Jones case, federal agents approached the defendant’s car when it was in a public parking lot and affixed a GPS device to the undercarriage of the car. We can break that down into two steps: First, the act of approaching the car and then going underneath it to attach the device to the undercarriage; and Second, the act of actually affixing the device to the car. The question raised by the first step is whether going underneath the car was a search: Put another way, did Jones have a reasonable expectation of privacy in the undercarriage of his car? The question raised by the second step is whether affixing the device was a seizure: That is, did attaching the device meaningfully interfere with the defendant’s possessory interest?

At the outset, it’s important to understand how the Court dealt with a similar issue in United States v. Karo. In Karo, a drug dealer ordered cans of ether from an undercover informant. Federal agents wanted to track the ether so see where the drugs were being prepared for sale, so they purchased a can, put a radio beeper inside, and then painted it to look like a can of ether. With the consent of the informant, the agents placed the can with the beeper amongst the other cans, which the informant then provided to the defendant. Use of the beeper then revealed the location of the cans. In its opinion below, the Court of Appeals had held that the can’s coming into the defendant’s possession violated the Fourth Amendment because “[a]ll individuals have a legitimate expectation of privacy that objects coming into their rightful ownership do not have electronic devices attached to them, devices that would give law enforcement agents the opportunity to monitor the location of the objects at all times and in every place that the objects are taken.” But the Supreme Court disagreed. Transferring the can to Karo’s possession was not a search, the Court held, because it did not reveal any information. It was also not a seizure, because “[a]lthough the can may have contained an unknown and unwanted foreign object, it cannot be said that anyone’s possessory interest was interfered with in a meaningful way.”

The facts of the GPS installation in Jones are somewhat different from the facts of the radio beeper installation in Karo. While Karo knowingly received a package of ether that turned out to include a beeper, the FBI approached Jones’s car, went underneath it, and affixed the GPS device to the undercarriage. In the rest of the post, we’ll see if that should make a difference.

II. Is Going Underneath the Car to Install a GPS Device a Fourth Amendment Search?

Let’s now consider whether Jones had a reasonable expectation of privacy in the undercarriage of his car, such that accessing that part of the car was a Fourth Amendment search. To understand this question, it helps to go back to the inside/outside distinction I explained in my prior post. As I discussed there, most of the Supreme Court’s “search” jurisprudence can be explained by the basic idea that the Fourth Amendment protects inside spaces of persons, houses, papers, and effects, while it does not protect that which is exposed to the general public or is out in the open for all to observe. From this perspective, whether installing the device on the car counts as a search boils down to whether going underneath a car to come close up to its undercarriage is entering an inside space or is merely being in an outside space.

I find this a tricky question. Either view seems plausible. On one hand, you could say that the undercarriage of a car is part of the exterior of the car. The undercarriage isn’t an inside part of the car, like the passenger compartment or the trunk, that often stores private things. Rather, it is an exterior part of the car that is exposed to the public. See New York v. Class (“The exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a ‘search.’”) To be sure, it isn’t all that common for members of the public to go underneath cars parked on a public street. But it happens on occasion, such as when a a person drops something that rolls under the car, a person is looking for something lost earlier, or a kid loses a ball that rolls under the car. And more broadly, when you park on a public street or parking lot, you don’t get some kind of temporary ownership of the physical space underneath the car. The space is still public space. When you agree to put your car in public space, you assume the risk that others will access the space underneath your car. See California v. Greenwood (no reasonable expectation of privacy in trash left at the curb);

That’s one approach. But I think you could equally argue the opposite position. You could say that a person’s car is one of their constitutionally protected “effects,” and clearly entry into the private parts of a car violate a reasonable expectation of privacy, see Delaware v. Prouse. The space underneath a car should be deemed a protected space because social norms recognize an exclusive right to that space. Imagine you parked your car in a parking lot, and you later came back and found someone underneath your car just hanging out. You would probably feel that your space was invaded, and that the person better get out from under your car immediately. From this perspective, the underneath of the car is a private space, not a public one: Although it does not reveal much private information, it does reveal at least some, and that’s been thought to be enough in other contexts. See Arizona v. Hicks (“A search is a search, even if it happens to disclose nothing but the bottom of a turntable.”).

II. Cardwell v. Lewis and New York v. Class

If you really want to get into the weeds on the question of whether accessing the undercarriage of the car is a search — and the Internet isn’t running out of electrons, so why not — you can see the uncertainty of the question by noting that the Court has had a very hard time applying the Fourth Amendment to similar types of government efforts to access parts of cars. (If you’re in a hurry, feel free to skip to Part III. ) There are two particularly relevant opinions, and both offer uncertain guidance. The first is Cardwell v. Lewis and the second is New York v. Class

In Cardwell v. Lewis, the police suspected that Lewis was the driver of a car that had rammed another car off the road. The police arrested Lewis and impounded his car. Officers then went to the police impoundment lot to try to match Lewis’s car to the crime scene. The police visually observed the tire tread on Lewis’s car and noted that it matched the tire tracks at the crime scene. They also scraped some paint off Lewis’s car and noted that it matched the color paint found on the victim’s car at the point of contact. The plurality opinion by Justice Blackmun (joined by Burger, White, and Rehnquist) concluded that this was constitutional, but the opinion itself is maddeningly vague on whether the Court thought a search had occurred. Part II of the opinion starts by seeming to indicate that there was no search, as the conduct only involved the exterior of the vehicle. But then the rest of the analysis seems to say it was a search — albeit one that was constitutionally reasonable because the police had probable cause. It’s just hard to tell which doctrinal box Blackmun had in mind. And given that it is only a plurality opinion for four Justices — no other Justices reached the issue — it’s hard to know what to make of the case.

New York v. Class is equally cryptic. An officer pulled over a car and wanted to see the Vehicle Identification Number (VIN) on the car. In more modern cars, the VIN is located at the front part of the dashboard, normally in plain view through the windshield. But Mr. Class, the driver of the car, had placed some papers over the dashboard. So the officer reached in the car and pulled away the papers to see the VIN. The Court’s opinion by Justice O’Connor concluded that this was constitutional, but the exact reason why is rather uncertain. O’Connor’s analysis begins by arguing that there is no reasonable expectation of privacy in a VIN, given how regulated cars are and given that the VIN is usually visible. But this makes little sense: Fourth Amendment doctrine is generally concerned with how the police got to the information, not whether the information has some transcendental value as protected or unprotected. The opinion then concludes that entering the car to remove the papers and see the VIN was a search but a reasonable one, given a balancing of all the factors: The fact that there was no expectation of privacy in the VIN, the fact that the officer only looked where the VIN could be, and the fact that the officer had seen two traffic violations. The Court also adds that although entering the car to remove the papers was a search, neither ” the doorjamb or atop the dashboard [of a car] . . . is subject to a reasonable expectation of privacy.” The end-result is a head-scratcher, I think. It’s hard to know exactly what counts as a search and what the framework is for reasonableness.

In my view, the chief lesson of Cardwell and Class is that the Court struggles to apply the inside/outside distinction in the automobile setting. Cops watching a car from afar is clearly outside; the act of physically entering the passenger compartment is clearly inside. But going underneath the undercarriage when the car is on a public parking lot is somewhere between the two, and there are relatively sparse source of authority on where the line should be drawn.

III. The Implications of a Possible Ruling that Installing the Device on the Undercarriage is a Search

So let’s imagine the Supreme Court agrees with defendant that going underneath the car to install the GPS is a “search,” but then agrees with the government that use of the GPS is not a search. What would the law of GPS surveillance look like? It seems to me that the law would regulate installing devices that are hidden — that is, on the bottom of the car — but would not regulate the Karo situation of a suspect who receives a package containing the GPS. Similarly, the rule would not regulate turning on a GPS device that was built-in to the car (as that seems clearly covered by Karo). Further, the Court would then need to reach the interesting and potentially difficult issue of what would make such a search “reasonable.” As we saw in Cardwell and Class, the “search” inquiry is only half the battle: The Court would then have to say when the search of an undercarriage is reasonable, which may not require a warrant. But at the very least the Fourth Amendment would regulate the act of attaching a secret GPS device to a suspect’s car.

Different readers will have different views on whether this avenue is a desirable one for the Court to take. In my view, though, it’s the easiest and most coherent way for the Court to regulate GPS surveillance under the Fourth Amendment beyond the Knotts/Karo line discussed in my previous post. Recall my concerns from my previous post about rejecting the inside/outside distinction. Inside/outside is in many ways the bedrock of the Supreme Court’s “search” jurisprudence. If you reject that, then you need to find an alternative (which proves extremely difficult). But regulating GPS surveillance by focusing on the installation of the device is much easier. It sticks with the inside/outside distinction and simply treats the entry to install the device as an entry “inside” and therefore a search. That approach doesn’t trigger any of the conceptual puzzles that would arise if the Court were to try to regulate GPS usage (as opposed to installation) beyond the Knotts/Karo line.

Continue reading ‘My View of the Second Question Presented in United States v. Jones, the Fourth Amendment GPS Case’ »

Imagine a group of narcotics investigators decide to turn to a life of crime. They set up drug buys just as they normally would. They make their arrests based on probable cause, they search the dealers incident to arrest, and they recover the drugs. But then, instead of bringing the dealers in for charges, the officers release the dealers, sending them on their way. The officers then sell the seized drugs for a profit that they divide amongst themselves. In effect, the officers pretend to enforce the law but really just use their badges to help them steal drugs from criminals.

Next ask yourself what crimes the officers have committed. The most obvious crime is possessing and trafficking in narcotics. Although the courts have read an implied exception into the narcotics laws for police possession of narcotics in the ordinary course of their official duties, that exception would not apply if the officers are merely seeking to become illegal dealers themselves. But now consider this question: Did the officers also violate 18 U.S.C. 242, which prohibits willfully violating the constitutional rights of others, on the ground that the stop, arrest, and search of the dealers violated the dealers’ Fourth Amendment rights because officers were not engaging in a bona fide investigation?

In a decision handed down Friday, United States v. Sease, the Sixth Circuit ruled that the answer is “yes.” In an opinion by Judge Cole, joined by Judges Rogers and Griffin, the court held that that “where there is clear evidence that the officers were not engaged in bona fide law enforcement activities, but instead acted with a corrupt, personal, and pecuniary interest, the officers violate the civil rights of those that are stopped, searched, or have their property seized.”

I think Sease is unpersuasive, and that its analysis reflects a misunderstanding of the Fourth Amendment and possibly also the criminal statute prohibiting willful constitutional violations, 18 U.S.C. 242.   In this post, I’d like to explain why. I’ll begin with some background, both on the Fourth Amendment and Section 242.

I. Background on 18 U.S.C. 242 and the Fourth Amendment

18 U.S.C. 242 is a federal criminal statute that punishes willful violations of constitutional rights. It states in relevant part:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both . . . .

Prosecutions under Section 242 are often difficult because the Government must satisfy two significant hurdles. First, to satisfy Due Process, the government must show that the government’s conduct violated a clearly established right — the same standard needed to overcome qualified immunity in civil suits against officers. See United States v. Lanier, 520 U.S. 259 (1997). Second, the Government must show that the violation was willful. The willfulness standard in Section 242 “requires the government to show that [the defendant] had the specific intent to deprive [the victim] of a right under the Constitution.” United States v. Epley, 52 F.3d 571, 576 (6th Cir. 1995). As the Supreme Court explained in interpreting the predecessor statute to Sec. 242, “the specific intent required by the Act is an intent to deprive a person of a right which has been made specific . . . by decisions interpreting” the Constitution. Screws v. United States, 325 U.S. 91, 104-05 (1945).

The relevant right in the Sease case is conferred by the Fourth Amendment, which punishes unreasonable searches and seizures. The critical point here is that the Supreme Court has emphasized that in almost all contexts, the reasonableness (and thus constitutionality) of a search or seizure is to be determined by objective criteria, not subjective intent. The most-often-cited case for this proposition is Whren v. United States, 517 U. S. 806 (1996), in which an officer pulled over a car based on probable cause to believe a traffic law had been violated. Whren argued that the search was unconstitutional because the officer wasn’t acting reaosonably, even thought he had probable cause. The ubiquity of traffic laws and the temptation to use traffic violations as a pretext required more than just probable cause when the traffic violation was likely a mere pretext for the stop really made for other reasons, including for reasons of racial discrimination. The Supreme Court disagreed:

We think [our] cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved. We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis.

Under Whren, then, subjective motives don’t generally matter in Fourth Amendment law. What matters is whether the officer had the objective level of required cause, not whether he had a good-faith design to enforce the law.

II. The Sixth Circuit’s Analysis in United States v. Sease

The facts of Sease mirrored the hypothetical at the top of the post. Sease was prosecuted for drug crimes, Hobbs Act violations, and both conspiracy to and wilfully violating the dealers’ constitutional rights. Sease was convicted and received a whopper of a sentence: Life plus 255 years in prison. In his challenge to the Sixth Circuit, Sease has challenged the sufficiency of the evidence. He has argued that under Whren, he did not violate the dealers’ constitutional rights because he did in fact have probable cause to stop and arrest the dealers. Because Sease did not violate the dealers’ Fourth Amendment rights, he did not violate Section 242. The Sixth Circuit disagreed, reasoning that the Whren line of cases is not applicable for two reasons. First, Sease’s conduct was “thoroughly and objectively illegal from start to finish”:

Whren . . . presumes that the officers are engaging in bona fide law enforcement activities when they make the stops. However improper it may be to use a traffic violation as a pretext to look for drugs, there is no question that making traffic stops and looking for drugs are valid and appropriate law enforcement activities. It is only arguably improper if the officers lacked the required probable cause or reasonable suspicion under the specific facts of the situation. By contrast, it is inherently improper for officers to set up drug deals for the purpose of taking the money and drugs for themselves, regardless of the context. Sease’s actions are improper in an entirely different way and to an entirely different degree than the actions of the officers in Whren.

Unlike the officers in Whren, Sease and his co-conspirators were not engaging in bona fide law enforcement activities. Instead, they were using the appearance of law enforcement activities as an element of their conspiracy. A key component of Sease’s plan was to keep his activities from the attention of his superiors by not filing reports of his stops, acting outside of his assigned precinct, and failing to inform his superiors of the quantities of drugs and money seized. When the Memphis Police Department did find out about at least one of Sease’s arranged stops, via a complaint from victim Reggie Brown, they investigated the complaint and swiftly removed Sease from the police force. Unlike the actions of officers in cases such as Whren, Sease’s conduct was thoroughly and objectively illegal from start to finish.

The court next concluded that Whren was also distinguishable because Whren was really about the remedy of the exclusionary rule:

Allowing conviction where there is no “bona fide law enforcement purpose” does not implicate [Whren] because the purposes underlying the exclusionary rule and § 242 are different. The holding in Whren represents a careful balance in which the exclusionary rule’s goal of prospectively deterring police misconduct is outweighed by law enforcement purposes where there is objective evidence of probable cause. “[S]imply, the Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever the subjective intent.” Whren, 517 U.S. at 814. However, this balance shifts in the context of a § 242 prosecution. Section 242 is a punitive statute designed to punish officers who willfully violate constitutional rights under color of law. The punitive purpose would be undermined were the court to allow a corrupt officer to hide behind the policy goals of the exclusionary rule. Accordingly, although for the purposes of the exclusionary rule the subjective intent of the officer is irrelevant, in the context of a § 242 prosecution, the courts may inquire whethertheofficeractedwithacorrupt,personal,and pecuniary purpose. In addition, unlike in the exclusionary rule context, the court must already inquire into the subjective intent of the officer because willfulness is an element of an offense under 18 U.S.C. § 242. Accordingly, there is no additional evidentiary burden to justify ignoring subjective intent.

Because Sease involved a Section 242 prosecution and Sease had no bona fide law enforcement purpose, his stops and searches violated the dealers’ Fourth Amendment rights and Sease could be punished for it.

III. My View of the Reasoning in Sease

I find Judge Cole’s analysis unpersuasive. First, Judge Cole’s creative effort to distinguish Whren has no basis in the Whren opinion. Whren was not a case about “bona fide law enforcement purposes” or the exclusionary rule. Whren conceded that the officer had probable cause: His objection was that the officer was a racist cop who pulled him over because Whren was black. Intentional racial discrimination is not a bona fide law enforcement purpose. And I don’t see any hint in the opinion of it having anything to do with the exclusionary rule.

Even if you wanted to try to read Whren in this rather creative way, I would think that reading is foreclosed by the Supreme Court’s May 31, 2011 decision in Ashcroft v. Al-Kidd.

Continue reading ‘“Inherently Improper” Searches and Seizures: The Sixth Circuit’s Puzzling New Decision in United States v. Sease’ »

On November 8th, the Supreme Court will hear oral argument in United States v. Jones, the case on whether installation and/or use of a GPS device on a suspect’s car to record the public places the car travels is a Fourth Amendment search or seizure. I wanted to offer my thoughts on the case.

At the outset, here’s my bottom line: I’m not sure which side should win. On one hand, I don’t think use of the device should be deemed a search or seizure. On the other hand, I am genuinely divided on whether I think the installation should be deemed a search or seizure. Given these two positions, I don’t have an answer to whether the combined installation and use should be permitted without Fourth Amendment oversight (although I have a lot of views on better or worse ways to get to either result). Regardless of how the Court rules, however, I think a new privacy statute is needed to address both government and private sector use of GPS surveillance.

I’m going to make that case over three posts. In this post, I’m going to address the first Question Presented (QP) in Jones: Whether the use of the device to obtain location information should be deemed a search or seizure. (My answer: No.) In the next post, I’m going to address the second QP, whether installation of the device is a search or seizure. (My answer: I’m divided.) And in the third post, I’m going to address the need for and likelihood of statutory regulation of GPS, especially if the Court rules for the government in the Jones litigation.

So that’s the game plan. On to the first post, on whether use of the device is a search.

I. The Inside/Outside Distinction

Let’s start with first principles. The text of the Fourth Amendment states that the Amendment protects security in “persons, houses, papers, and effects,” and the Fourth Amendment’s prohibition on unreasonable “searches” does so by protecting invasions into those private spaces. Over the years, the Supreme Court has developed a relatively simple line for distinguishing the invasions into persons, houses, papers, and effects that the Fourth Amendment regulates as “searches” from the investigative steps that the Fourth Amendment does not regulate. That distinction is the line between what I will call inside surveillance and outside surveillance: Surveillance of outside spaces is always permitted, while surveillance of inside spaces is a regulated “search.”

Consider a few examples. Government entry into a home is a search, as is entry into a car, or a sealed package, or a letter, or a person’s pockets. These are all intrusions into persons, houses, papers, and effects. They are all searches. On the other hand, surveillance in public places that does not enter into private spaces, such as watching someone on the street, looking at their faces, examining the outside of their packages, overhearing their voice, or following someone in a store open to the public, is not a search. These are not intrusions into persons, houses papers, or effects, and they are not searches under the Fourth Amendment.

Interestingly, you get these same results regardless of version of the Supreme Court’s doctrine you apply. You get the same results whether you get these results under the “protected areas” test that preceded the 1967 Katz case, or the Katz “reasonable expectation of privacy” test that the Court has adopted since then. The results are the same: A search occurs when the government intrudes upon a private person, house, paper, or effect, but does not occur when the government merely observes something in a public space or in a space where the government is otherwise entitled to be. I will refer to this using the short-hand of inside versus outside surveillance, as I did in this article.

The fundamental distinction between inside and outside surveillance leads to some close calls, to be sure. For example, imagine the police approach a home, walk directly up to an open window, press their faces up to the window, and peer in to see what is in the room inside. Technically, that is surveillance from an open space, but functionally it is surveillance of the inside of the home. Is that protected inside surveillance, or unprotected outside surveillance? The Supreme Court has created the distinction between “curtilage” and “open fields” to answer that: The outside area immediately around the home that can be used to peer inside the home is treated as inside surveillance (curtilage) rather than outside surveillance (open fields). See United States v. Dunn. Similarly, imagine the police use a thermal imaging device to determine the exterior temperature of a wall on the home. Is that outside surveillance, as it is only of the outside of the wall exposed to the public, or is that inside surveillance, as it reveals information about the inside of home? It’s a tricky call, as the 5-4 decision in Kyllo v. United States reveals. But the basic point remains: The distinction between inside and outside surveillance is the basic building block of the Supreme Court’s “search” cases.

II. The Knotts and Karo Precedents from the Radio Beeper Era

How does this distinction apply to the use of government surveillance devices installed to determine the location of property used or controlled by a criminal suspect? The Supreme Court first grappled with this in two cases in the 1980s, United States v. Knotts and United States v. Karo. Both cases involved radio beepers provided by the government that the suspects did not realize were present and broadcasting their location. The technology was crude compared to today’s GPS technology, but it did the job: It enabled the government to know the location of the beepers, and thus, implicitly, the location of the suspects that the police wanted to follow.

Knotts and Karo reasoned that the way to translate the traditional Fourth Amendment protection to the era of high-tech radio beepers was to focus on the information that the surveillance devices revealed. Recall that the traditional Fourth Amendment rule was that the police could always watch a suspect in public (no search), but that they could not enter protected spaces without a warrant or some Fourth Amendment oversight (a search). Knotts and Karo together drew the same line for government-installed location devices: If the device is used to monitor a location in public, then no search occurred (Knotts), but if the device was used to monitor a location inside a protected space, like a home, then a search occurred (Karo).

To my mind, there is a lot of wisdom in the Knotts/Karo line. As I argue in a forthcoming article, it is a constant challenge for courts to adjust Fourth Amendment rules to maintain the level of constitutional protection as technology changes. I think Karo and Knotts did that quite well: They maintained the basic distinction between inside and outside surveillance by focusing on whether the information obtained was information about what was happening outside (the location of property out in public) or what was happening inside (the location of property inside a home). The facts changed, but the Knotts/Karo line maintained the same equilibrium of police power and privacy rights across that shift from one technology (visual surveillance) to another (radio beepers).

III. Does GPS Surveillance Justify A Departure from the Knotts/Karo Line?

That brings us to Jones. In Jones, a GPS device was placed on the suspect’s car. The trial court concluded that the evidence of the GPS device in the suspect’s garage had to be suppressed under Karo, but that the evidence of the GPS device in public was permitted under Knotts. Only the latter evidence, the evidence of the location of the car on the public street, is at issue in the Jones case. The basic argument of the defendant-respondent in Jones is that GPS surveillance is different from radio beeper surveillance, and that those differences justify a departure from the Knotts/Karo information-based approach. The gist of the argument is that GPS monitoring is just too invasive to be allowed without judicial oversight — the monitoring is too constant, too easily done, too continuous, and too detailed.

As I understand this argument, the basic move is to replace the inside/outside distinction with a different approach, one based on more amorphous standard of what is very invasive. According to the respondent in Jones, the Fourth Amendment should not track inside versus outside: Rather, it should measure an overall amount of invasiveness. Under that approach, a person can have a reasonable expectation of privacy in open public spaces just as they can in private spaces. What matters is whether the manner in which the public or private surveillance is conducted is too invasive and creepy to go without Fourth Amendment protection, not whether the monitoring happens to be of public and open or private and enclosed spaces.

I think this is a unpersuasive argument, and that the Justices should reject it for three reasons.
Continue reading ‘My View of the First Question Presented in United States v. Jones, the Fourth Amendment GPS Case’ »

The Ninth Circuit handed down a divided en banc decision today in the consolidated cases of Brooks v. Seattle and Mattos v. Agarano, which consider the Fourth Amendment limitations on the use of tasers. The Ninth Circuit judges divided 6-4 on whether the use of force was excessive and therefore violated the Fourth Amendment. For a bunch of reasons, the case strikes me as a plausible candidate for Supreme Court review.

Excessive force cases are always fact-specific, but here are the basic facts of the two cases. In the first case, Brooks, the plaintiff was arrested for refusing to sign her speeding ticket. She then refused to get out of the car upon her arrest. The officer told her he would have to tase her if she didn’t get out of the car, but she still refused, and he tased her on a low setting. She still refused to get out of the car, and the officer then tased her on a higher setting. In the second case, Mattos, the police responded to a 911 call about a domestic dispute between a husband and wife. After a brief investigation, the police announced that they were placing the husband under arrest. The wife was physically between the arresting officer and her husband at that time, and she did not move; as the officer approached, she put up her hands to block the officer and apparently said something about the need for them to defuse the situation. The officer responded by tasing the wife.

The majority opinion by Judge Paez concludes that the use of tasers to subdue individuals on those two cases was excessive, but that qualified immunity applies. Judge Kozinski wrote a partial dissent and would have held that the tasering was not excessive force. Kozinski presents tasers as a safer alternative than direct physical force, and concludes:

The majority and concurrence get the law wrong, with dire consequences for police officers and those against whom they’re required to use force. My colleagues cast doubt on an effective alternative to more dangerous police techniques, and the resulting uncertainty will lead to more, worse injuries. This mistake will be paid for in the blood and lives of police and members of the public.
Today’s decision, though nominally a victory for the officers, is a step backward in terms of police and public safety. One can only hope the Supreme Court will take a more enlightened view.

Note that under Camreta v. Greene, the officers could still obtain Supreme Court review of the merits of the Fourth Amendment issue even though they won on immunity grounds in the Ninth Circuit. Thanks to How Appealing for the link.

I attended the oral argument this morning in Florence v. Board of Chosen Freeholders of the County of Burlington, a case on whether the Fourth Amendment permits a jail to conduct a suspicionless strip search whenever an individual is arrested, including for minor offenses. To my mind, the case is really a follow-up to Atwater v. City of Lago Vista, 532 U.S. 318 (2001), in which the Court considered whether the Fourth Amendment allows arrests even for very minor offenses. In Atwater, the Court concluded that the Fourth Amendment does allow arrests even for very minor offenses — in that case, a seatbelt violation that led to a small fine. Florence requires the Court to confront a downstream implication of Atwater: If the Fourth Amendment allows the police to make the arrest for the very minor offense, and the arrestee is then brought to the jail, does the Fourth Amendment also allow the kind of invasive strip search that often occurs on entry into jail to ensure that no contraband is brought inside?

The arguments in Florence largely resembled the arguments in Atwater. The question is, does it work to create a Fourth Amendment rule that specially treats the relatively rare case of arrestees for minor crimes and those that aren’t dangerous or likely to be bringing in contraband differently than the run of criminal cases? Or should the Court conclude that the Fourth Amendment leaves this relatively rare case to the discretion of the government and perhaps the political process?

In Florence, the problem for the challlengers to the government’s action is that everyone concedes that there are some circumstances in which the government needs to conduct some sort of inspection of arrestees for contraband as they enter a prison. The challengers, representing the petitioner Florence, therefore had the hard line-drawing problem: How to distinguish the different kinds of possible inspections, and how to say when different inspections are permitted?

As I understood the oral argument, the Petitioner, represented by Tom Goldstein, took the view that the government can always watch arrestees from 10 feet away or a similar distance while the arrestees are showering before entering the jail. If the government wants to inspect the arrestees more closely, however, such as at a close arms-length distance, then reasonable suspicion is required. According to Goldstein, reasonable suspicion should always exist when the arrest is for a major offense. In contrast, case-by-case reasonable suspicion should be required for arrests for minor crimes. The Respondents, represented by Carter Phillips, took the view that no line drawing was required: As long as the inspection was only visual inspection of the outside of a person’s body, then the Fourth Amendment did not apply at all upon entering a prison.

My sense of the argument was that the Justices were pretty skeptical of engaging in the kind of line-drawing that the Petitioner advocated. It was just too hard to distinguish a 10-foot inspection from a 5-foot inspection from a 2-foot inspection, or to distinguish a major crime from a minor one. So I would guess the votes will be there for a conclusion that no line-drawing as required, as the government has the discretion to do a close visual inspection of all arrestees when they enter jail.

UPDATE: The transcript has now been released, and is available here. Also, I have an expanded version this post that is up at SCOTUSblog here.

The U.S. Supreme Court denied cert last week in Diaz v. California, a Fourth Amendment case from California’s Supreme Court which held that a cell phone can be searched incident to arrest. Meanwhile, over the summer, California state legislators passed SB 914, a bill limiting searches incident to arrest in California. Just today, however, California Governor Jerry Brown vetoed the bill and released the following statement:

This measure would overturn a California Supreme Court decision that held that police officers can lawfully search the cell phones of people who they arrest. Courts are better suited to resolve the complex and case specific issues relating to constitutional search-and-seizures protections.

I think Governor Brown has it exactly backwards. It is very difficult for courts to decide Fourth Amendment cases involving developing technologies like cell phones. Changing technology is a moving target, and courts move slowly: They are at a major institutional disadvantage in striking the balance properly when technology is in flux for the reasons I developed in this article. In contrast, legislatures have a major institutional advantage over courts in this setting. They can better assess facts, more easily amend the law to reflect the latest technology, are not stuck following precedents, can adopt more creative regulatory solutions, and can act without a case or controversy. For these reasons, legislatures are much better equipped than courts to strike the balance between security and privacy when technology is in flux.

Perhaps the major disadvantage of legislatively-made search and seizure rules is that the head of the executive branch that oversees law enforcement also generally has the veto power over the legislature’s efforts. The head of the executive branch can therefore block limits on the executive’s own power, at least in some circumstances. I don’t follow California politics much, but I would guess this reality, not institutional advantages of courts and legislature, is what really led to Governor Brown’s veto.

In recent years, lower courts have struggled to figure out how the Fourth Amendment applies to the collection of DNA from a suspect to try to prove identity in a criminal case (typically in rape cases). In general, courts have held that if a suspect uses a cup and throws it away, or spits on a sidewalk, the police can recover the cup or the spit and test it without triggering the Fourth Amendment. The suspect has “abandoned” the DNA, the thinking goes, so he has no continuing Fourth Amendment right in it. On the other hand, if the police for a suspect to submit to a DNA test, such as a inner-cheek swab for saliva, the suspect has Fourth Amendment rights in the DNA. Courts have not settled on exactly what protection the Fourth Amendment applies in those cases, and in particular whether a warrant or just some cause is needed to force the cheek swab. But they agree that there is at least some Fourth Amendment protection.

In Raynor v. State, the suspect in a rape case was asked to come to the police station for an interview. At the station, he was asked to submit to a DNA sample. The suspect refused. When the suspect left, however, the police swabbed the chair in which he had been sitting and were able to collect his DNA:

At that time, appellant was wearing a short-sleeved shirt and, according to Trooper Wenger, “kept rubbing his arms up and down the armrests of the chair.” . . . After appellant left the police barracks, Sergeant Decourcey swabbed the armrests of the chair on which appellant had been sitting. The swabs were submitted to the Maryland State Police Forensic Lab, where the forensic sciences supervisor, Bruce Heidebrecht, extracted DNA from the swabs and developed a DNA profile for comparison purposes. That DNA profile was found to match the DNA profile developed from the evidence taken from the pillow case and the patio at the scene of the crime.

Held, by the Court of Special Appeals of Maryland: The collection and analysis of the DNA was not a Fourth Amendment search. From the opinion:

DNA evidence, when used for identification purposes only, is akin to fingerprint evidence. And, although fingerprint evidence is suppressible if it is obtained in the course of an unlawful detention, see Hayes v. Florida, 470 U.S. 811, 816 (1985); Davis v. Mississippi, 394 U.S. 721, 727 (1969), the fingerprinting process itself “involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search.” See United States v. Dionisio, 410 U.S. 1, 15 (1973) (quoting Davis, 394 U.S. at 727).

Thus, even if appellant could demonstrate a subjective expectation of privacy in his DNA profile, he nonetheless had no objectively reasonable expectation of privacy in it because it was used for identification purposes only. As in Williamson [an earlier Maryland case involving recovery of a cup the suspect had used and thrown away], the police were in lawful possession of the item from which the DNA was collected. In Williamson, the cup from which the DNA was collected came into police possession when the suspect discarded it in the holding cell; here, the chair in the police barracks was, from the outset, in the possession of the police. Thus, like the analysis of a latent fingerprint, which involves no physical intrusion into the body and is used for identification purposes only, the analysis in the instant case of DNA evidence, which was in the lawful possession of the police, was not a constitutionally protected search.

I don’t yet have a settled view of how the Fourth Amendment applies to the collection and analysis of DNA, but the analogy between DNA and fingerprint evidence strikes me as questionable. Fingerprint evidence is on the surface. It is often visible to the unaided eye, and anyone can pick it up. In contrast, obtaining a DNA sample requires extracting it from a sample, in ways that in some ways resemble drug testing of urine samples. Although the law isn’t totally clear on this, there is some authority for the view that the extraction may make a Fourth Amendment difference, see Skinner v. Railway Labor Executives Assn (1989) (holding that collection and drug-testing of a urine sample is a search, in part because of what the chemical analysis reveals). I think you can see the questionable fit here in the court’s suggestion that limiting the use of the DNA sample to identification purposes is important: It’s not clear to me how that could be right, given that the Fourth Amendment does not impose use restrictions.

Thanks to FourthAmendment.com for the link.

In an earlier post, I looked at the Petitioner’s arguments made in the merits brief filed in United States v. Jones, the Fourth Amendment GPS surveillance case. In this post, I wanted to break down the Respondent’s merits brief in the same way.

I. The Four Models of Fourth Amendment Protection

First, a recap. In a recent article, I argued that the “reasonable expectation of privacy” test is best understood as four different inquiries. See Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503 (2007). That is, there are four different kinds of arguments that the Supreme Court made about when the government violates a reasonable expectation of privacy and therefore is a Fourth Amendment “search.” Here are the four models I identified:

(1) the probabilistic model, by which an expectation of privacy is reasonable or not based on how common or expected the government’s conduct appears to be.
(2) the private facts model, by which an expectation of privacy is reasonable or not based on the nature of the information disclosed regardless of how it is obtained,
(3) the positive law model, by which an expectation of privacy is reasonable or not based on whether the government’s conduct violated some source of law outside the Fourth Amendment, and
(4) the policy model, by which an expectation of privacy is reasonable or not based whether it is desirable to have that outcome as a matter of policy.

Briefs and opinions tend to mix and match the models, making arguments using the model or models that support the argued-for result in that particular context.

II. The Defendant’s Merits Brief in United States v. Jones

Recall that the investigations in Jones attached a GPS tracking device to the suspect’s vehicle and tracked the vehicle’s location on public streets over time. The first question raised by the case is whether the use of the GPS device violated the suspect’s “reasonable expectation of privacy.” Much like the government’s brief, the defense’s brief provides a helpful case study of how arguments based on the four models tend to work.

Here’s how the arguments break down. The defendant’s brief starts by relying on the positive law model. The government action was a search because it infringed upon the defendant’s property rights, and because the same conduct by a private party would be a tort and (in some states) a crime. Indeed, a few states have barred warrantless GPS surveillance by statute. The fact that the government’s conduct violates the principles in those bodies of law outside the Fourth Amendment indicates that the conduct violated a reasonable expectation of privacy. See pages 16-22.

The brief then turns to the policy model. Warrantless GPS surveillance violates a reasonable expectation of privacy becayuse it is very invasive and easy to do, and letting the government conduct such surveillance without judicial oversight gives the government too much power. See pages 24-28. Next the brief turns to the private facts model, and argues that the level of detail in the information that can be obtained from a GPS device makes its use a search. See pages 28-30.

After responding to the Government’s brief, Jones’s brief then returns to the policy model to distinguish the earlier beeper cases on the ground that GPS surveillance raises much more of a dragnet concern than beepers. See pages 39-42. The brief then goes back to the private facts model to argue that the net sum of private facts gathered by GPS is very invasive. See pages 43-45.

(cross posted at SCOTUSblog)

The Fourth Amendment allows the police to pull over a driver who has committed a traffic violation, and to detain that person for a reasonable period of time to investigate the traffic violation. The officer generally can ask questions unrelated to the traffic violation so long as the questioning doesn’t extend the traffic stop for more than a de minimis period of time. If the officer asks too many unrelated questions for too long, the stop exceeds the Fourth Amendment and any evidence that is found based on the extended questioning generally will be suppressed. But courts usually defer to the police in making these sorts of judgements: Judges usually conclude that added questioning didn’t extend the length of the stop too much, and so the stop was still reasonable.

Given that usual pattern, I was surprised when I first saw the blurb over at FourthAmendment.com about the Fifth Circuit’s new decision in United States v. Macias, ruling that a traffic stop was unconstitutional because the officer asked too many questions unrelated to the stop that extended the stop for too long. But then, in reading over the court’s reasoning, I was struck by something: The traffic stop was videotaped. I’m just speculating, but I would guess that the videotape gave the defendant a major advantage in litigating the case. The videotape gave the defendant the record of the details of the stop, which could show just how the officer extended the length of the stop and all of the unrelated questions that he asked.

Consider how Judge Jolly explained the facts of the case in the excerpt below. By way of background, the officer pulled over a car for a seatbelt violation. A lot of questioning followed, and the officer ultimately searched the car and found a firearm that led to charges against Macias for being a felon in possession of a gun. The defendant, Macias, argued that the officer improperly extended the duration of the traffic stop by asking lots of questions unrelated to the seatbelt violation:

Macias contends that before Trooper Barragan ran the computer checks, he engaged in detailed questioning about matters unrelated to Macias’s driver’s license, his proof of insurance, the vehicle registration, or the purpose and itinerary of his trip that unreasonably prolonged the detention without developing reasonable suspicion of additional criminal activity. We agree.

Nearly eleven minutes passed from the time that Trooper Barragan stopped Macias until he ran the computer checks. During this time, Trooper Barragan questioned Macias and Zillioux extensively about the purpose and itinerary of their trip. Such questions, as discussed, are permissible because they were related in scope to Trooper Barragan’s investigation of the circumstances that caused the stop. Id. Trooper Barragan, however, asked numerous questions that were not directed to the itinerary or purpose of Macias’s trip to Victoria. Trooper Barragan asked Macias if he currently was employed, what type of work he did, whether he owned his own business, and whether he had been in “trouble” previously. Because Macias had informed Trooper Barragan that his trip to Victoria was medically-related, his job and an ambiguous question related to whether Macias had been in trouble previously had no apparent relation to the itinerary or purpose of the trip.

Further, the video recording shows that Trooper Barragan asked Zillioux a series of questions in quick succession about how long her mother and Macias had been in a relationship, whether Macias had been in trouble previously, how many children Zillioux had, who was watching her children while she was away, why her mother had not accompanied her and Macias on the trip, and for whom she, her mother, and Macias worked. Trooper Barragan admitted at the suppression hearing that these questions were unrelated to Macias’s failure to wear a seatbelt, the circumstance that justified the stop in the first place. Hence, it is clear that Trooper Barragan asked numerous unrelated questions.

We next must determine if these unrelated questions impermissibly extended the duration of the stop. Approximately two minutes passed between the time Trooper Barragan initiated the stop and initially questioned Macias and Zillioux while they sat in the truck. It was not until Macias followed Trooper Barragan to the area in front of the patrol vehicle that Trooper Barragan began to ask questions unrelated to the purpose and itinerary of the stop. Nearly eight minutes elapsed from that point until Trooper Barragan ran the computer checks. Though we recognize that during this time Trooper Barragan also asked Macias and Zillioux questions related to the purpose and itinerary of the trip, Trooper Barragan extensively questioned them both on unrelated topics. These questions therefore extended the stop by some length of time.

Again, I’m just speculating. But I would think that the details of the stop from the videotape were pretty critical in helping the defendant build the case that the officer extended the stop with his questions. Absent the videotape, the factual record would be much less certain. The officer’s recollection would be the primary evidence, and the court would probably have a picture of a relatively brief stop with a wide range of questions by a talkative cop. The videotape shows the details of each question, second-by-second. I would think it was very helpful in providing the evidence for the Court to find a Fourth Amendment violation.

The New York Times has a story on the police “stop and frisk” policies in New York City that states:

Critics say that as part of the Police Department’s stop-and-frisk policy, officers routinely tell suspects to empty their pockets and then, if marijuana is displayed, arrest them for having the drugs in public view, thereby pushing thousands of people toward criminality and into criminal justice system.

Over at Prawfs, Dan Markel notes the serious problems this practices raises from a standpoint of criminal law. I wanted to flag another question: Does ordering a suspect to empty his pockets during a stop-and-frisk violate the Fourth Amendment? That turns out to be a pretty interesting question, on which there is a split in the lower courts.

First, some background. Under Terry v. Ohio and its progeny, the police can “pat down” a suspect for weapons if they have specific and articulable facts that the suspects are armed and dangerous. The cases say that this has to be a search for weapons, not drugs. If an officer feels something through clothing and he suspects that the “something” is drugs, not a gun, he can’t pull out the something and open it to look for drugs. See Minnesota v. Dickerson. In reality, officers routinely flout this limitation. They just say that they are looking for guns, and that the drugs they pulled out from the suspect’s pocket really felt like a gun, not drugs. But there is at least some scrutiny of the searches, with at least a theoretical limit on an officer’s ability to find drugs when he is supposed to be searching for weapons.

Police orders to empty pockets potentially go far beyond that power. A police order to a suspect to empty his pockets can allow an officer to do indirectly what he can’t do directly. Terry doesn’t allow the police to just reach in and empty a suspect’s pockets, exposing all of its contents to plain view. See Sibron v. New York. Rather, Terry requires officers to pat down the suspect from the outside and then only retrieve what may be a weapon. The question is, does the Fourth Amendment allow police officers to order suspects to empty their pockets in lieu of conducting the frisks directly? That is, can the officer order the suspect to do what the officer cannot himself do?

It is clear from the cases that the officer’s order still makes the emptying of the pockets a search. As Judge Sutton recently stated, “an officer may not sidestep the requirements of the Fourth Amendment by directing a suspect to ‘empty your pockets,’ then disclaim any constitutional violation on the ground that he verbally directed the suspect to act without touching or in any way searching him.” United States v. Street, 614 F.3d 228, 234 (6th Cir. 2010). But the trickier question is whether that search is a “reasonable” search under Terry. My quick research suggests that the lower courts are divided on the question.

On one hand, the Fifth Circuit has taken the view that orders to empty pockets are permitted by Terry because they don’t seem more intrusive than a Terry frisk:

Agent Morales did not frisk defendant after he detained him; rather, he asked defendant to empty his pockets and raise his shirt. Defendant contends that Agent Morales exceeded the bounds of Terry by requesting that defendant empty his pockets and lift his shirt. The issue then is whether asking a suspect to empty his pockets and raise his shirt is more intrusive than the frisk permitted in Terry and therefore prohibited by the Fourth Amendment. “Terry does not in terms limit a weapons search to a so-called ‘pat-down’ search. Any limited intrusion designed to discover guns, knives, clubs or other instruments of assault are [sic] permissible.” United States v. Hill, 545 F.2d 1191, 1193 (9th Cir.1976). Thus, the raising of a suspect’s shirt by a law enforcement officer does not violate the boundaries established in Terry. Id. Neither does directing a suspect to lift his shirt to permit an inspection for weapons; a request that a suspect lift his shirt is “less intrusive than the patdown frisk sanctioned in Terry.” Baker, 78 F.3d at 138. At no time during the inspection for weapons did Agent Morales touch the defendant. Non-consensual touching of another in most cases is clearly more intrusive of an individual’s personal security than is a request to raise a shirt or to empty pockets. Agent Morales’ request that defendant empty his pockets and lift his shirt was permissible under Terry.

United States v. Reyes, 349 F.3d 219 (5th Cir. 2003). Other courts have disagreed, arguing that officers lack the power to search pockets themselves and can’t circumvent that limitation by having suspects empty their pockets instead. See, e.g., State v. Hlavacek, 185 W.Va. 371, 407 S.E.2d 375 (1991); State v. Bastian, 37 Kan.App.2d 156 (2007); Matter of Bernard G., 247 A.D.2d 91 (N.Y.A.D. 1 Dept. 1998). See also R.B. v. State, 975 So.2d 546 (Fla.App. 3 Dist. 2008) (“For Fourth Amendment purposes there is no constitutional difference between an order that the student empty his pockets, and the security officer’s conducting a search by reaching inside the student’s pockets.”)

Professor LaFave has argued that the 5th Circuit’s opinion in Reyes is unpersuasive:

[W]hile the nontouching alternative may be in one sense less intrusive, it is more intrusive than the pat-down alternative because all contents of the pockets are exposed to police view without regard to whether any of the objects feel sufficiently like a weapon to be examined after a pat-down.

LaFave, 4 Search & Seizure § 9.6 n. 184 (4th ed.)

Off the top of my head, I tend to agree with LaFave on this one. In my view, an officer can’t do indirectly what the law prohibits him from doing directly. If the law prohibits a police officer from putting his own hands in a suspect’s pocket and emptying out the contents, it should also prohibit him from ordering the suspect to empty out the contents of his pockets. Indeed, it seems to me that the order to empty pockets may be more constitutionally suspect than an officer searching the pockets directly, rather than less. The entire point of the Terry frisk power is to look for weapons. The idea is that an officer may reasonably fear that the suspect has a knife or gun, and the officer therefore must have a limited but essential power to defend himself by disabling the threat against him. I’m no expert in such things, but I would guess that an officer with a genuine fear that a suspect is armed would want to disarm the suspect himself rather than order the suspect to reach into his pockets and retrieve the arms. If that’s right, I would think that an order to empty pockets is much more likely to be about a search for something other than the guns and knives that are supposed to be the targets of a Terry frisk.

The legal question: When a computer is in screensaver mode, does a police officer’s touching a key or moving the mousepad in order to reveal the contents of the screen constitute a Fourth Amendment “search”?

The facts: The local police received a few citizen calls about a threat posted on Craigslist regarding possible planned violence at a local shopping mall. The police contacted Craiglist and obtained contact information for the person who posted the threat. They visited the man at his home, and the man invited the officers inside. While the officers were present in the home, an officer saw a laptop computer that was either off or in screensaver mode. The officer touched a key or moved the mousepad, and the computer came out of screensaver mode. The officer could then see the contents of the screen, and those contents revealed the suspect’s Facebook wall. The Facebook wall contained a “status update” in which the suspect discussed the mall and wrote that another mall was next, and it also showed that the defendant had “liked” a group about the need to change the mall. The police arrested the suspect and took a way the computer. After being charged with making a threat, the suspect-turned-defendant moved to suppress the information relating to the threat found on the computer. He argued, among other things, that taking his computer out of screensaver mode to see the Facebook Wall was a “search” that required some sort of justification under the Fourth Amendment.

The ruling: In United States v. Musgrove, 2011 WL 4356521 (E.D.Wis. 2011) (Joseph, M.J.):

Whether there is a search here is a close call because the officer did not actively open any files. A truly cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a “search” for Fourth Amendment purposes. Arizona v. Hicks, 480 U.S. 321, 328 (1987). However, this is not such a case. By touching a key or moving the mouse, the officer put into view the Facebook wall, which was not previously in view. Though a close call, the Court concludes that this was a search, however minimal, which required further authority, a warrant or consent. The government submits that the officer’s manipulation of the computer was for the purpose of seizing the computer, not to conduct a preliminary search. However, intent is not generally relevant in assessing whether a search ensued. See, e.g., United States v. Mann, 592 F.3d 779, 784 (7th Cir.2010)(citing Platteville Area Apt. Ass’n v. City of Platteville, 179 F.3d 574, 580 (7th Cir.1999)). The Court therefore recommends that the defendant’s Facebook wall be suppressed.

My view: That ruling is correct. As I argued in Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531 (2005):

Accessing information from a computer breaks the seal between public and private, much like entering a home or opening a package. . . . It means, among other things, that accessing information from a computer ordinarily should be a Fourth Amendment “search” that requires a warrant or an exception to the warrant requirement. In general, an investigator who sees a suspect’s computer and starts looking through files is conducting a Fourth Amendment search.

. . . The best answer is that a search occurs when information from or about the data is exposed to possible human observation, such as when it appears on a screen, rather than when it is copied by the hard drive or processed by the computer. I will label this the “exposure-based approach” to interpreting Fourth Amendment searches. . . .

First, focusing on the exposure of data most accurately transfers our physical world notions of searches to the context of computers. Entering a house is a search of physical space because it exposes to human observation the otherwise hidden interior of the house. In the computer context, there is no need to focus the “search” inquiry on a physical action like entry; the law can look directly to exposure. The exposure-based approach focuses doctrinal attention on the key question from the perspectives of individuals and the police alike–whether and when a person’s information will be kept private or exposed and shared with the police. A computer is akin to a virtual warehouse of private information, and the exposure-based approach allows the courts to monitor and require justification for each retrieval of information from the warehouse. It imposes the Fourth Amendment as a barrier to the retrieval of information from nonobservable form to observable form.

Thanks to FourthAmendment.com for the pointer.

I blogged about the panel decision in Amnesty International v. Clapper in March, opening and closing my post with the following two paragraphs:

On Monday, the Second Circuit handed down a very important decision on standing to challenge secret surveillance programs in Amnesty International USA v. Clapper. The decision, by Judge Gerard Lynch and joined by Judges Calabresi and Sack, offers a very easy way for plaintiffs to have Article III standing to challenge surveillance statutes. The opinion strikes me as puzzling, however, and it appears to be in conflict with other Courts of Appeals cases on standing to challenge surveillance regimes. I suspect Supreme Court review is a serious possibility.

Whether you like the new decision or not, I suspect it’s not the last we’ve heard on this issue. The opinion strikes me as in pretty direct tension with cases like ACLU v. NSA, the 6th Circuit’s case rejecting standing for the NSA’s warrantless surveillance program during the Bush years. Given the importance of the issue, and the tensions among the circuits, I would suspect this case may be headed upstairs.

DOJ petitioned for rehearing, and the Second Circuit denied rehearing yesterday in an evenly divided 6-6 vote. A flurry of opinions concurring and dissenting from the denial followed, which are generally pretty strongly worded. To my mind, those opinions make the Clapper case an excellent prospect for Supreme Court review.

I wonder if this really matters, though. Much of the discussion in the opinions concerns the fact that this is a facial challenge, not an as-applied challenge. But there’s an underlying oddity that the opinions don’t mention: Facial challenges are generally frowned upon in Fourth Amendment law, and it’s not clear that the law permits one to be mounted against the FISA Amendments Act at all even if plaintiffs have Article III standing. The key case is Sibron v. New York, 392 U.S. 40 (1968), in which the parties tried to litigate a facial challenge to a stop-and-identify statute. Sibron appears to say that you can’t bring an facial challenge to a statute that regulates warrantless searches and seizures: Facial challenges can only be brought against statutes governing the issuing of warrants. Here’s the key passage from Sibron:

The parties on both sides of these two cases have urged that the principal issue before us is the constitutionality of 180-a “on its face.” We decline, however, to be drawn into what we view as the abstract and unproductive exercise of laying the extraordinarily elastic categories of 180-a next to the categories of the Fourth Amendment in an effort to determine whether the two are in some sense compatible. The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case. In this respect it is quite different from the question of the adequacy of the procedural safeguards written into a statute which purports to authorize the issuance of search warrants in certain circumstances. See Berger v. New York, 388 U.S. 41 (1967). No search required to be made under a warrant is valid if the procedure for the issuance of the warrant is inadequate to ensure the sort of neutral contemplation by a magistrate of the grounds for the search and its proposed scope, which lies at the heart of the Fourth Amendment. E. g., Aguilar v. Texas, 378 U.S. 108 (1964); Giordenello v. United States, 357 U.S. 480 (1958). This Court held last Term in Berger v. New York, supra, that N. Y. Code Crim Proc. 813-a, which established a procedure for the issuance of search warrants to permit electronic eavesdropping, failed to [392 U.S. 40, 60] embody the safeguards demanded by the Fourth and Fourteenth Amendments.

Section 180-a, unlike 813-a, deals with the substantive validity of certain types of seizures and searches without warrants. It purports to authorize police officers to “stop” people, “demand” explanations of them and “search [them] for dangerous weapon[s]” in certain circumstances upon “reasonable suspicion” that they are engaged in criminal activity and that they represent a danger to the policeman. The operative categories of 180-a are not the categories of the Fourth Amendment, and they are susceptible of a wide variety of interpretations. 20 New York is, of course, free to develop its own law of search and seizure to meet the needs of local law enforcement, see Ker v. California, 374 U.S. 23, 34 (1963), and in the process it may call the standards it employs by any names it may choose. It may not, however, authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct. The question in this Court upon review of a state-approved search or seizure “is not whether the search [or seizure] was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one.” Cooper v. California, 386 U.S. 58, 61 (1967).

Accordingly, we make no pronouncement on the facial constitutionality of 180-a.

Sibron explains why there is relatively little law on Article III standing to bring Fourth Amendment facial challenges to statutes. Facial challenges are generally not allowed in the first place — at least unless the case challenges a regime of issuing warrants — so we haven’t seen many battles over Article III standing to raise challenges that can’t go forward anyway. Instead, Fourth Amendment law has focused extensively on “standing” to bring as-applied challenges, which the Supreme Court in Rakas v. Illinois tells us simply folds back on the Fourth Amendment question of whether the government conduct violated the plaintiff’s own reasonable expectation of privacy.