pageok
pageok
pageok
Engleman v. Murray and Extraterritorial Enforcement of Arrest Warrants:
The Eighth Circuit decided a very interesting Fourth Amendment case yesterday involving extraterritorial enforcement of warrants: Engleman v. Murray. The case end up creating some interesting tensions in Fourth Amendment law, so I thought I would blog a bit about it.

  First, the facts. Engleman made a 911 call to report a prowler, and he gave the address of the home where he was calling as "24512 Van Fleet Road, Siloam Springs, Arkansas." The call was routed to the Arkansas local police, who learned in the course of the call that there was an Arkansas warrant out for Engleman's arrest. The police ended up going to the home and searching for Engleman to execute the Arkansas warrant. In the home, though, the officers were told that the home was actually inside Oklahoma, not Arkansas. Indeed, believe it or not, it turns out that while the mailbox of the home is in Arkansas — and thus the mailing address of the home is in Arkansas — the Oklahoma/Arkansas line cuts through the property and the home itself is actually located in Oklahoma. (What is this, a law school exam?) The police arrested Engleman under the Arkansas warrant, and Engleman then sued the police for violating his Fourth Amendment rights by carrying out the Arkansas warrant in Oklahoma.

  In a divided opinion by Judge Gruender, joined by Judge Beam, the Eighth Circuit concluded that under the originalist framework articulated by the Supreme Court in Virginia v. Moore, the Arkansas warrant was invalid in Oklahoma. Under the English common law, warrants had no force outside their territory:
At the time the Bill of Rights was adopted, a warrant issued in one English county was not valid in another county unless a justice of the peace in that county "backed" the warrant. See William Blackstone, 4 Commentaries *292. "[W]hen a warrant is received by the officer he is bound to execute it, so far as the jurisdiction of the magistrate and himself extends." Id. at *291; see Blatcher v. Kemp, (1782) 126 Eng. Rep. 10, 10 n.a (Maidstone Assizes) ("No constable can act under a warrant, out of his district . . . ."); R v. Chandler, (1700) 91 Eng. Rep. 1264, 1265 (K.B.) ("[W]here a precept or warrant is directed to men by the name of their office, it is confined to the districts in which they are officers."). Under a historical understanding of the Fourth Amendment, the jurisdiction of the issuing judge and the executing officer is limited, and a warrant is not valid if an officer acts outside of that limited jurisdiction. See Lawson v. Buzines, 3 Del. (3 Harr.) 416, 416 (Sup. Ct. 1842) (concluding that "a constable of the city . . . has no authority out of the city limits" to execute an arrest warrant issued in that county); Copeland v. Isley, 19 N.C. (2 Dev. & Bat.) 505, 505 (1837) ("[A]n officer must proceed to arrest at some place actually in his own county . . . .").
  The court then concluded that qualified immunity nonetheless applied because under the circumstances, the officers could reasonably believe that they were in Arkansas, not Oklahoma, and therefore had authority to carry out the warrant. (Confusingly, at the end of the opinion the court says that because the officers reasonably believed that they were in Arkansas, they reasonably relied on the warrant and did not violate the Fourth Amendment but that qualified immunity applied because the right was not clearly established — more on this in a moment.) Judge Bye dissented, arguing that the officers should have known they had no authority to do what they did.

  A few thoughts and reactions to the case. First, it's fascinating that the court here, and a few other courts recently, are construing Virginia v. Moore as requiring an originalist analysis of the reasonableness of a search or seizure. Lower courts usually ignore methodological advice like that, and instead engage in either reliance on precedent or the balancing approach to reasonableness. Is Moore going to signal a more widespread reliance on originalism in Fourth Amendment law in the lower courts? Time will tell, but it might.



XON:
Disgusting. Cue J. Edgar Hoover.
11.18.2008 6:17pm
Dilan Esper (mail) (www):
Third, there is a lot of law on extraterritorial arrests that the court doesn't address, presumably because none of the parties raised it. My understanding has been that the usual rule is that an officer who leaves his own jurisdiction has the rights to arrest of a private citizen, so courts normally look to the "citizen's arrest" law of the extraterritorial jurisdiction to see if the arrest was permitted. See generally State v. Stevens, 620 A.2d 789, 295 n.19 (Conn. 1993) (citing cases).

You are definitely correct in this understanding, Professor Kerr. I remember briefing that exact issue extensively when I represented Humberto Alvarez-Machain (the issue was the legality of an arrest in Mexico on a US warrant).
11.18.2008 6:20pm
Dave N (mail):
It seems that qualified immunity should apply for two separate, though interrelated, reasons (putting aside the 4th Amendment issues).

1. The police were dispatched to an address they reasonably believed was within their jurisdiction.

2. Engleman contributed to the confusion by at least inferring to the 9-1-1 operator that he was in Arkansas and not Oklahoma and accepting the assistance of Arkansas police until they discovered there was an Arkansas warrant for his arrest.

As a result, Engleman should be estopped from arguing about an arrest arising from him summoning Arkansas authorities
into Oklahoma.
11.18.2008 6:28pm
John P. Lawyer (mail):
Orin,
Quick question, assume for a moment that the law was clearly established in this context, i.e., that an officer violates the 4th amendment by executing an arrest with a territorially invalid arrest warrant. You note that nevertheless the officers were entitled to qualified immunity because the officers made a "reasonable mistake of fact" by thinking they were in Arkansas (rather than Oklahama) when executing the arrest warrant. Why isn't that a question for the jury? I recognize that the qualified immunity analysis is typically a question of law for the court to answer. But when the facts underlying the qualified immunitity analysis are in dispute, shouldn't the jury, rather than judge, resolve them? In this case, the plaintiff alleges that the officers knew they weren't in Arkansas when they executed the arrest warrant. In short, why should a judge decide whether the officers' mistake was in fact reasonable when the circumstances surrounding the plaintiff's arrest are in dispute.
11.18.2008 7:08pm
OrinKerr:
John P. Lawyer,

No, it's a question for the court in the qualified immunity context. The facts aren't in dispute: the question is whether the officers' mistake about the facts was reasonable.
11.18.2008 7:21pm
John P. Lawyer (mail):
Orin,
I don't understand why you think the facts aren't in dispute. The officers claim they believed they were in Arkansas. The dissent notes that there is evidence (rather allegations) suggesting that the officers knew they were in Oklahoma. Does the judge get to decide who to believe in making the qualified immunity determination? Isn't the fact (if true) that officers knew they were in Oklahoma undermine their claim that they made a reasonable mistake of fact in executing the arrest warrant?
11.18.2008 7:36pm
fortyninerdweet (mail):
There's nothing here about extradition from OK to AR. Was that part of the issue and merely ignored? If I'd been the "osifer" that were told he was mistakenly in another state, and had been in the process of serving a warrant, I would have called for a local mountie to respond to take over the process.

I guess the point being that once the officers knew they might be in another jurisdiction prudence should have dictated NOT taking a prisoner back over the line without going through the extradition process. Unless, of course, they had first spotted Englemann on the AR side of the line and followed him across in "hot pursuit". Assuming none of this actually applies, but am wondering why?
11.18.2008 7:57pm
OrinKerr:
John,

If I recall correctly, the legal question is objective, not subjective. The officers' subjective understanding is irrelevant, as it usually is in Fourth Amendment law. That's my recollection, at least.
11.18.2008 7:59pm
David M. Nieporent (www):
2. Engleman contributed to the confusion by at least inferring to the 9-1-1 operator that he was in Arkansas and not Oklahoma
He did no such thing. Bad Dave N. Bad. He implied. He didn't infer.
11.18.2008 10:46pm
Oren:

If I recall correctly, the legal question is objective, not subjective. The officers' subjective understanding is irrelevant, as it usually is in Fourth Amendment law. That's my recollection, at least.

I think you've just kicked the can down the road. Suppose that the plaintiff asserts (non-frivolously) that no reasonable officer in that situation could have believed they were in AL. The legal matter of QI would then turn on an inquiry of the facts on the ground -- specifically, whether they were such that the officer's belief was objectively reasonable.
11.19.2008 12:21am
OrinKerr:
Oren,

I don't think that's right, actually. Whether a reasonable officer could have believed they were in Arkansas is a legal question, not a factual one: It is a legal conclusion based on an asserted set of facts. (That is, if you imagine a world that the defendant saw, as alleged by the plaintiff, you then ask whether as a matter of law a reasonable officer in that position could have believed he was in Arkansas.)
11.19.2008 12:52am
Philistine (mail):
I think the actual question was a subjective one--one unidentified officer said "we got away with it once" -- apparently in a context showing that officer, at least, [i]knew[/i] they were in OK.

The majority said there was no evidence that the officer in question either said it or heard it. The dissent said whether the officer in question heard it or said it was a question of fact (which would preclude summary judgment).

The majority's decision that there was no evidence whether the officer in question heard it (or said it) means that it never reached the question of whether a reasonable officer, hearing that from another officer, could have believed they were in Ark.
11.19.2008 6:33am
Brian S:
I don't see how Engelman's statement regarding his address should result in his being estopped, since he gave the correct mailing address. In most areas your 911 address is the same as your mailing address, and if his mail is delivered to an Arkansas box he gave the right information. If it's possible to have an Oklahoma property with an Arkansas mailing address, it should be reasonable to communicate that set of facts to the police.
11.19.2008 9:08am
Sean M:
Civil Procedure bonus question!

Of what state is he considered to be domiciled in for diversity of citizenship purposes?
11.19.2008 9:33am
Frog Leg (mail):
The 4th Amendment concerns aside, are there any issues of state sovereignty here? Were Oklahoma's rights violated by the presence in Oklahoma of an Arkansas official acting solely under the color of Arkansas law?
11.19.2008 9:56am
Frog Leg (mail):
Related to the question of law vs. question of facts issue, the 6th Circuit did a published opinion earlier this year on whether factual determinations underlying a search warrant should be submitted to a jury. The court said no, but this issue is far from dead:

http://www.ca6.uscourts.gov/opinions.pdf/07a0444p-06.pdf
11.19.2008 10:02am
Ben S. (mail):
The subjective vs. objective debate can largely be resolved by looking to the actual majority opinion. To wit:


However, a claim of "qualified immunity would be defeated if an official knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the plaintiff." Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982) (quotation, alteration and emphasis omitted).


Obviously the officers are going to allege that they had no idea they were in OK and thought they were safely in AR. If the court accepts that allegation, the question is whether that belief was objectively reasonable.

However, the question of objective reasonableness could be avoided altogether if there is reason to believe that the officers did in fact know (1) that they were in OK and (2) whether executing an AR warrant in OK was a violation of Engleman's constitutional rights.

In that regard, I think evidence that the officers said, essentially, "We've gotten away with this before," might suffice to show such knowledge. Thus, it would seem to come down to a question of fact as to whether that statement was actually uttered. (I suspect it wasn't uttered because if the cops had gone through a similar process before, even if successful, they would understand the benefit of having an OK warrant so as to avoid this exact sort of needless litigation.)

Reading the rest of the decision now . . .
11.19.2008 10:55am
Ben S. (mail):
I see the dissent essentially makes my previous point, though without the benefit of my framework. Since this comes in the context of summary judgment, I believe the dissent is correct in this instance.
11.19.2008 11:09am
abu hamza:
the police entered a dwelling in another state to serve a warrant for arrest. for the local police the proximity and issue of hte state line is well known ( has to be ... like in KC MO vs KC KS. the ARK police could have easily radio'd the across-the-state-line counterparts. We are not asking much of the police by asking them to have the proper authorities arrest this man in his dwelling. we should err on the side of the police having to follow the law instead of having obsequious courts create doctrines to excuse the mulititude of "i didn't know's" professed by the police in this and other settings.
11.19.2008 11:19am
PLR:
As for the use of the so-called originalist analysis, I doubt this opinion even reflects a trend in the Eighth Circuit beyond those panels on which Judge Gruender appears, based on my knowledge of him.
11.19.2008 12:53pm
Oren:
I don't think that's right, actually. Whether a reasonable officer could have believed they were in Arkansas is a legal question, not a factual one: It is a legal conclusion based on an asserted set of facts.


That doesn't seem to be the case. The defendant asserted a set of facts (perhaps not credibly, but taking his allegations as true) under which the officers could not have possibly thought they were still in AR. If the standard is as you claim -- take the allegations as true and evaluate according to an objective standard -- then QI ought to be denied.

This cannot possibly be the case though because then every plaintiff would allege a set of facts that would deny QI, thus defeated the point of protecting officials from having to constantly defend themselves (which, as I understand, is a primary motive of QI).
11.19.2008 12:57pm
whit:

the police entered a dwelling in another state to serve a warrant for arrest. for the local police the proximity and issue of hte state line is well known ( has to be ... like in KC MO vs KC KS. the ARK police could have easily radio'd the across-the-state-line counterparts. We are not asking much of the police by asking them to have the proper authorities arrest this man in his dwelling. we should err on the side of the police having to follow the law instead of having obsequious courts create doctrines to excuse the mulititude of "i didn't know's" professed by the police in this and other settings.


officers are supposed to be reasonable, not omniscient.

it is entirely reasonable, if you are sent by your dispatchers (who are supposed to have the proper geocoding as part of enhanced 911 etc.) to an address supposedly in your state jurisdiction, to assume that if the mailbox/address you are sent to is in your state, the actual dwelling is, too

this case *is* unique, in that if it was offered as a hypothetical,most people would go "wow, that's a little bit extreme"

again, the standard is reasonable officer not super sweet ominiscient officer.

fwiw, in my jurisdiction... *if* there was a question, i would load up my parcel viewer program (using my modem) and get information on the exact parcel i am going to but we do not know if the officer's had such technology in their cars, or whatever. even if they did, i don't think a reasonable officer would necessarily have checked. an extra special prudent officer might have, but that's not the standard.
11.19.2008 1:54pm
Oren:
Whit, that's true for the facts as you understand them. Accepting the facts as the plaintiff alleges (which are quite different) and it would take a particularly dense officer not to know which state he was in.

Of course, I have no idea which set of facts is correct but I agree with John that this is not a purely legal question or, alternatively, if we accept the plaintiff's version as absolutely credible then we must deny QI.
11.19.2008 3:16pm
Grigor:
For what it is worth, it is interesting to look at a Google map of the area. Van Fleet Road runs east-west till it hits the Arkansas-Oklahoma border, then turns 90 degrees and runs north-south along the border (but located wholly on the Arkansas side). It certainly looks from the map as though a house on the west side of the N-S road could have its body in Oklahoma but its front door in Arkansas.

However, the east-west portion of the road has addresses in the 24000 series, but when the road turns the north-south portion is numbered in the 12000-13000 range. So a local police officer hearing an address in the 24000 range would naturally think that the location is on the portion of the road that is wholly and unambiguously on the Arkansas side. And indeed, if the address given in the opinion is correct the house would be located there.
11.19.2008 3:26pm
pete (mail) (www):

And indeed, if the address given in the opinion is correct the house would be located there.


Also just north of the house is "State Line Road" which runs along the states' boundary. The address listed in the decision is a couple thousand feet from the border, but google maps could be wrong here since Van Fleet road does cross the state line and bulges out from it a few times.

I have vistied that area of Arkansas before and there are lots of streets that cross state borders and some liquor stores set up just over the state line because at least one county in the area is dry.
11.19.2008 3:40pm
whit:

Accepting the facts as the plaintiff alleges (which are quite different) and it would take a particularly dense officer not to know which state he was in.



not at all. the facts, as the plaintiff alleges are that he told the officers they were in oklahoma.

groovy.

it's not just whether he alleged that (assume he did), but whether 1) the officers should have believed him CONTRARY to the info from their dispatchers, the mailbox etc. 2) whether they had a duty to investigate his claims at the time of arrest (case law says they don't)

remember, this is a guy who

1) evades court process etc. .. which is the reason the warrant existed in the first place
2) hid from police
3) physically resisted police

here's a little hint. people who act like the guy did are going to get less benefit of doubt and be given less credibility, at time of arrest

as it should be.

yes, the father also made the oklahoma claim. but i can't begin to tell you how many relatives of warrant subjects will lie (the crime in my jurisdiction is "hindering prosecution") in order to try the prevent the arrest of their son, daughter, etc.

i've had otherwise law abiding grey haired old ladies who probably never even violated a stop sign in their life, lie through their teeth about whether or not little johnny was inside the house or not, etc. when executing a warrant. cops know this.

so, even accepting the plaintiffs claims that he told them they were in oklahoma, and/or the comment allegedly made about getting away with it before (file under snark), the officers still acted reasonably.

*if* the guy had been forthright and honest from the beginning, he might have more credibility, and his claim might have more weight.
11.19.2008 3:57pm
Philistine (mail):


not at all. the facts, as the plaintiff alleges are that he told the officers they were in oklahoma.



To be fair--the Plaintiff also alleges that one of the officers admitted that that officer knew he was in Oklahoma.
11.19.2008 5:41pm
whit:

To be fair--the Plaintiff also alleges that one of the officers admitted that that officer knew he was in Oklahoma


not really. he alleges that he told the officer, after he was arrested, that a similar incident happened regarding the whole oklahoma thang before and the arrest was thrown out, and the officer responded "we got away with it once"

that's snark. one of the few ways law and order (the tv show) is accurate is in its portrayal of officer's use of sarcasm.

for example, I have had NUMEROUS times people say things like "this is a false arrest", at which point I might say "sure it is. go ahead and sue me, i need the overtime" or other such snark.

or "you just pulled me over because i am (insert racial category here)" and the reply might be "yea, otherwise i would never pull over a person doing 85 in a 25 zone and driving the wrong way on a one way street" etc.

the officer's response was pretty clearly sarcasm. the "we" doesn't even necessarily refer to his own agency.

etc.

in other words, the plaintiff alleges that the officer made a snarky comment in regards to his protest of false arrest. based on my knowledge of sarcastic, jaded, salty street cops, it sounds exactly like what an officer would say to an annoying putz who had already evaded arrest, hid from officers, and resisted arrest.
11.19.2008 6:46pm
Oren:


Accepting the facts as the plaintiff alleges (which are quite different) and it would take a particularly dense officer not to know which state he was in.

not at all. the facts, as the plaintiff alleges are that he told the officers they were in oklahoma.

Furthermore, he alleges that this thing happened before numerous times and they could not have forgotten that fast.

it's not just whether he alleged that (assume he did), but whether 1) the officers should have believed him CONTRARY to the info from their dispatchers, the mailbox etc. 2) whether they had a duty to investigate his claims at the time of arrest (case law says they don't)

Again, crediting his factual allegations as true, no investigation was necessary as no reasonable officer could possibly have thought he was in AL.


remember, this is a guy who

1) evades court process etc. .. which is the reason the warrant existed in the first place
2) hid from police
3) physically resisted police

here's a little hint. people who act like the guy did are going to get less benefit of doubt and be given less credibility, at time of arrest

Irrelevant. For the purposes of this pleading we must accept 100% of what he alleges as true.


yes, the father also made the oklahoma claim. but i can't begin to tell you how many relatives of warrant subjects will lie (the crime in my jurisdiction is "hindering prosecution") in order to try the prevent the arrest of their son, daughter, etc.

i've had otherwise law abiding grey haired old ladies who probably never even violated a stop sign in their life, lie through their teeth about whether or not little johnny was inside the house or not, etc. when executing a warrant. cops know this.

Most people resent being used as tools of the government, at least when that government is locking up their relatives (highly off topic).


so, even accepting the plaintiffs claims that he told them they were in oklahoma, and/or the comment allegedly made about getting away with it before (file under snark), the officers still acted reasonably.

Not under the set of facts alleged by the plaintiff (which are doubtful, but Orin has instructed me to accept them as true for the purposes of this motion).

*if* the guy had been forthright and honest from the beginning, he might have more credibility, and his claim might have more weight.
11.19.2008 9:31pm
Oren:
Also, whit, you are focusing far too much on what this putz said at the time and not enough about what he alleges (which is to be taken as true at this point) that any reasonable officer should have known.
11.19.2008 9:32pm
whit:
and i see nothing compelling whatsoever that any reasonable officer should have known they were in oklahoma.

assume a different pattern.

assume he protested "hey, this house is in oklahoma. there's a property tax bill from the county of oshbegosh oklahoma sitting there on my table in front of you that would prove it."

THAT would then be unreasonable for the officer to not investigate (imo).

but all we have is his and his dad's protestations.

again, do we even know the prior alleged bad arrest that was thrown out due to the territorial issue was even done by the same AGENCY as this arresting officer's, let alone that he knew about it?
11.20.2008 2:26pm