Fourth Amendment Tag

In a 5-4 decision which resulted in 4 separate dissents, today, the Supreme Court held in Carpenter v. United States that the government conducts a search for the purposes of the Fourth Amendment when it obtains a cell phone user’s cell-site location information (CSLI) from a third party wireless provider. Although the Court explained the Orwellian implications of allowing the government to have “near perfect” retrospective surveillance of a user, “as if it had attached an ankle monitor to the...

Monday, April 2nd in a per curiam opinion, the Supreme Court granted, vacated, and remanded Kiesla v. Hughes, a qualified immunity case out of the Ninth Circuit. This is another instance of the Supreme Court reminding lower courts that they cannot analyze the clearly established prong of the qualified immunity inquiry at too high of a level of generality or utilize case law which was decided after the incident in question. In this case, police officers received a report that a...

At the Supreme Court’s “long conference,” where it decides which petitions—that have been piling up all summer—to accept, the Court agreed to hear two unrelated cases involving car searches. Per the Fourth Amendment police officers generally need a warrant to search a car. However,  the automobile exception allows officers to search a car that is “readily mobile” without a warrant if officers have probable cause to believe they will find contraband or a crime has been committed.  Collins v. Virginia raises the question of whether the automobile exception applies to a car that is parked on private property.

No matter the legal issue, excessive forces cases are difficult for state and local governments to win because they often involve injury or death (in this case of a totally innocent person). To win one unanimously likely says something about the problematic nature of the legal theory. In County of Los Angeles v. Mendez the Supreme Court rejected the “provocation rule,” where police officers using reasonable force may be liable for violating the Fourth Amendment because they committed a separate Fourth Amendment violation that contributed to their need to use force. The State and Local Legal Center (SLLC) filed an amicus brief asking the Supreme Court to reject the Ninth Circuit’s provocation rule. Police officers entered the shack Mendez was living in without a warrant and unannounced. Mendez thought the officers were the property owner and picked up the BB gun he used to shoot rats so he could stand up. When the officers saw the gun, they shot him resulting in his leg being amputated below the knee. The Ninth Circuit concluded that the use of force in this case was reasonable. But it concluded the officers were liable per the provocation rule--the officers brought about the shooting by entering the shack without a warrant. (The Ninth Circuit granted the officers qualified immunity for failing to knock-and-announce themselves.) The Ninth Circuit also concluded that provocation rule aside, the officers were liable for causing the shooting because it was “reasonably foreseeable” that the officers would encounter an armed homeowner when they “barged into the shack unannounced.” 

What if a police officer arrests someone because the officer doesn’t believe the person is telling the truth and there is evidence the officer is right?  In District of Columbia v. Wesby the Supreme Court will decide whether, when the owner of a vacant house informs police he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects' claims of an innocent mental state.  Facts similar to those in this case may not arise very often. But police officers must assess claims of innocence in numerous other instances (theft, assault, even homicide).   Police officers arrested a group of late-night partygoers for trespass. The party-goers gave police conflicting reasons for why they were at the house (birthday party v. bachelor party). Some said “Peaches” invited them to the house; others said they were invited by another guest. Police officers called Peaches who told them she gave the partygoers permission to use the house. But she admitted that she had no permission to use the house herself; she was in the process of renting it. The landlord confirmed by phone that Peaches hadn’t signed a lease. The partygoers were never charged with trespass.  The partygoers sued the police officers for violating their Fourth Amendment right to be free from false arrest. To be guilty of trespass the partygoers had to have entered the house knowing they were doing so “against the will of the lawful occupant or of the person lawfully in charge.” The partygoers claimed they did not know they lacked permission to be in the house. 

The authors of Searching for Scalia evaluated who on President Trump’s list of potential nominees to replace Justice Scalia’s seat on the Supreme Court would be most like Justice Scalia—the originalist, the textualist, and, most importantly, the conservative. The winner:  Supreme Court nominee Judge Neil Gorsuch! While just one case is too few to judge any Supreme Court nominee, one case in particular gives states and local governments a reason to be excited about this nomination. Last year Judge Gorsuch (strongly) implied that given the opportunity the U.S. Supreme Court should overrule Quill Corp. v. North Dakota (1992). In Quill, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax. While Judge Gorsuch hasn’t ruled on abortion (an issue states care about) his most prominent rulings involve a related issue (the Affordable Care Act birth control mandate), which is not of particular interest to states and local governments. Interestingly, in the one area of the law where the views of Judge Gorsuch and Justice Scalia differ—agency deference—the views of states and local governments are generally more in-line with Judge Gorsuch’s view.

Los Angeles County v. Mendez poses a simple question:  Should police officers be liable for the use of reasonable force (when they have done something they should not have).

In its amicus brief the State and Local Legal Center (SLLC) asks the Supreme Court to reject the “provocation” rule, under which any time a police officer violates the Fourth Amendment and violence ensues, the officer will be personally liable for money damages for the resulting physical injuries.  In Los Angeles County v. Mendez everyone agrees police officers used reasonable force when they shot Angel Mendez. As officers entered, unannounced, the shack where Mendez was staying they saw a silhouette of Mendez pointing what looked like a rifle at them.  Mendez kept a BB gun in his bed to shoot rats when they entered the shack. Mendez claimed that when the officers entered the shack he was in the process of moving the BB gun so he could sit up in bed. The officers shot Mendez.

It is undisputed that police officers used reasonable force when they shot Angel Mendez. As officers entered, unannounced, the shack where Mendez was living they saw a silhouette of Mendez pointing what looked like a rifle at them. Yet, the Ninth Circuit awarded him and his wife damages because the officers didn’t have a warrant to search the shack thereby “provoking” Mendez. (Mendez kept a BB gun in his bed to shot rats when they entered the shack. Mendez claimed that when the officers entered the shack he was in the process of moving the BB gun so he could sit up in bed.) In Los Angeles County v. Mendez the Supreme Court must decide whether to accept or reject the Ninth Circuit’s “provocation” rule. Per this rule, “Where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation, he may be held liable for his otherwise defensive use of deadly force.”

What does a litigant do when the statute of limitations has run on his or her best claim?  Get creative, of course, especially when the Supreme Court has left the door open. Elijah Manuel was arrested and charged with possession of a controlled substance even though a field test indicated his pills weren’t illegal drugs. About six weeks after his arrest he was released when a state crime laboratory test cleared him.  

As a result of the Supreme Court’s decision in Birchfield v. North Dakota in states that criminalize the refusal to take a blood alcohol concentration tests, officers should offer only a breath (not blood) test unless they have a warrant. The Court held 5-3 that states may criminalize an arrestee’s refusal to take a warrantless breath test. If states criminalize the refusal to take a blood test police must obtain a warrant. The State and Local Legal Center (SLLC) filed an amicus brief arguing that states should be able to criminalize warrantless refusal to consent when a person is arrested upon suspicion of drunken driving.