supreme court

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The Supreme Court took on a number of cases this year which have attracted a lot of media and legal attention.  The case involving same-sex marriage has already garnered many headlines and at last count over one hundred ten amicus curaie briefs, while the case discussing tax subsidies in the Affordable Health Care Act has widespread political and economic implications.   In contrast, this term’s criminal procedure cases deal with narrow, technical issues that have mostly flown under the media radar.  But even in a relatively obscure group, the case of Grady v. North Carolina, which was quietly decided in a brief five-page per curia decision last week, surely ranks as the most obscure.  Grady dealt with an interesting Fourth Amendment question: whether attaching an GPS-tracking ankle bracelet to a convicted sex offender constitutes a “search” under the Fourth Amendment.  But the ultimate decision in the case turned on a relatively obvious and well-established point of law: that the Fourth Amendment applies to civil as well as criminal cases (see Ontario v. Quon and Camara v. Municipal Court), and so the North Carolina court was in error when it dismissed the case merely because it was civil in nature.  Thus, the per curiam decision and the dearth of outside interest in the case.

Ankle monitor

Nevertheless, the Grady decision has a couple of interesting aspects to it.  First, it is now the third case to apply the “property rights” test for a search (after Jones, which held that attaching a GPS device to a car was a search; and Jardines, which held that bringing a drug dog to the front porch to sniff for contraband was a search).   (The property rights test defines a search as “physical occupation of private property by the government with the intent to gather information,” which surely applies in Grady).   And unlike Jones and Jardines, the  majority decision does not even mention the Katz test with regard to Grady’s challenge, even to say (as it did in the plurality in Jones and the majority in Jardines) that it need not reach the question of whether the government action invaded the defendant’s reasonable expectation of privacy.  And unlike Jones and Jardines, there was no concurrence specifically describing how the government action would fare under the Katz test.  As the Court stated in Jardines, “[o]ne virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy.”  In this case, the property-rights test made the case so easy that there was no need to even refer to the more traditional Katz test when deciding the case.

The Justices’ decision to not mention the traditional Katz test does not mean the Katz test has any less support than before, of course–in both Jones and Jardines, the Court mentioned that the property rights test was meant to supplement, not replace, the reasonable expectation of privacy test.   And there are plenty of recent cases (such as Riley v. California or Maryland v. King) which relied on the Katz test.  But anyone who thought (or hoped) the property rights test would fall into disuse will now be sorely disappointed–it has now been used to decide three Fourth Amendment cases in the last four years.

Grady re-affirms the property rights test, it also unintentionally highlights the absurdity of using the test when the Katz test could just as easily–and more intuitively–resolve the case.  This absurdity was present in Jones, which held that the Fourth Amendment violation occurred when the government “physically intruded” by attaching of a small device to the underside of the defendant’s car, rather than when the government monitored every location the car travelled to for the next twenty-eight days.   It was present in Jardines, when the Court held that the police officer  violated the defendant’s rights when he stood on the porch with a dog, rather than (as in Kyllo) when he used an unusual tool to gather private information about the inside of the defendant’s home.  But the absurdity is most obvious in Grady.  Here is an individual whose location–in public and in private–will be tracked by the government for the rest of his lifeAnd yet the Supreme Court has held that his Fourth Amendment rights would be violated because the government spent a few seconds attaching a bracelet to his ankle.  Almost anyone who reads this case–lawyer or lay person–will be surprised that this is now the focus of Fourth Amendment jurisprudence.  This case is just as “easy” to decide when using the Katz test; there is no question that monitoring a person’s movements in private violates that person’s reasonable expectation of privacy.  But the Court seems determined to always use the Jones property rights analysis first, even if it seems counter-intuitive to do so.

None of this helps Mr. Grady, of course.  Although the Court held that attaching the ankle monitor was a search, it remanded the case to determine whether attaching such a a monitor to a convicted sex offender is reasonable.  Given the Court’s recent decisions on reasonableness and on sex offenders, Grady should not be too hopeful.

 

Yesterday the Supreme Court decided the Heien case, and as predicted, the Justices ruled in favor of the government in a very limited holding.  Stating that “[t]o be reasonable is not to be perfect,” the Court allowed for a police officer’s reasonable suspicion to be based on a  reasonable mistake of law, but also pointed out that very few mistakes of law by a police officer will ever be deemed reasonable.  The only real surprise here was the lopsided vote: it was an 8-1 opinion, with only Justice Sotomayor in dissent.  Here is the key passage from the majority opinion:

Contrary to the suggestion of Heien and amici, our decision does not discourage officers from learning the law. The Fourth Amendment tolerates only reasonable mistakes, and those mistakes—whether of fact or of law—must be objectively reasonable. We do not examine the subjective understanding of the particular officer involved.  Cf. Whren v. United States, 517 U. S. 806, 813 (1996). And the inquiry is not as forgiving as the one employed in the distinct context of deciding whether an officer is entitled to qualified immunity for a constitutional or statutory violation. Thus, an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce.

Indeed, the only two examples that the Court gives of a possible reasonable mistake of law are (1) when an officer relies on a law that is later overturned (as in the DeFillipo case that the Court cites), or (2) when an officer “suddenly confronts a situation in the field as to which the application of a statute is unclear”–such as seeing a Segway “whiz by” in a park and deciding whether the operator is violating a law against “vehicles in the park.”  The fact that the Court chose such an ancient and intractable legal puzzle as the vehicles in the park dilemma indicates that this doctrine will be limited to  truly ambiguous applications of the law.

Justice Kagan’s concurrence emphasizes this limitation, pointing out that the objective nature of the analysis means that “the government cannot defend an officer’s mistaken legal interpretation on the ground that the officer was unaware of or untrained in the law. And it means that, contrary to the dissenting opinion in the court below, an officer’s reliance on ‘an incorrect memo or training program from the police department’ makes no difference to the analysis.”

In her dissent, Justice Sotomayor echoes many of the concerns of the amici briefs in the case: “[o]ne is left to wonder…why an innocent citizen should be made to shoulder the burden of being seized whenever the law may be susceptible to an interpretive question.”  But in doing so she mis-states (perhaps intentionally) the majority’s decision. Heien does not allow police to seize a suspect anytime the law “may be susceptible to an interpretive question”–it will only apply when the law is so ambiguous that a well-informed police officer can make a reasonable mistake as to whether it prohibits certain behavior.

In the end, this case will (hopefully) not fundamentally change the way police activity is conducted, or the way it is reviewed by the courts.  No doubt prosecutors will try to stretch Heien in the coming years, attempting to fit all sorts of ignorant or sloppy police activity into its holding.  Given the language in the Heien decision, the lower courts should have no problem swatting those claims aside and keeping the Heien doctrine strictly limited to truly reasonable mistakes of law.

In Heien v. North Carolina, the Supreme Court will decide whether reasonable suspicion to stop a vehicle can be based on a police officer’s reasonable mistake of law.  In this case, the sergeant observed the defendant driving with only one brake light and, believing that this violated North Carolina traffic laws, the sergeant pulled the car over.  The familiar pattern of a consent search and discovery of drugs followed in due course.  At trial the defendant argued that he was not in fact in violation of the traffic laws and therefore the stop was unconstitutional.  The lower court disagreed, holding that it was in fact illegal for the defendant to drive with only one brake light, but the intermediate appellate court reversed, engaging in a lengthy discussion of the North Carolina Traffic Code an ultimately concluding that a driver may legally operate a car with only one brake light.  Thus, the appellate court concluded that the stop was unconstitutional and therefore the drugs should be suppressed.

brake light North carolina law 2

 

The prosecution appealed to the North Carolina Supreme Court, but interestingly enough, it did not appeal the question of whether it is legal to drive with one brake light.  Instead, it argued that the stop was constitutional because the sergeant had a reasonable and good faith belief that the defendant was breaking the law.  In a 4-3 decision, the court agreed with the government’s position and upheld the search:

We are not persuaded that, because Sergeant Darisse was mistaken about the requirements of our motor vehicle laws, the traffic stop was necessarily unconstitutional.  After all, reasonable suspicion is a “commonsense, nontechnical conception [] . . . on which reasonable and prudent men, not legal technicians, act,” and the Court of Appeals analyzed our General Statutes at length before reaching itsconclusion that the officer’s interpretation of the relevant motor vehicle laws was erroneous.

Many of those who oppose the decision of the North Carolina Supreme Court (including the three justices who dissented) argue that allowing a reasonable mistake of law to form the basis of reasonable suspicion would represent a significant step in the perceived erosion of our Fourth Amendment rights.  For example, the dissent argued that the majority’s decision would apply:

when the officer acts based on the misreading of a less innocuous statute, or an incorrect memo or training program from the police department, or his or her previous law enforcement experience in a different state, or his or her belief in a nonexistent law.

But this is surely not the case.  A police officer’s “belief in a nonexistent law” could not possibly be considered reasonable.  And a mere “misreading” of a law is not reasonable—Sergeant Darisse’s mistake was only deemed reasonable because a trial court later agreed with it and the appellate court needed pages of sophisticated statutory analysis to determine that both the Sergeant and the trial court were wrong.  And if the police officer is basing his or her belief on “an incorrect memo or training program from the police department,” this does not make the mistake reasonable; it simply means that the unreasonable mistake was made by someone else in the police department.  (In Herring v. United States, the Supreme Court held that the exclusionary rule should not be applied in such a case because the officer acted in good faith, but that is a question of remedies, not rights.  For a good analysis of this “right/remedy” distinction in the Heien case, see this blog post by Professor Rory Little).

In reality, if the Court finds that a reasonable mistake of law can be the basis of an officer’s reasonable suspicion (which it probably will), the impact of this decision will be quite limited.  When is a court going to deem that a police officer’s mistake of law is reasonable?  Almost never.  Although the North Carolina Supreme Court rejected the defendant’s position that a police officer’s mistake of law is always unreasonable, it implied that a police officer’s mistake of law is almost always unreasonable.  Heien was a very unusual case, involving an ambiguous law and a rather unexpected interpretation of the law by a appellate court.  Most of the mistakes of law made by police officers (which are probably relatively rare in the first place) would not meet the reasonableness standard.

As many commentators have noted, reasonableness is becoming more and more significant in the Court’s Fourth Amendment analyses.  In the past two years alone, the Supreme Court has applied a reasonableness test to preclude detention of suspects not present at the site where a search warrant is executed; to prohibit a per se finding of exigency to take blood samples in drunk driving cases; to allow strip searches and for those arrested for minor crimes; and to allow DNA tests for those arrested of felonies.  In each of these cases, the Court avoided applying a bright-line test and instead balanced the competing interests of law enforcement and the privacy rights of suspects.  From the questions at oral argument, it appears the Justices will follow the same course in this case as well.