Supreme Court Cases

In a 5-4 decision yesterday, the Supreme Court held in United States v. Patel that hotel owners cannot be required to turn over their registries to law enforcement without some kind of judicial review.  The case centered on a Los Angeles municipal code provision that required all hotels to keep a registry with information about there guests and to turn the information over to law enforcement upon request.  Law enforcement officers did not need to make any kind of showing of need before making the request, nor did the officers need to get judicial approval.  A hotel owner sued the United States government, mounting a facial challenge to the ordinance on the grounds that it allowed for a suspicionless search that violated its rights.  Five Justices agreed.

There are three interesting aspects to this opinion:

First, eight of the Justices held that plaintiffs can bring facial challenges under the Fourth Amendment.  In my preview of this case, I predicted that the Supreme Court would not allow facial challenges because it would open the door to too many hypothetical cases.  This prediction proved to be completely incorrect.  The Court noted that it allowed facial challenges in many other contexts, and that there was no reason to prohibit them in the Fourth Amendment context.  The Court also noted that a facial challenge to a statute can succeed even if there were some situations in which the search would be authorized by some authority other than the challenged statute:

Similarly, when addressing a facial challenge to a statute authorizing warrantless searches, the proper focus of the constitutional inquiry is searches that the law actually authorizes, not those for which it is irrelevant. If exigency or a warrant justifies an officer’s search, the subject of the search must permit it to proceed irrespective of whether it is authorized by statute. Statutes authorizing warrantless searches also do no work where the subject of a search has consented. Accordingly, the constitutional “applications” that petitioner claims prevent facial relief here are irrelevant to our analysis because they do not involve actual applications of the statute.

Second, this holding will have an important effect on the development of the third party doctrine in Fourth Amendment jurisprudence.  Under the third party doctrine, an individual gives up all of his or her Fourth Amendment rights in an item or a piece of information if he or she hands it over to a third party.  That third party is free to give it to law enforcement, and the original owner of the item or document has no right to object.  Patel does not change any of that.  However, what if the third party–the hotel, the bank, or the internet service provider–does not want to turn the information over to law enforcement upon request?  Before Patel, the third party’s rights to object were relatively fuzzy, but Patel set out clear standards: the government must get some kind of “precompliance review” of its request before the third party can be forced to turn over the information.  This means either an administrative warrant (which is issued by a judge) or–if the government obtained a subpoena and the third party challenged the subpoena–a review of the subpoena by a judge or magistrate.  Granted, the standard for obtaining an administrative warrant or defending a subpoena is relatively low, but the requirement of precompliance review by a neutral judicial official is still a significant one.

Of course, none of this matters if the third party decides to cooperate with law enforcement–as has happened very frequently in the past.  But in the wake of the Snowden revelations and the public outcry that followed, more and more companies are beginning to assert their rights to keep this information from the government–both because the information has intrinsic value to them and because their customers are demanding more privacy.  Some companies, like Google, are challenging subpoenas more and more often.  Thus, for scholars and judges who complain about the third party doctrine, this may perhaps provide some solace–we still may not have the right to protect our information, but the companies we give it to are developing both the incentives and the legal ability to protect it for us.

The final aspect of the holding is one that flew a little bit under the radar, but that nevertheless is important.  The Patel Court assumed, without deciding, that a government search of the hotel’s registry qualified as a special needs search rather than a traditional law enforcement search.  The Court essentially said that there was no need to get into this question into more depth, because even under the lower “special needs” standard, the ordinance was unconstitutional, so it would clearly be unconstitutional under the more stringent law enforcement standard (which requires probable cause and–usually–a warrant).  But the very fact that the Court was willing to even make this assumption for argument’s sake is a bit troubling, and may presage yet another broadening of the already overbroad special needs definition.

Of course, the “special needs” justification has already been broadened way beyond the health and safety inspections of Camera and has been applied to searches which do little more than deter crime.  For example, as I discussed in an earlier article, almost every circuit court has held that the searches at airports are legitimate under the “special needs” doctrine, under the theory that they prevent terrorist action and thus protect public safety.  (The Supreme Court has yet to consider airport searches, but the Court has approved of them in dicta).   So already we have prevention of violent crime as a special need in order to keep society safe.  Likewise, the Supreme Court has approved of drunk driving checkpoints as a special need which keeps other motorists safe by preventing drivers from committing the crime of driving while intoxicated–which in a sense is per se reckless activity.

So we already apply the special needs search doctrine in order to prevent violent or reckless crimes–but at least those applications have some connection to protecting public safety.  Applying the special needs search doctrine to prevent drug use or prostitution in hotel rooms seems to be yet another step–a significant one–towards blurring the line between special needs searches and plain old fashioned law enforcement searches.  This was a line, for example, that the Court was unwilling to cross in Indianapolis v. Edmond.

To be fair, footnote 2 of Patel makes it clear that the Court is not making a decision one way or another on this particular issue.  So perhaps the Court simply wanted to make a broader point about the requirements for special needs searches and so decided to use Patel–even though in the end the search in question might not be an administrative search.  But this nuance may get lost as the months and the years go by, and many lawyers and judges will begin to think of Patel as the “administrative search case” and thus will think of the police accessing hotel records as a special needs administrative search.  Hopefully the Court can clarify this issue before that point.




This week the Court decided Rodriguez v. United States, and held in a 6-3 decision that the police cannot prolong a traffic stop even for a few minutes in order to conduct a drug dog sniff.  More broadly, the Court held that the duration of a traffic stop, like the duration of a Terry stop, must be “reasonable,” and thus may not be lengthened by police conduct which was beyond the “mission” of the traffic stop.

Drug Dog Car Sniff

In my preview of this case, I predicted that the Court would be forced to define what is “reasonable” by essentially legislating from the bench and listing precisely the actions that officers can and cannot do during a routine traffic stop.   I wrote that the Court would define “reasonableness” as “what we are used to seeing the police doing, rather than what is actually reasonable for the police to do.  Thus, in this case, well-established practice will create the constitutional rule, rather than (as it should be) the other way around.”

My prediction was mostly correct, but I give the Rodriguez Court credit for at least trying to create a principled distinction between what is “reasonable” during a traffic stop and what is not.   Specifically, the Court said that the police officer may take a reasonable amount of time to “address the traffic violation that warranted the stop;” to “attend to related safety concerns;” and to conduct “ordinary inquiries incident to [the traffic] stop.”  This last category is included to allow police to “ensure that vehicles on the road are operated safely and responsibly.”  In contrast, the police officer is not allowed to take any extra time to “detect evidence of ordinary criminal wrongdoing.”  The Court used these guidelines to conclude that it is impermissible to take extra time during a traffic stop to use a drug dog.

Unfortunately, the Court’s attempt at making a principled distinction falls short.  The Court helpfully provides a list of what falls under the “ordinary inquiries” category: checking the driver’s license, inspecting the automobile’s registration and proof of insurance, and determining whether there are outstanding warrants against the driver.  But as Justice Thomas points out in his dissent, this last action–checking for warrants–does not really ensure that the vehicle is operated safely and responsibly–it is, plain and simple, an investigation into whether the suspect has been involved in criminal activity.  As such, it seems indistinguishable from the drug dog sniff, at least under the paradigm provided by the Court.

Interestingly, Rodriguez appears to limit another common activity during a traffic stop–questioning the suspect in order to learn if the suspect is engaged in criminal activity and/or requesting to search the car.  The Court does note that the police may “conduct certain unrelated checks during an otherwise lawful traffic stop,” but it states that “[s]he may not do so in a way that prolongs the stop, absent . . . reasonable suspicion.”  Thus, Rodriguez seems to prohibit any investigatory questioning unrelated to the reason behind the stop which prolongs the length of the stop.  It will be interesting to see how lower courts interpret this aspect of the case–does this mean that if the police officer has completed the warrant check and the citation, she is not allowed to ask any further investigatory questions of the driver unless they are somehow related to the offense?  Or maybe lower courts will interpret Rodriguez even more strictly.  As Professor Rory Little notes at SCOTUSblog: “the Court says only that an officer ‘may conduct certain unrelated checks’ during a stop, without discussing what limitations ‘certain’ may imply.  The majority also says that ‘on-scene investigation into other crimes … detours from that mission’ of traffic safety.”  Lower courts will have to interpret this language to determine which questions are or are not permitted to lengthen a traffic stop.

Professor Little also discusses another “loose end” in the Rodriguez decision: he sees the case, when considered alongside the rejection of the front-door dog-sniff in Jardines, as evidence that the Court is backing away from its 1983 decision United States v. Place which stated that drug dog sniffs are not a Fourth Amendment search.  (This would also mean, presumably, that the Court is backing away from its affirmation of Place in the 2005 decision of  Illinois v. Caballes).  He calls Place “one of the more extreme extensions of the ‘reasonable expectation of privacy’ test,” and argues that its rationale is now suspect in light of Jardines, Riley v. California (which prohibited searching cell phones incident to a lawful arrest), and Kyllo v. United States (which prohibited warrantless thermal imaging of a home).   These cases, Little notes, are evidence that the Court has “recognized that privacy has some scope beyond ‘expectations’ that the real world may compel us to abandon,” and that the Court is coming to the realization that drug dogs are like any other investigative tool and should be treated as such.

I am not so sure about this conclusion.  The Court’s rationale that drug dog sniffs do not constitute a Fourth Amendment search is based on a very specific doctrine–the binary search doctrine–and nothing in Kyllo, Jardines, or Riley affects that doctrine in any way.  The binary search doctrine states that government surveillance is not a Fourth Amendment search if it is only able to reveal the absence or presence of illegal activity.  The doctrine is based on the theory (first discussed in Rakas v. Illinois) that the Fourth Amendment only protects legitimate expectations of privacy.  In contrast, the Court’s recent limitations on the use of drug dogs have been based on other doctrines.  In Jardines, the limitation was based on the new  “trespass” Fourth Amendment test found in Jones; and in Rodriguez, the limitation was based on the doctrine that although a drug dog sniff is not a Fourth Amendment search, it is a Fourth Amendment seizure.  All that Rodriguez stands for is that the seizure aspect of the drug dog sniff needs to be justified by reasonable suspicion, and that any unreasonable delay that prolongs a seizure in order to conduct a drug dog sniff is unconstitutional–which is exactly what the Court held in Place thirty-two years ago.

NOTE:  Other commentators have also reacted to this case:  Orin Kerr has stated that he believes the case is correctly decided and that the Court was wise to adopt the “safety-based rationale” for traffic stops, while Steven Schwinn discussed the case on the Constitutional Law Prof Blog.

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.


In what may be the most significant Fourth Amendment case this year, the Supreme Court recently heard arguments in Rodriguez v. United States, which raises the question of how long (if at all) a police officer can delay a traffic stop to conduct further criminal investigations.  In the Rodriguez case, Officer Struble pulled defendant Rodriguez over at 12:06 AM for veering onto the shoulder of the road.  Struble was a K-9 officer, and he had his partner Floyd with him in the police car. Officer Struble conducted a routine check of Rodriguez’s license and other papers, asked a few questions, and issued a written warning at about 12:27.  Struble then asked whether Rodriguez would consent to the drug dog sniffing the car, and the Rodriguez refused.  Officer Struble, correctly concluding that he was allowed to conduct a drug dog sniff even without consent, decided to go ahead and deploy Floyd over Rodriguez’s objections.  However, since Rodriguez had a passenger in his car, Struble decided that it would be too dangerous to conduct the dog sniff without backup, so he ordered Rodriguez out of the car and made him wait until a second officer arrived on the scene.  Approximately six or seven minutes later,  a second officer arrived, and Officer Struble and Floyd walked around Rodruiguez’s car.  Floyd alerted in under a minute, providing probable cause to search, and the police ultimately recovered a large bag of methamphetamine.

traffic stop drug-dog

The question before the Court in its narrowest formulation is whether Officer Struble was permitted to require Rodriguez to wait for the backup to arrive.  The broader question is usually phrased as whether (and for how long) police officers can prolong a traffic stop after it is completed in order to conduct a further investigation.  But a more realistic way of setting out the question is really: “What is a ‘reasonable length of time’ for a traffic stop?”  In other words, the Court can either analyze this case as either:

a twenty-one minute traffic stop that included a license check and routine questioning, which was completed, after which there was a seven minute delay for a drug dog sniff, or

a twenty-eight minute traffic stop that included a license check, routine questioning, and a drug dog sniff.

If the Court adopts the first analysis, there are only two arguments that the police action was constitutional, and neither of them are very convincing.  The first argument is that Officer Struble had reasonable suspicion to seize Rodriguez for those seven minutes as part of a Terry stop.   But even under the low standards of reasonable suspicion, there is not much evidence that Officer Struble had specific and articulable facts that criminal activity was afoot–and at any rate this issue was not briefed for the Court.  The second argument, which was the one adopted by the Eighth Circuit, was that the extra seven minutes was a de minimis intrusion and thus the delay was reasonable.  The Eighth Circuit cited a number of cases which have approved of a delay of two to four minutes, and so it concluded that the traffic stop in this case was not “unreasonably prolonged.”  Ginger Anders, the Assistant to the Solicitor General who argued the government’s case, also took this position.  However, the Justices were not very amenable to this line of reasoning during oral argument, and they pointed out that it would allow the police officer to do any number of things after the traffic stop was over, as long as they did not “unreasonably prolong” the stop.  For example, a police officer could question a motorist for an extra seven or eight minutes about potential criminal activity.  Justice Kagan showed her displeasure at this idea:

But then you really are saying because we have a reason to pull you over for a traffic stop, that gives us some extra time to start questioning you about other law enforcement related things and to do other law enforcement related business. And I never thought that that was the rule. I always thought is that once the objective basis . . . for the stop dissipated, that was it.

The other problem with the “reasonable delay” argument is that it results in rather arbitrary line-drawing about how long a traffic stop should take.  And once those lines are drawn, police officers will have free reign to do whatever they think is useful (as long as it is not a “Fourth Amendment search”) within the time frame.  Again, Justice Kagan summarized the problem:

But . . . where your rule is going to lead to, Ms. Anders, is something along the lines of . . . everybody will decide 30 minutes or 40 minutes, I think you say at one point in your brief, is reasonable for a traffic stop. And if you see a taillight violation, that’s 40 minutes of free time for the police officers to investigate any crimes that they want, because they can do it all in the range of what you’ve decided is kind of the reasonable traffic stop.

The second analysis–that the drug dog sniff could be thought of as a reasonable part of a routine traffic stop–is more interesting, and it received a fair amount of attention from the Justices in the oral argument.  During his argument, defense attorney Shannon O’Connor  struggled to define the point at which a traffic stop was completed.  After some confusion on the issue, he wisely rejected a formalist, brightline test (e.g., the traffic stop is over when the police officer formally hands a ticket to the motorist).  Instead, he argued that a traffic stop can take no more time than is reasonably necessary to conclude the “mission” of the traffic stop.  But that merely begs the question: what is the “mission” of a traffic stop?  Currently, police officers routinely check a motorist’s license, registration, and proof of insurance; they take time to run the plates of the car to see if it has been stolen; and they ask the motorist questions about where they are going and why.  None of these actions have any particular relationship to the initial reason for the traffic stop–in this case, the fact that the motorist swerved onto the shoulder.  So if these non-related actions are allowed, why not also a dog sniff?  O’Connor even conceded that if the police officer who initially pulled over the motorist feels like she needs backup in order to safely interact with the motorist, it is constitutional to force the motorist to wait for up to thirty minutes before the backup arrives.  And yet, after the backup arrives, and while the original officer is writing out the ticket, the backup cannot go ahead and conduct a dog sniff of the car–even though the dog sniff itself is not a search?   Rory Little at SCOTUSblog thought that it was “clear” after the oral argument that drug dog sniffs are “extraneous” to the mission of a traffic stop, but some of the questioning from the Justices seemed to leave open the possibility that a drug dog sniff could be a reasonable part of a routine traffic stop.  Thus, the Court could resolve this case by merely saying that drug dog sniffs are (or are not) part of the mission of a stop.  If they are not, any extra delay in order to conduct a drug dog sniff is an unconstitutional seizure.  If they are, then the police are allowed to delay the stop to conduct a drug dog sniff, as long as the police are diligent in conducting that search.  But this only raises more questions: what else is part of the mission of the stop?  In particular, is extensive questioning part of the mission?  If so, how much questioning?

In resolving this problem, Professor Orin Kerr argues that traffic stops should be classified into two categories.  The most common category is comprised of stops which are the result of a mere traffic violation (as in Rodriguez).  For these stops, the mission is “to find and evaluate safety concerns”–so the officer can only do what is necessary to ensure the safety of other motorists, and she cannot conduct any criminal investigation (such as asking questions about criminal activity, asking consent to search the car, or using a drug dog) if that conduct prolongs the stop.  The second category is when the officer has reasonable suspicion to believe that a crime has been committed–in which case the mission of the stop expands to criminal investigation.

Although this is an elegant solution, there is no case law that supports this distinction, and it adds yet another layer of complexity to an already extremely complex area of law. We would have two different types of car stops, with different rules (and two separate sets of jurisprudence) for each.  Furthermore, the distinction between a “traffic code violation” and a “criminal law violation” would be hard to apply in practice.  Many mere traffic violations could give rise to reasonable suspicion that the motorist is intoxicated–which would transform a traffic code violation into a criminal law violation.  And even in pure traffic code stops, police would have a strong incentive to try to gather information to transform the traffic code stop into a criminal law violation stop, leading to an infinite variety of fact-based puzzles as to when a stop was “transformed” and whether a police officer delayed the original traffic code stop in an attempt to bump it up to a criminal law stop.

In the end, it will be hard for the Court to resolve this case without de facto legislating from the bench by telling police officers exactly what they can and can’t do during a routine traffic stop.  The Justices will no doubt have to base this list of permissible actions on what they say is “reasonable,” but in fact they will probably conclude that what is “reasonable” is simply what the police have traditionally done during traffic stops–checking documents, running plates, and asking routine questions.  There is no particular argument that these actions are “reasonable” compared to, say, a drug dog sniff or a prolonged inspection of the outside of the car, or running a warrant check on all the passengers in the car, or any number of other things that police might want to do.

But “reasonableness” here is a term of art to mean (as it often does in the Fourth Amendment context) what we are used to seeing the police doing, rather than what is actually reasonable for the police to do.  Thus, in this case, well-established practice will create the constitutional rule, rather than (as it should be) the other way around.

City of Los Angeles v. Patel involves a couple of technical but important issues about the scope of Fourth Amendment protections in the context of administrative searches.  Los Angeles has passed an ordinance which requires all hotel operators to keep records of all of their guests, and to make those records available for inspection by any member of the Los Angeles Police Department.  A hotel operator who fails to comply with this regulation faces up to six months in jail and a $1,000 fine.  The Patel family, who run a hotel in Los Angeles, brought a facial challenge to the statute under Section 1983, arguing that the statute violated the Fourth Amendment.

hotel records

In a split en banc decision, the Ninth Circuit held that the government was indeed conducting a Fourth Amendment search when it looked through the hotel’s records, and that the search should be analyzed as an “administrative search.”  The court then held that even under the low standards of administrative searches, the Los Angeles ordinance that authorized these searches was facially invalid because it did not provide the hotel operators an opportunity to challenge the reasonableness of the search request in court before penalties were assessed.

The Supreme Court granted cert on two questions:

First, whether it is ever appropriate to bring a facial challenge based on the Fourth Amendment to an ordinance or a statute; and

Second, whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry,

and if so, whether the ordinance is facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry.

First we should discuss what is not at stake in Patel: the Supreme Court will not (and should not) use this case to re-visit the third-party doctrine.  Some commentators have argued (here and here) that this might be a chance for the Court to reform dismantle or reform this much-maligned doctrine.  After all, most individuals would believe that the true victims of the invasion of privacy are the hotel guests, not the hotel itself.

As much as this argument has intuitive appeal, Patel appears to be a very weak case for a re-examination of the third-party doctrine.  Most of the modern critiques of the third-party doctrine have to do with the “passive” sort of sharing that is the inevitable consequence of using modern technology, such as disclosing the content of your e-mail to your internet service provider or your location to your cell phone company.   This  sort of “disclosure” to third parties could never have been imagined by the Court that authored Smith v. Maryland; thus, the argument goes, Smith should not apply to this type of third-party disclosure.  Other critiques of the third party doctrine revolve around the potential abuse of meta-data: using an algorithm to sift through all the phone numbers that a suspect calls over a multi-year period, or using a computer program to review the recipients of all of your e-mails.  Again, this kind of mass processing of meta-data is arguably beyond the scope of the humble pen register used in Smith.

But the third-party disclosure in Patel bears a much stronger resemblance to the phone numbers dialed in Smith than to the passive sharing of data that is inherent in the use of new technologies.  In fact, the disclosure in Patel is more like the sharing of bank records in Smith‘s less controversial precursor, Miller v. United StatesThere is no question that the guests in Patel knew they were giving information to a third party, and no particular reason why they would think that the government would be unable to access that information.

The two issues that the Patel case does involve are important enough, however.  The first question is purely procedural: whether a party can bring a facial challenge to a statute under the Fourth Amendment.  The dissenters in the Ninth Circuit argued that a statute should survive a facial challenge as long as “a court can find any circumstance in which it could constitutionally be applied.”  Thus, in order to succeed in their facial challenge, the Patels must prove that “all requests made under the ordinance must violate the Fourth Amendment.”  But, as the dissent pointed out, if the police demanded the records after having obtained a warrant, or pursuant to exigent circumstances, or pursuant to the community caretaking function, the demand  would obviously not violate the Fourth Amendment.  Thus, there is a strong preference for as-applied challenges, since they are the “basic building blocks of constitutional adjudication.”

The question asked by the Supreme Court goes beyond this argument, however, and asks whether there can ever be a Fourth Amendment facial challenge.  It would be logical for the Court to answer this question in the negative and prohibit all such facial challenges, since (as the Ninth Circuit dissent pointed out), courts would otherwise be called upon to give advisory opinions by trying to imagine all possible hypothetical cases in which a law might be applied.

If the Court does indeed prohibit facial challenges, it need not reach the second question, since the Patels did not allege any actual actions by the police which violated their Fourth Amendment rights.  If the Court allows these challenges, however, it should have no problem concluding that a demand for information pursuant to the ordinance constitutes a “search” under the Fourth Amendment.   The Patels (and other hotel operators) clearly have a reasonable expectation of privacy in this information; even the dissenters in the Ninth Circuit agreed that this was true.   The real issue in the second question is its second part, in which the Court must decide whether a demand for this information is a reasonable exercise of police power.  The Court’s answer should provide useful guidance regarding the underdeveloped administrative search doctrine, in two ways.

First, the purpose of these searches of hotel registries (according to the government) is to deter drug dealing and prostitution, which sounds much more like a law enforcement purpose than the regulatory purposes usually associated with administrative searches.  Administrative searches, like other special needs searches, are supposed to have a non-law enforcement purpose, although the Court has applied the administrative search doctrine to searches which have a distinctively crime-control flavor to them.   If the Court upholds this law, it will be taking another unwelcome step towards broadening the allowable purpose of administrative searches.

Second, if the Court does hold that this is a permissible purpose for administrative searches, it will need to decide what procedure is necessary to ensure that the search is “reasonable.”   The majority opinion in the Ninth Circuit stated that a demand to inspect should not be “made and enforced by the inspector in the field”–rather, the ordinance must allow for judicial review of the demand for records before any punishment can be imposed.  If not, the majority argued that there would be no way of ensuring that the demand is “sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.”   The Supreme Court will probably agree with the Ninth Circuit and require some kind of judicial review of these searches.  The sheer breadth of the authorization allowed by the ordinance seems to invite law enforcement abuses, and the narrowness of the administrative search doctrine’s purpose would be gutted even further if there is no judicial oversight of the police action.

But my prediction is that the Court will not even reach the second question.  Instead, it will deny the facial challenge and tell plaintiffs who wish to attack statutes on Fourth Amendment grounds that they must wait until the government takes some specific action against them before taking the police to court.


In Maryland v. King, the Supreme Court allowed states to collect DNA samples from anyone arrested for “serious felonies.”  Writing in dissent, Justice Scalia scoffed at the limitation that the majority claimed to put on this principle:

The Court repeatedly says that DNA testing, and entry into a national DNA registry, will not befall thee and me, dear reader, but only those arrested for “serious offense[s].”  … I cannot imagine what principle could possibly justify this limitation, and the Court does not attempt to suggest any.   If one believes that DNA will “identify” someone arrested for assault, he must believe that it will “identify” someone arrested for a traffic offense. This Court does not base its judgments on senseless distinctions. At the end of the
day, logic will out. When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, “We can find no significant difference between this case and King.” Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason. 

In a forthcoming article in Recent Advances in DNA & Gene Sequences, Professor Elizabeth Joh of U.C. Davis picks up where Justice Scalia left off and discusses the possibility of extending the King doctrine to all arrestees, whatever the offense may be.   The article  is mostly a cautionary tale; a warning to policymakers not to eagerly adopt this seemingly inevitable next step.  She cites four concerns about such an extension: (1) it has technically not been authorized by the King decision; (2) it would give police officers too much discretion in deciding who became part of the growing DNA database; (3) expungement is not a practical option for those whose DNA is collected; and (4) the crime-control benefits of such an extension would be less than most people believe.

Of all of these concerns, only the second one actually discusses the negative consequences of DNA testing for misdemeanor arrestees.  And Professor Joh makes a compelling argument here, pointing out that police discretion to arrest for misdemeanors is far greater than their discretion to arrest for felonies.  Because of a variety of factors, the police already exercise this discretion to arrest in a way that results in the detention of a disproportionately large number of racial minorities and poor people.   As Professor Joh points out:

What all of this means is that one’s chances of being included in DNA database based on an arrest for a minor crime may depend on seemingly arbitrary factors like one’s neighborhood, race, attitude, or just plain bad luck. And given the existing disproportionate representation of minorities in the criminal justice system, that discretion would likely translate into databases that are even more racially imbalanced than they are now.

The title of Professor Joh’s article asks an important question: Should Arrestee DNA Databases Extend to Misdemeanors?  A policymaker trying to reach an informed and thoughtful answer to that question would have to take into consideration all of the potential crime-control benefits of such a step (something which Professor Joh’s article briefly discusses but does not delve into detail about).  But the policymaker would also have to come to terms with the undeniable truth that Professor Joh presents in this concise paper–that such a step would exacerbate the already troubling disparities in our criminal justice system.

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.