Supreme Court Cases
By Kevin Chechak, J.D.
During the current term, the Supreme Court decided cases of importance to law enforcement, including those involving procedure, substantive law, and law enforcement liability. In one case with immediate consequences, the court ruled that attaching a global positioning system (GPS) device on the undercarriage of a car constituted a Fourth Amendment search. The court elaborated further on the role of Miranda in interviews occurring in a prison setting, as well as the government’s duty to produce potentially exculpatory evidence under Brady. In a civil suit against law enforcement officers, the court addressed the proper role of qualified immunity and whether the law was clearly defined at the time the government acted. Also, the court struck down a substantive criminal statute as being violative of the First Amendment.
This article provides a brief synopsis of each of these cases, as well as a summary of cases of interest to law enforcement that the Supreme Court has agreed to hear in the 2012-2013 term. As always, law enforcement agencies must ensure that their own state laws and constitutions have not provided greater protections than the U.S. constitutional standards.
United States v. Jones,
132 S. Ct. 945 (2012)
In this case the U.S. Supreme Court revived the doctrine that a physical intrusion by the government into a constitutionally protected area for the purpose of gathering information is a Fourth Amendment search, a principle most courts had considered subsumed by the reasonable expectation of privacy standard. As part of a drug conspiracy investigation, officers obtained a warrant from the U.S. District Court for the District of Columbia to install a tracking device on a vehicle used by Jones but registered to his wife. The tracking device was to be placed on the vehicle within 10 days. Eleven days after the court order was issued, officers placed the GPS device on the vehicle while it was in Maryland.1 The device provided officers with 2,000 pages of location data over the next four weeks. Jones’ motion to suppress the GPS information was denied; he was convicted and then appealed. The court of appeals reversed the conviction, finding the warrantless use of the GPS device in violation of the Fourth Amendment.2 The appellate court held that the use of the GPS device was a search where Jones had a reasonable expectation of privacy in his movements over an extended period of time.3
The U.S. Supreme Court unanimously agreed that the use of the GPS was a search under the Fourth Amendment, but filed separate opinions with divergent reasons in support of that conclusion. The majority opinion written by Justice Scalia relied on an originalist interpretation finding the vehicle to be an “effect” within the meaning of the Fourth Amendment and the attachment of the GPS device to a vehicle by government agents to gather information to be a trespass and, therefore, a search within the meaning of the Fourth Amendment. “The government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”4 The opinion expresses that the original theory of governmental trespass as a basis for a Fourth Amendment violation had not been replaced by the theory of “reasonable expectation of privacy” developed in United States v. Katz.5 In Katz the court found that the government had violated the Fourth Amendment by placing without a warrant a covert microphone on a public phone booth to overhear a suspect’s telephone conversation. Katz and cases following it expanded the protection of the Fourth Amendment beyond “persons, houses, papers and effects” (as expressly listed in the Fourth Amendment) and held that the amendment protected people and their reasonable expectation of privacy in less concrete matters, like conversations, telephone calls, and e-mails.
Special Agent Chechak is a legal instructor at the FBI Academy
Prior to Jones several federal circuit court decisions held that people had no reasonable expectation of privacy in the movement of their vehicles on public streets because those actions are readily observable by anyone—including the government—and, therefore, use of a GPS device to monitor a vehicle’s movement on public streets did not violate any reasonable expectation of privacy.6 In each of those cases, the courts held that the act of the physical installation itself of a slap-on or magnetic GPS device on the vehicle did not independently constitute a search under the Fourth Amendment. Jones overrules such decisions when placing a tracking device on the vehicle requires a physical touching of the vehicle with the intention of gathering information. The court did not overrule prior decisions where the tracking device already was in place before the subject took possession of the object to be tracked because there was no trespass.7 In addition, the decision leaves open the question of the constitutionality of electronic tracking, which is feasible by nonphysical means, such as monitoring a subject’s movements through GPS signals emitted by a subject’s cellular telephone.8
Justice Sotomayor joined with the majority opinion in holding that here the physical trespass on a constitutionally protected “effect” (the vehicle) constituted a Fourth Amendment search, but filed a concurring opinion agreeing with Justice Alito’s concurrence that long-term GPS monitoring would infringe on an individual’s reasonable expectation of privacy. Justice Sotomayor also expressed that in other cases not involving physical intrusion, the Katz approach should be applied given concern regarding data aggregation and government accumulation of information. Justice Sotomayor stated, “More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”9
Justice Alito filed a concurrence in the result, joined by three other justices, but believed the case should be decided by applying the Katz reasonable expectation of privacy analysis. Alito reasoned that the long-term monitoring of the movement of Jones’ vehicle violated his reasonable expectation of privacy. Alito’s opinion indicates the reasonable expectation of privacy analysis would encompass all types of surveillance, including old fashioned physical surveillance with cars and aircraft, as well as tracking, which could be achieved remotely as opposed to the need to physically intrude into a protected area. It also indicates the expectation that how long citizens can be followed would differ based on the offense being investigated. While not setting down a matrix of what time limits would be allowable, Justice Alito indicated that 28 days was too long in this drug investigation.
This case was decided based on simple trespass analysis. However, five justices signaled readiness to expand the protections of the Fourth Amendment in future cases to limit government collection and aggregation of publicly available information where such efforts may violate the public’s reasonable expectation of privacy.
Howes v. Fields,
132 S. Ct. 1181 (2012)
Defendant Fields was serving a sentence in a Michigan jail where he was questioned by sheriff’s deputies about alleged child sex abuse unrelated to the crimes for which he was incarcerated. Fields was brought from the general population into a separate section of the facility and put in a conference room with the deputies. The deputies did not read Fields his Miranda rights, but did advise him at the beginning and at several other times during the five- to seven-hour interview that he was free to leave at any time and return to his cell. Fields was not handcuffed or restrained, and the door to the room sometimes was open and sometimes closed. At no point did Fields indicate that he wanted to return to his cell. He eventually confessed, and at the conclusion of the interview, he had to wait 20 minutes while a guard was called to return him to his cell.
The Sixth Circuit Court of Appeals applied a categorical rule in concluding that his statements should be suppressed, holding that a prisoner always is in custody for Miranda purposes when pulled from the prison population and questioned about criminal conduct.10 The Supreme Court rejected this categorical rule, concluding that incarceration in and of itself is not “custody” for purposes of the Miranda warnings. Miranda custody requires analysis of whether based on the objective circumstances a person would feel free to terminate the interview and leave and whether the limitations on movement present a coercive environment. The court noted three factors of confinement that normally contribute to a coercive environment, but do not apply to a person serving a jail or prison sentence. An incarcerated individual, as opposed to someone just arrested, is not experiencing any “shock” of custody. In addition, incarcerated individuals (as opposed to those awaiting trial) are unlikely to be lured into speaking by hope for a quick release. They also know that the questioning officers cannot affect the length of their confinement. Applying these factors to the facts in the present case, the court held that Fields was not in custody for purposes of Miranda. As stated by the Supreme Court, “Taking into account all of the circumstances of the questioning—including especially the undisputed fact that respondent was told he was free to end the questioning and return to his cell—we hold that respondent was not in custody within the meaning of Miranda.”11
Smith v. Cain,
132 S. Ct. 627 (2012)
In Smith the court ordered a new trial after concluding that the government violated Brady v. Maryland by failing to disclose potentially exculpatory material to the defense.12 In 1992 Larry Boatner was the victim of a home invasion robbery during which five of his friends were killed. Boatner was the only survivor in a position to see the perpetrators. Juan Smith eventually was charged in the crime and prosecuted. The principle evidence against Smith was testimony by Boatner identifying him as one of the assailants. Notes of the lead detective responding to the scene indicated that Boatner stated shortly after the crime that he could not identify any of the murderers, and his report of a reinterview of Boatner five days later indicated the same. These notes made by the detective were not produced to the defense before trial. Based on this omission, the court found a Brady violation, reiterating that Brady established a due process violation where evidence withheld is material to a determination of the defendant’s guilt. Evidence is material where there is a reasonable probability that the result of the proceeding would have been different if it was produced. A defendant need only show that the likelihood of a different result is great enough to undermine confidence in the outcome of the trial.13 Here Boatner testified at trial that he had “no doubt” Smith was the gunman he stood “face to face” with the night of the murders, and Boatner’s testimony was the only evidence linking Smith to the crime. The court found Boatner’s contradictory statements that he could not identify anyone plainly material.14
Messerschmidt v. Millender,
132 S. Ct. 1235 (2012)
This case is a civil action under Title 42, Section 1983, U.S. Code for damages against officers, including Detective Kurt Messerschmidt, alleging violation of Millender’s Fourth Amendment rights by an improper search and seizure. Shelly Kelly was moving out from the residence she shared with her boyfriend Jerry Bowen when he attacked her and shot at her with a black sawed-off pistol-grip shotgun as she drove away, striking her car. Detective Messerschmidt researched Bowen, found gang affiliations, and prepared affidavits for a search warrant at the home of Augusta Millender, Bowen’s foster mother, where he was believed to be staying. The warrant sought any and all weapons or ammunition, indicia of gang affiliation, and articles showing who controlled the premises. The warrant was executed while Augusta Millender was home, resulting in the seizure of Millender’s shotgun, a social services letter addressed to Bowen, and a box of .45-caliber ammunition. Millender subsequently filed a civil action alleging that the search violated her Fourth Amendment rights. The officers sought to dismiss the lawsuit on the basis of qualified immunity. The district court and an en banc Ninth Circuit Court of Appeals denied the officers’ claim of qualified immunity, concluding that no reasonable officer would have relied on the warrant because it was facially overbroad where it sought all firearms, ammunition and related articles, and a wide variety of gang-related materials where the crime had no relation to gang activity.15
The Supreme Court reversed, granting the officers qualified immunity. The court reiterated that officers are entitled to qualified immunity unless their actions violated clearly established statutory or constitutional rights using objective legal reasonableness to evaluate the legal rules established at the time of the conduct. The court agreed with the principle articulated by the Ninth Circuit that while a warrant may be signed by a neutral magistrate, thus establishing a strong indication of objective reasonableness of the officers’ behavior, the shield of immunity conferred by the warrant may be lost where the underlying affidavit is so lacking in indicia of probable cause as to render belief in its existence unreasonable.16 Given the facts and logical inferences that could be drawn in this case, the court concluded that the warrant met the objective reasonableness test. The court reasoned that an officer could infer that Bowen might have additional weapons and pose a continuing threat with them and that his gang affiliation could bear both on his motive and credibility. Noting the number of supervisors and other officials who reviewed the affidavits, the court stated that the officers were not required to parse through and make a precise probable cause determination by comparing the facts in the affidavit with the items listed in the warrant application.17 Finding that the warrant application was not so obviously lacking in probable cause such that the officers could be considered plainly incompetent for concluding otherwise, the court ruled they were entitled to qualified immunity.
United States v. Alvarez,
132 S. Ct. 2537 (2012)
Defendant Alvarez had made verbal false statements claiming to be a recipient of the Congressional Medal of Honor. He was charged under Title 18, Section 704, U.S. Code, which makes it a crime to falsely represent verbally or in writing to have been awarded any decoration or medal authorized by Congress for the U.S. Armed Forces. Four justices joined the majority opinion, and two justices joined in a concurring opinion with the plurality decision finding that the statute did not meet the “exacting scrutiny” applied to content-based speech restrictions.18 The court held that the statute did not fit within any of the three recognized exceptions to the First Amendment for false statements and distinguished it from cases, such as fraud and defamation, where legally cognizable harm resulted from the falsehood.19 While all nine justices acknowledged the importance of properly recognizing the heroism and sacrifice of service members, the plurality found that the government did not establish that a new exception to the First Amendment was merited where less restrictive means were available to control the false speech. Effective means to limit the effect of the false speech included counterspeech and resulting public ridicule and establishing a publicly accessible database of actual medal recipients.
Cases of Interest for 2012-2013
Florida v. Harris, case below Harris v. Florida, 71 So.3d 756 (Fla. 2011), cert. granted, 132 S. Ct. 1796 (2012)
This case asks what facts, if any, must be presented by the government to establish the reliability of a drug dog’s alert beyond the dog’s basic training and certification. The Florida Supreme Court held in a case involving the warrantless search of a vehicle after a dog alerted positive to the presence of narcotics to establish probable cause to support a search; relying on the training and certification of the dog alone is not sufficient.20
Florida v. Jardines, case below Jardines v. Florida, 73 So.3d 34 (Fla. 2011), cert. granted, 132 S. Ct. 995 (2012)
In another Florida drug dog case, the court has agreed to consider whether the use of a drug detection dog at the front door of a premises is a search within the meaning of the Fourth Amendment and if so whether probable cause is required. The Florida Supreme Court decided that it was a search and that an evidentiary showing of wrongdoing establishing probable cause (not reasonable suspicion) was required before such a search could take place.21
Bailey v. United States, case below United States v. Bailey, 652 F.3d 197 (2nd Cir. 2011), cert. granted, 132 S. Ct. 2710 (2012)
The court will determine whether during the execution of a search warrant targeting premises officers may detain occupants of those premises who have left the location during or immediately before the warrant was executed. Evidence obtained during the detention was admitted at trial over objections that the detention violated Bailey’s Fourth Amendment rights.22 In Michigan v. Summers the Court construed the Fourth Amendment to allow officers executing a search warrant targeting premises to detain an occupant of those premises when they encountered him leaving the location while they were preparing to execute the warrant.23 In Bailey, officers were preparing to execute a search warrant when they observed Bailey and a friend leave the target residence. Other officers followed them for about a mile, pulled the vehicle over, and detained them. The subjects made incriminating statements during the detention encounter indicating that the search location was Bailey’s residence, and keys were taken from Bailey that matched the residence being searched. During the detention, officers at the premises began execution of the search warrant and found a gun and drugs. Bailey sought to suppress the evidence derived from the detention, claiming it was an unreasonable seizure under the Fourth Amendment and not justified as part of the execution of the search warrant. The Second Circuit Court of Appeals concluded that the detention was reasonable under the Fourth Amendment.24 The Supreme Court has agreed to hear this case in light of the conflict that exists at the federal circuit court level.25
Vance v. Ball State University, case below Vance v. Ball State University, 646 F.3d 461 (7th Cir. 2011), cert. granted, __ S. Ct. __ (2012)
This is a case of interest to law enforcement managers. The Court will decide whether for purposes of establishing vicarious liability under the Farragher-Burlington Industries standard a supervisor is limited to those who have the power to take a final employment action, such as to fire, demote, transfer, or discipline, or can include any person who can direct and oversee the victim’s daily work.26
Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisers. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.
1 As noted by the court at footnote 1, the government conceded noncompliance with the warrant and argued that it did not need a warrant. United States v. Jones, 132 S. Ct. 945, 948 (2012).
2 United States v. Maynard, 615 F.3d 544 Cir. (D.C. 2010).
3 The government did not argue below that if using the GPS was a search that it was, nevertheless, “reasonable” under the Fourth Amendment, and both the appellate and Supreme Court held that this argument had been waived. See Maynard, 615 F.3d at 567; and Jones, 132 S. Ct. at 954.
4 See Jones, 132 S. Ct. at 949.
5 Katz v. United States, 389 U.S. 347 (1967).
6 United States v. Garcia, 474 F.3d 994 (7th Cir. 2007); United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010); and United States v. Marquez, 605 F.3d 604 (8th Cir. 2010).
7 Jones at 951-952.
8 For example, in United States v. Skinner, No. 09-6497, 2012 WL 3289801 (6th Cir. Aug. 14, 2012), a post-Jones case, the defendant was trafficking marijuana from Arizona to Tennessee and using a pay-as-you-go cell phone to coordinate with other co-conspirators. DEA agents identified the defendant’s cell phone and “pinged” the phone to obtain GPS data from it and to locate and arrest the defendant. The court held that there was no Fourth Amendment violation because the defendant had no reasonable expectation of privacy in his publicly visible location traveling on a highway and no expectation of privacy in the information emitting from the phone he chose to use. The court noted that, unlike Jones, no device had been attached to the defendant’s vehicle.
9 See Jones, 132 S. Ct. at 957.
10 Fields v. Howes, 617 F.3d 813 (6th Cir. 2010).
11 Howes v. Fields, 132 S. Ct. 1181, 1194 (2012).
12 Brady v. Maryland, 373 U.S. 83 (1963).
13 Smith v. Cain, 132 S. Ct. 627, 630 (2012).
14 Id. at 630.
15 Millender v. County of Los Angeles, 620 F.3d 1016 (9th Cir. 2010).
16 Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012).
17 Id. at 1250.
18 United States v. Alvarez, 132 S. Ct. 2537, 2543 (2012).
19 Those exceptions are prohibition of false statements to a government official, perjury, and falsely claiming to be speaking as a government official or on behalf of the government. Id. at 2545-2546; and Id. at 2545.
20 Harris v. Florida, 71 So.3d 756 (Fla. 2011).
21 Jardines v. Florida, 73 So.3d 34 (Fla. 2011).
22 United States v. Bailey, 652 F.3d 197 (2nd Cin. 2011).
23 Michigan v. Summers, 452 U.S. 692 (1981).
24 See Bailey, 652 F.3d 197, 206-207.
25 See United States v. Cochran, 939 F.2d 337 (6th Cir. 1991); United States v. Cavazos, 288 F.3d 706 (5th Cir. 2002); United States v. Bullock, 632 F.3d 1004 (7th Cir. 2011) (extending Summers to include occupants detained a short distance from the search location); United States v. Sherill, 27 F.3d 344 (8th Cir. 1994); and United States v. Edwards, 103 F.3d 90 (10th Cir. 1996) (refusing to extend Summers to detentions of occupants away from the search location).
26 Farragher v. City of Boca Raton, 524 U.S. 775 (1998); and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) [Establishing liability for the harassment caused by supervisors and managers, but permitting employers to assert an affirmative defense demonstrating that they had adequate corrective and preventive policies in place that the victim-employee failed to take advantage of in cases where the harassment did not lead to a tangible employment action].