Supreme Court Cases: 2012 to 2013 Term
By Kevin Chechak, J.D.
During the 2012 to 2013 term, the Supreme Court decided a number of cases of interest to the law enforcement community, including several involving the Fourth Amendment. These are highlighted by a pair of canine search cases out of Florida, a DUI compelled blood test case, and a case questioning the collection of DNA from arrestees. The Court also decided a case regarding application of the Fifth Amendment in noncustodial interrogations and a vicarious liability case of interest to law enforcement agencies in their roles as employers.
This article provides a brief synopsis of each of these cases and also a summary of cases of interest to law enforcement that the Supreme Court has agreed to hear in the 2013 to 2014 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.
Florida v. Jardines,
133 S.Ct. 1409 (2013)
The question presented in this case was whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog was a Fourth Amendment search requiring probable cause. A divided Court held that a search did occur when the officer took his dog onto the front porch of the suspected grow house for the purpose of sniffing for drugs. Justice Scalia, writing for the majority, applied the same reasoning he used in the United States v. Jones1 decision last term, which found a government intrusion into private property for the purpose of gathering information was a trespass and a search under the Fourth Amendment. In Jones the trespass in question was the attachment of a GPS tracker to a defendant’s automobile.
The trespass issue in the Jardines case centered on whether government agents could enter onto the front porch of the home, which, as part of the curtilage of the residence, was entitled to Fourth Amendment protection, in contrast to open fields, which are not protected under the Fourth Amendment.2 The government argued the defendant had no reasonable expectation of privacy under Katz v. United States3 in the odors emanating from his home and no reasonable expectation of privacy that police officers or their dogs would not go on his porch to smell those odors.
Special Agent Chechak is a legal instructor at the FBI Academy.
The Court found an implied license normally exists which allows persons, such as visitors, girl scouts selling cookies, or trick-or-treaters, to approach your door. This kind of implied license also might allow a police officer to approach someone’s front door to knock and ask to speak to the individual, but it is not reasonable to think typical people would confer an implied license to allow police to enter upon their curtilage for the purpose of having a drug dog sniff around.4 The Court further elaborated that people would not expect someone approaching their front door to use a metal detector along the front path or to allow a bloodhound into their garden without first asking permission.5 As in Jones, the majority opinion relied on traditional trespass analysis to reach the conclusion that there was a Fourth Amendment search where the government intruded into a constitutionally protected area to seek information.6
Florida v. Harris,
133 S.Ct. 1050 (2013)
In another drug detection dog related case from Florida, the U.S. Supreme Court reversed the Florida Supreme Court, which had used a strict checklist of evidence to evaluate the reliability of a drug dog’s alert as a basis for probable cause to search. This checklist included the dog’s training and certification records, evidence concerning the experience and training of the officer handling the dog, and a particular emphasis on field records of the dog’s performance, including how many times the dog alerted, but no contraband was subsequently found.7 The Court held probable cause should be determined based on the totality of the circumstances, not an inflexible checklist.8
The defendant also wanted to use field records of the dog’s performance and false positives where the dog alerted, but no drugs were found, to challenge the dog’s reliability as a basis for probable cause. The Court held that the absence of such records was not fatal to the state’s case and, more important, that records of the dog’s performance in controlled testing and certification were more probative of the dog’s reliability. The court acknowledged that dogs may alert in the field, but subsequent searches may not locate any contraband if the contraband recently was there or residue persists. Such alerts are not actually false positives, and using them to attack a dog’s reliability is not as probative of reliability as records of the dog’s performance in carefully controlled circumstances in periodic training and certification testing.9
Bailey v. United States,
133 S.Ct. 1031 (2013)
In this case the Court clarified its decision in Michigan v. Summers, which established the authority of police to detain persons found at the scene during the execution of a search warrant.10 In Summers, police were approaching a house to execute a search warrant for illegal drugs just as the defendant, Summers, was walking down the front steps. Police detained Summers as they executed the warrant, and he was arrested when narcotics were found in the course of the search. The Court found that the limited detention was a seizure, but that it was reasonable. The Court reasoned that the detention furthered legitimate government interests to include facilitating the orderly completion of the search, ensuring officer safety, and preventing escape in the event incriminating evidence is found during the search.11
In Bailey police were watching a house in anticipation of executing a search warrant for a gun based on informant information indicating that the gun belonged to a drug dealer known as “Polo,” who lived at the house.12 Two men matching the description of Polo left the home and were followed by police as they drove away from the house. Five minutes after they left the residence, the men were stopped, detained, and questioned about a mile away. The Court held this detention was not reasonable, distinguishing it from Summers. The Court stated the important law enforcement interests underlying the Summers rule as applied to persons found on the premises where a search warrant is being executed do not apply with the same or similar force to the detention of recent occupants beyond the immediate vicinity of the premises to be searched. Each interest on its own also is insufficient to justify an expansion of the rule in Summers to permit the detention of a former occupant, wherever he may be found, away from the scene of the search.13 Therefore, the authority outlined in Summers to detain persons at the scene where a search warrant is being executed is limited to the immediate vicinity of the search.
Missouri v. McNeely,
133 S.Ct. 1552 (2013)
In McNeely the government sought a blanket exception to the warrant requirement for nonconsensual blood testing in DUI cases on the theory that the natural metabolization of alcohol in the human body (and thereby the destruction of evidence) constituted an exigent circumstance. In Schmerber v. California14 the defendant had been in a serious car accident that injured himself and others and was at the hospital about two hours later when the arresting officer had a doctor take a nonconsensual blood draw. While expressly limiting the ruling to the facts of that case, the Schmerber Court held that the police officer there reasonably might have believed he was confronted with an emergency in which the delay necessary to obtain a warrant under the circumstances threatened the destruction of evidence because the human body functions to eliminate alcohol from the system.15 The Schmerber Court noted that the determination an exigency existed was made under the particular facts of that case—notably, that time already had been taken to bring the defendant to a hospital for treatment and to investigate the scene of the accident.16
The Supreme Court in McNeely declined to apply a finding of exigency based on the human body metabolizing alcohol—thus, destroying evidence—to all cases. In McNeely the defendant was pulled over for traffic violations, appeared intoxicated, and did poorly on field sobriety tests. The defendant refused to take a breathalyzer test and was taken to a hospital where a nonconsensual blood draw was taken less than half an hour after he was stopped.17 The Supreme Court held the determination of whether an exigency existed excusing the need to obtain a warrant must in each case be based on the totality of the circumstances. The Court reasoned against a categorical finding of exigency by noting there will be circumstances where getting a warrant will not cause a delay in testing the blood alcohol content of the defendant and also that blood alcohol content evidence is lost at a gradual and relatively predictable rate. The Court also importantly acknowledged technological advances in the 47 years since it decided Schmerber, taking notice of the fact officers can use cellular phones and electronic applications to obtain warrants resulting in some instances in the process causing little or no delay to the collection of evidence.18 This acknowledgement by the Court that technology has made the warrant application process more expedient likely will be applied going forward in other situations where the government contends an exigent circumstance justifies an exception to the rule requiring a warrant for a search.
Maryland v. King,
133 S.Ct. 1958 (2013)
The Supreme Court again had to deal with the impact of changing technology under the Fourth Amendment in Maryland v. King. This case was a challenge to Maryland’s law requiring that buccal swab DNA samples be taken as a routine part of booking for serious offenses. King was arrested in 2009 and booked on an assault charge. As part of standard booking procedure under Maryland law, a swab of his inner cheek was taken to obtain skin cells for a DNA test. King’s DNA was run against a database of unsolved crimes, and he was connected to an unsolved rape in 2003 for which he later was convicted.19 In a 5 to 4 decision, the Court decided such DNA testing was permissible under the Fourth Amendment.
The Court referenced the safeguards in the statute in support of its ruling. For example, the Maryland statute provides the DNA sample is not to be processed or placed in a database until there is an arraignment and a judicial officer ensures there was probable cause for arrest. If no probable cause exists or the prosecution does not result in a conviction, the sample is to be destroyed.20 The law also contains protections limiting the uses of the DNA, prescribing it may only be used for identification purposes,21 and tests for familial matches are not permitted.22 The court found that under the statute DNA was obtained in a minimally intrusive manner, and the collection was justified by the government interest in processing and identifying persons law enforcement officers have taken into custody. Fully identifying persons in custody, to include their criminal history—known and unknown—was important in making decisions regarding the safety risk such persons pose while in custody, the level of security to which they should be subject, and whether to grant bail. In other words, if persons arrested for burglary can, in fact, be implicated in a rape by their DNA, they should be handled while in custody with a level of security befitting their more serious crime, and bail decisions regarding the safety of the community and likelihood of flight should consider the more serious crime to which the individuals are linked.23 The Court further reasoned that a person’s DNA profile was another facet of their identity, like their fingerprints, photographs, or tattoos. The collection of such information incident to arrest to serve the government interest in identifying arrestees long has been held reasonable,24 and DNA simply is a more effective means of identification. The Maryland statute, with limitations on the collection and use of DNA obtained from arrestees, is reasonable under the Fourth Amendment.25
Salinas v. Texas,
133 S.Ct. 2174 (2013)
Salinas was a suspect in the shotgun murders of two brothers. Police visited him at his home, and he surrendered a shotgun for ballistics testing. Salinas also agreed to voluntarily accompany police to the station for questioning. All parties agree the interview was noncustodial for Miranda purposes. The interview lasted about an hour. For most of the interview, petitioner answered the officers’ questions. But, when asked whether ballistics tests would match his shotgun to the shells recovered at the scene of the murder, Salinas did not answer.26 Instead of responding, Salinas looked down at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his lap, and began to tighten up.27 After a few moments of silence, the officer asked additional questions, which Salinas answered.28 At trial the police officers testified regarding Salinas not providing a response to their question regarding the ballistics test, and his failure to respond was mentioned in the government’s closing argument. Salinas was convicted and appealed, contending the government’s use of testimony regarding his remaining silent in response to the question regarding whether ballistic tests would match his guns to the shells from the murder violated his Fifth Amendment rights.
In a 5 to 4 decision, the Court held that Salinas’ silence in reaction to the question could be used against him because he did not expressly invoke the privilege against self-incrimination. The Court noted it long has been settled that the privilege is not self-executing, and a witness who seeks the protection of the privilege must claim it.29 The Court has acknowledged two exceptions to this rule. A defendant at trial has an absolute right not to testify, and because the defendant’s reasons for exercising that right are irrelevant, a requirement for the defendant to expressly invoke the privilege serves no purpose.30 The second exception is where governmental coercion makes forfeiture of the privilege involuntary, such as in an un-Mirandized custodial interrogation.31 Neither of these two recognized exceptions to the requirement a witness expressly invoke the Fifth Amendment applies in this case.
Salinas asked the Court to adopt a third exception to the express invocation requirement where a defendant stands mute and declines to give an answer. The Court noted a defendant could have any number of reasons for remaining silent—for example, to buy time to think up a lie, to protect someone else, or because they are embarrassed. While the Fifth Amendment guarantees that no persons may be compelled to be a witness against themselves, it does not establish an unqualified right to remain silent.32 The court stated, “A witness’ constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim.”33 In response to an invocation of the privilege, the government may either argue the testimony would not incriminate the witness or grant immunity. But, without an express invocation, the government is left to guess at the reason for the witness’ silence. Therefore, the Court declined to adopt Salinas’ proposed third exception to the rule that an invocation of a witness’ right against self-incrimination must be expressly stated. Therefore, the government may comment at trial on a defendant’s refusal to answer questions outside of trial where the defendant did not expressly invoke the Fifth Amendment and where there has not been an involuntary forfeiture of the privilege due to government coercion.
Vance v. Ball State University,
133 S.Ct. 2434 (2013)
In a case of interest from an employment law perspective, the Court defined who is a “supervisor” for purposes of vicarious liability in workplace harassment cases. Vance was employed in a university catering department and alleged racial harassment by a coworker. Under Title VII, if the harasser is merely a coworker, the employer may be liable for a racially hostile work environment if it was negligent in allowing it to persist (i.e., the employer knew or should have known about the hostile environment and failed to take remedial action).34 On the other hand, if the harasser is a supervisor, the employer is vicariously liable, but may be able to avail itself of certain defenses.35 Therefore, the initial step in analyzing the employer’s potential liability is determining if the alleged harasser is a supervisor or a mere coworker.
The Court held that someone is considered a supervisor for purposes of determining Title VII liability only when the employer has empowered that employee to take tangible employment actions against the victim (i.e., to effect significant changes in employment status, such as hiring, firing, promoting, reassigning with significantly different responsibilities, or making a decision that causes a significant change in benefits).36 The coworker who was the alleged harasser was another catering specialist who worked with Vance in the kitchen. While that coworker was alleged to be one of the leaders in the kitchen and sometimes assigned work or directed other people, she did not have the authority to take any of these more significant tangible actions against Vance, which the Court identified as denoting supervisory status.37 The court noted this definition of who qualified as a supervisor was simpler than having, in each instance, to consider the whole spectrum of ways in which coworkers interact with each other and that in many instances, the question of supervisor status could be determined before trial as a matter of law.38
CASES OF INTEREST FOR 2013 TO 2014 TERM
Fernandez v. California, case below People v. Fernandez, 208 Cal.App.4th 100 (Ct. App. 2012), cert. granted, 133 S.Ct. 2388 (2013)
This case will address the unanswered question left by the Supreme Court’s ruling in Georgia v. Randolph, 547 U.S. 103 (2006). In Randolph the court held that where police receive consent to search a residence from one of the co-occupants, but the other co-occupant is present at the time and objects to the police searching the premises, absent exigent circumstances the warrantless search cannot be justified as reasonable as to the objecting co-occupant.39 In Fernandez v. California, Fernandez was present and objected to the police searching his residence, but he then was arrested and taken away. After Fernandez was taken away, a co-occupant gave consent for police to search their common residence, and they found incriminating evidence against Fernandez.40 The court will decide if Fernandez’ objection to the search had any effect once he no longer was present at the scene of the search.
Kaley v. United States, case below 677 F.3d 1316 (2012), cert. granted, 133 S.Ct. 1580 (2013)
In Kaley the defendants were indicted for transportation of stolen property and money laundering. Some of their assets listed in a forfeiture count of the indictment were restrained under a protective order prior to trial. The Kaleys argued that they needed some of those assets to retain counsel of their choice and that freezing their assets violated their Fifth Amendment due process right and their Sixth Amendment right to counsel. The Kaleys sought a hearing prior to trial in which they could challenge the factual basis underlying the grand jury’s probable cause determination.41 The Eleventh Circuit found they were not entitled to such a hearing because it would amount to giving them two trials on the merits.42 The Court will determine if defendants are entitled to a hearing when assets are frozen prior to trial to determine not just if the assets frozen are adequately tied to the charges in the indictment but to challenge the indictment on the facts.
Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.
1 United States v. Jones, 132 S.Ct. 945 (2012).
2 See Oliver v. United States, 466 U.S. 170 (1984).
3 Katz v. United States, 389 U.S. 347 (1967).
4 Florida v. Jardines, 133 S.Ct. at 1415-1416.
5 Id. at 1416.
6 Three concurring justices also would have found the drug dog’s sniff at the door to have been a violation of the defendants’ reasonable expectation of privacy under Katz v. United States, 389 U.S. 347 (1967) and, therefore, a search on both grounds. Florida v. Jardines, 133 S.Ct. 1409, 1418-1420.
7 Florida v. Harris, 133 S.Ct. 1050, 1055 (2013).
8 Id. at 1056.
9 Id. at 1056-1057.
10 Michigan v. Summers, 452 U.S. 692 (1981).
11 Id. at 702-703.
12 Bailey v. United States, 133 S.Ct. 1031, 1036 (2013).
13 Id. at 1041.
14 Schmerber v. California, 384 U.S. 757 (1966).
15 Id. at 770.
16 Id. at 770-771.
17 Missouri v. McNeely, 133 S.Ct. 1552, 1556-1557 (2013).
18 Id. at 1561-1562.
19 Maryland v. King, 133 S.Ct. 1958, 1965 (2013).
20 Id. at 1967.
21 The Court noted the DNA loci tested under the statute does not contain or reveal genetic traits of the person who supplied the sample, such as genetic disease, predisposition to medical conditions, or heredity. Id. at 1979-1980.
22 Id. at 1967.
23 Id. at 1972-1973.
24 Id. at 1970-1971.
25 The court in its opinion noted that all 50 states and the Federal government collect DNA from felony convicts. Id. at 1968. The Maryland statute upheld here allows DNA to be collected from persons arrested for crimes of violence and certain other serious crimes. Id. at 1967. The question remains whether a statute allowing DNA collection for arrests or convictions for less serious crimes would be found to be reasonable under the Fourth Amendment in light of the governmental interests being balanced against personal privacy interests.
26 Salinas v. Texas, 133 S.Ct. 2174, 2178 (2013).
27 Id. at 2178.
28 Id. at 2178.
29 Id. at 2178, citing to Minnesota v. Murphy, 465 U.S. 420, 425, 427 (1984), quoting from United States v. Monia, 317 U.S. 424, 427 (1943).
30 Id. at 2179.
31 Id. at 2180.
32 Id. at 2182-2183.
33 Id. at 2183.
34 See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 760 (1998).
35 Id. at 764-765.
36 Vance v. Ball State University, 133 S.Ct. 2434, 2443 (2013).
37 Id. at 2439.
38 Id. at 2450.
39 Georgia v. Randolph, 547 U.S. 103, 120 (2006).
40 People v. Fernandez, 208 Cal. App. 4th 100,106 (Ct. App. 2012).
41 Kaley v. U.S., 677 F.3d 1316, 1317 (2012).
42 Id. at 1327.