During its 2015-2016 session, the U.S. Supreme Court decided cases of interest to the law enforcement community. These include a consolidated trio of cases looking at implied consent laws in driving under the influence (DUI) cases, a Terry stop case, an unusual Second Amendment case, and a case addressing qualified immunity after use of deadly force. This article provides a brief synopsis of each. As always, law enforcement agencies should be aware that their own state constitutions and laws may provide greater protections than U.S. constitutional standards.

Birchfield v. North Dakota,

579 U.S.___, 136 S.Ct. 2160 (2016)

Bernard v. Minnesota,

579 U.S.___, 136 S.Ct. 2160 (2016)

Beylund v. Levi,

579 U.S.___, 136 S.Ct. 2160 (2016)

In this consolidated opinion, the Supreme Court addressed three cases, one from Minnesota and two from North Dakota, challenging state “implied consent” laws. Specifically, these laws require a driver—upon an officer’s request—to consent to a chemical test for alcohol in the blood. Under the statutes in question, a driver’s refusal to submit to such a test itself is a crime with attendant criminal penalties.

The North Dakota and Minnesota laws both require officers to read an implied consent advisory statement that informs the driver that the test is required and that it is a crime to refuse to take it. Both Birchfield and Beylund involved blood testing, while Bernard involved breath testing. In all three cases, the defendants appealed to the state supreme court, and in each case the state supreme court ruled against them. These appeals followed.

In Birchfield v. North Dakota, after driving his car into a ditch, Birchfield was asked to perform field sobriety tests, which he failed. He then took a preliminary breath test, which revealed a 0.254 percent blood alcohol content (BAC). Birchfield was placed under arrest and was read the implied consent advisory. He refused to consent to a blood test as required by law. Birchfield was not charged with DUI, but with refusal to submit to a chemical test.

In the next case, Bernard v. Minnesota, Bernard and two other men got their truck stuck in a river as they attempted to pull their boat out of the water. When police arrived on the scene, witnesses identified Bernard as the driver. He admitted to the officers that he had been drinking, but denied driving the truck. The officers arrested Bernard, took him to the police station, and read him the implied consent advisory statement. He refused to take a breath test, and the state charged him with two counts of test refusal.

In the third case, Beylund v. Levi, a police officer approached Beylund’s stopped vehicle after he observed him driving erratically. As the officer came near, he saw an empty wine glass in the center console and detected an odor of alcohol. The officer administered field sobriety tests, which Beylund failed. He agreed to take an on-site screening test, but did not provide an adequate breath sample. The officer arrested Beylund and transported him to a hospital. At the hospital, the officer read him an implied consent advisory, and Beylund agreed to take a blood test. The results showed that he had a BAC of 0.250 percent. An administrative hearing officer suspended Beylund’s driving privileges for 2 years.

The first issue is whether the warrantless searches in these cases were reasonable. As a general rule, the Fourth Amendment, which forbids “unreasonable searches,” prohibits law enforcement officers from conducting a search—including a chemical test for alcohol—without a warrant. The Court has carved out exceptions to this rule, to include when a suspect voluntarily consents to a search or police conduct a valid search incident to arrest.

All three petitioners argued that their warrantless searches were invalid because they did not fall within any exception to the warrant requirement. They argued the searches could not be justified based on valid consent where the consent was not voluntary because the states had criminalized the refusal of consent. The defendants also contended these searches were not valid searches incident to arrest because they were not designed to preserve officer safety or prevent the destruction of evidence—the two reasons underpinning the search incident to arrest exception.

The Court found that the government has a legitimate interest in keeping the roads safe from drunk drivers and, therefore, an interest in obtaining information about blood alcohol content. Because there are more than one million DUI and operating a vehicle impaired (OVI) arrests every year, the Court noted that requiring a search warrant for every breath test would overwhelm the courts. The Court concluded that because breath tests do not pose a significant privacy concern but serve a significant government interest, they may be administered after an arrest without a search warrant.¹ However, because blood tests are particularly intrusive, law enforcement must obtain a warrant prior to requiring a person to submit to a blood test.²

The second issue addressed in the opinion was whether, under the general framework of implied consent laws, it is permissible for a state to impose criminal penalties for the refusal to submit to such a test. The Court, recognizing that there must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads, concluded “that motorists cannot be deemed to have consented to submit to a blood test on the pain of committing a criminal offense.”³

The Court concluded that Birchfield was threatened with an unlawful search and a warrantless blood test, thus making the consent involuntary, and that the conviction must be reversed. Bernard was convicted for refusing a warrantless breath test. This test was a permissible search incident to arrest for drunk driving. No warrant was required. Unlike Birchfield and Bernard, Beylund was not prosecuted for refusing a test. He consented to the test after the police told him that the law required his submission. Because the voluntariness of consent must be “determined from the totality of the circumstances,” the Court remanded the case back to the state court to reevaluate the voluntariness of Beylund’s consent.⁴

Utah v. Strieff,

579 U.S. ___, 136 S.Ct. 2056 (2016)

In this case the Supreme Court addressed the effect an outstanding valid arrest warrant discovered during an unlawful investigative detention has on the admissibility of any evidence seized pursuant to the search incident to the arrest. The defendant in this case was arrested after being detained by a police officer investigating an anonymous complaint of drugs being dealt from a residence. During the investigatory stop, the officer discovered the subject was wanted on an outstanding warrant and after arresting him found a quantity of drugs and paraphernalia on his person.⁵

The State of Utah did not argue the detention was valid, instead arguing that the discovery of the subsequent outstanding untainted arrest warrant made the search constitutional.⁶ The trial court agreed with the state and admitted the evidence. The defendant pleaded guilty, but reserved his right to appeal the evidentiary issue. The Utah Supreme Court reversed both the trial court’s finding, as well as the affirmation by the Utah Court of Appeals.⁷ The Utah Supreme Court held that only an act of the defendant’s free will (such as a confession or consent to search) could break the causal connection between the illegal detention and the discovery of evidence and that the officer’s discovery of the outstanding warrant did not satisfy this requirement. The Supreme Court reversed, finding that the discovery of the warrant sufficiently attenuated the illegal detention, thus preventing application of the exclusionary rule to suppress the evidence.⁸

The Court explained that three of the exceptions to the exclusionary rule deal with the causal relationship between the unconstitutional act and the discovery of the evidence. The one the Court focused on in this case was the attenuation doctrine.⁹ The Court said that evidence may be admissible when the connection between the unconstitutional act committed by the law enforcement officer and the discovery of the evidence is interrupted by some intervening circumstance so that the constitutional guarantee that is violated would not be served by suppression of the evidence.¹⁰ In other words, was the intervening circumstance enough to separate the unconstitutional police behavior from the search that led to the discovery of the evidence?

The Court looked to three factors in deciding whether the attenuation between the unconstitutional act and the discovery of the evidence was enough to overcome suppression. First was temporal proximity; how close in time did the unconstitutional act occur to the discovery of the evidence? The Court found that this favored the defendant because the stop and the arrest occurred so close in time.

Second, the Court examined the presence of an intervening circumstance to break the causal chain. The Court found this to favor the state significantly. The warrant was valid and untainted and predated any interaction between the officer and the defendant. A warrant is a court order to arrest and bring forth a person when discovered by a law enforcement officer, giving the officer no choice in arresting the defendant. A search incident to the arrest was “undisputedly” lawful according to the Court.¹¹

The third factor addressed by the Court was the purpose and flagrancy of the official misconduct. The Court noted that the purpose of the exclusionary rule is to deter misconduct by the police.¹² According to the Court, the officer in this case, at most, was negligent in stopping the defendant without first obtaining either consent or proper facts rising to the level of reasonable suspicion that the defendant was involved in criminal activity. The Court further noted that the officer’s action did not appear to be part of any systematic or recurrent police misconduct.¹³ This favored the state in this case.

The Court rejected the defendant’s argument that the officer’s actions were a “fishing expedition” with no basis in fact, noting that the officer was investigating the activities associated with at least one complaint call to the police department of illegal activity at a residence from which the defendant exited. The Court further rejected the defendant’s argument that the prevalence of arrest warrants in many locales will allow the police to conduct “dragnet” searches if the exclusionary rule does not apply. The Court observed that the facts did not indicate such police action in this case, and if a future case has such facts, then the ruling might be different if the officers are committing flagrant misconduct.¹⁴ 

Taylor v. United States,

579 U.S. ___, 136 S.Ct. 2074 (2016)

In Taylor v. United States, the Supreme Court resolved a circuit split by ruling that in a Hobbs Act prosecution for a robbery that targeted a known drug dealer for drugs or drug sale proceeds, the jurisdictional requirement of affecting commerce is inherently satisfied because the business of drug dealing is “commerce over which the United States has jurisdiction.”¹⁵ David Anthony Taylor was indicted for his participation in two home invasions targeting marijuana dealers in the Roanoke, Virginia, area. The “Southwest Goonz,” the gang with which Taylor was affiliated, targeted known drug dealers for home invasions in part because of their propensity to “keep large quantities of cash and illegal drugs in their homes.”¹⁶

After his first trial ended in a hung jury, Taylor was retried. At his second trial, at the urging of the government, the trial court precluded Taylor from introducing evidence that the drug dealers he had targeted in the two separate incidents only dealt in locally grown marijuana. After being convicted, Taylor appealed to the Fourth Circuit Court of Appeals, which affirmed his conviction, finding that “[b]ecause drug dealing in the aggregate necessarily affects interstate commerce, the government was simply required to prove that Taylor depleted or attempted to deplete the assets of such an operation.”¹⁷

The federal Hobbs Act makes it a crime for a person to affect commerce or to attempt to do so by robbery.¹⁸ The Act also defines the term commerce broadly and includes “commerce between any point in a State…and any point outside thereof; and all other commerce over which the United States has jurisdiction.”¹⁹ Taylor argued that for him to be found guilty, the prosecution had to prove beyond a reasonable doubt “(1) that the particular drugs in question originated or were destined for sale out of State or (2) that the particular drug dealer targeted in the robbery operated an interstate business.”²⁰ Because his victims operated entirely intrastate, Taylor argued, the necessary element of affecting commerce had not been proven at his trial. The Supreme Court disagreed with Taylor.

Referring to its holding in Gonzales v. Raich,²¹ the Court recognized “Congress’ power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce” and that the “production, possession, and distribution of controlled substances constitutes a ‘class of activities’ that in the aggregate substantially affect interstate commerce.”²² By simply grafting this holding onto the commerce element of the Hobbs Act, the Court found it to be a “simple matter of logic that a robber who affects or attempts to affect even the intrastate sale of marijuana grown within the State affects or attempts to affect commerce over which the United States has jurisdiction.”²³

Caetano v. Massachusetts,

577 U.S. ___, 136 S.Ct. 1027 (2016)

In September 2011 Caetano was questioned by police in the parking lot of a Massachusetts supermarket where it was suspected she had been an accomplice to shoplifting. Caetano gave police consent to search her purse, which revealed no evidence of shoplifting but did contain a stun gun. Caetano justified possession of the weapon as necessary due to her fear of a violent ex-boyfriend. She then was arrested for possession of an “electrical weapon” in violation of a Massachusetts statute that bans possession of such weapons. Her motion to dismiss the charge on Second Amendment grounds was denied by the trial court.

Caetano appealed her case to the Massachusetts Supreme Judicial Court.²⁴ The Supreme Judicial Court rejected Caetano’s Second Amendment claim on three grounds: 1) a stun gun is not the type of weapon eligible for Second Amendment protection; 2) stun guns were not in use at the time of the enactment of the Second Amendment; and 3) stun guns fall within the traditional prohibition against carrying dangerous and unusual weapons.²⁵ Caetano was convicted and appealed to the U.S. Supreme Court.

The Supreme Court stated that its decision in District of Columbia v. Heller²⁶ made it clear that the Second Amendment extends to arms not in existence at the time of the founding fathers and that the mere fact a stun gun is a modern invention does not make it “unusual.” Heller also makes it clear that a weapon need not be adaptable to military use before it is eligible for Second Amendment protection.²⁷ The Court vacated the decision of the Supreme Judicial Court of Massachusetts and remanded the case for further proceedings not inconsistent with the Supreme Court’s rulings in District of Columbia v. Heller and McDonald v. Chicago.²⁸ As an aside, the case was held moot by the Massachusetts court and not retried.

McDonnell v. U.S.,

579 U.S. ___, 136 S.Ct. 2355 (2016)

While serving as governor of Virginia, Robert McDonnell accepted $175,000 in loans, gifts, and other consideration from businessman Jonnie Williams, whose company, Star Scientific, had been unsuccessful in acquiring Food and Drug Administration (FDA) approval for a diet supplement called Anatabloc. Williams sought Governor McDonnell’s help in promoting the drug. The federal bribery statute, 18 U.S.C. § 201, makes it a crime for a public official to “receive or accept anything of value” in exchange for being “influenced in the performance of any official act.” To be an official act, there must be some question or matter before the official in question, and the official must act or agree to act on that matter in exchange for the bribe.

At trial, the prosecution established that McDonnell and his wife had made phone calls and arranged meetings with state officials on behalf of Williams regarding Anatabloc, and he was found guilty. The Fourth Circuit Court of Appeals identified three specific matters that had been pending before Governor McDonnell that could form the basis for official acts: 1) whether Virginia universities would conduct research that would secure FDA approval of Anatabloc; 2) whether the Virginia Tobacco Commission would allocate grants to study a precursor of the drug made from tobacco; and 3) if Virginia state employee health plans would cover Anatabloc.²⁹ The Fourth Circuit affirmed the convictions.

The Supreme Court established two requirements for proving bribery under the federal statute and stated the issue in the case: “First, the Government must identify a ‘question, matter, cause, suit, proceeding or controversy’ that ‘may at any time be pending’ or ‘may by law be brought’ before a public official. Second, the Government must prove that the public official made a decision or took an action ‘on’ that question, matter, cause, suit, proceeding or controversy, or agreed to do so. The issue here is whether arranging a meeting, contacting another official, or hosting an event—without more—can be a ‘question, matter, cause, suit, proceeding or controversy,’ and if not, whether it can be a decision or action on a ‘question, matter, cause, suit, proceeding or controversy.’”³⁰ The Court held that with regard to the three specific matters identified by the Fourth Circuit, McDonnell had not taken action or made a decision on the issues.

The Supreme Court vacated the judgment and remanded the case back to the Fourth Circuit, stating in a unanimous opinion that the statute does not sufficiently define “official act.” The Supreme Court now defines official act as “a decision or action on a question, matter, cause, suit, proceeding or controversy.” The Court ruled that the acts of Governor McDonnell in question, which included setting up meetings, talking to officials, and organizing events, may not fit under that definition. Under this narrow definition, the jury instruction in McDonnell’s original case was erroneous because the jury would not know the limits of what does and does not constitute an “official act.” As a result, the jury may have found McDonnell guilty of acts that were not criminal.³¹

Mullenix v. Luna,

577 U.S. ___, 136 S.Ct. 305 (2016)

In Mullenix v. Luna, the Supreme Court decided that an officer who fired shots at a fleeing vehicle resulting in the death of the driver was entitled to qualified immunity. While the case was resolved favorably for the officer involved, the Court’s decision did little to clarify the circumstances under which law enforcement officers are permitted to use deadly force to stop a fleeing vehicle.

In Mullenix, a police officer with the Tulia, Texas, Police Department (TPD) followed Israel Leija, Jr., to a local drive-in restaurant with the intent to arrest him on an outstanding warrant. As the officer approached Leija to place him under arrest, Leija sped off and headed to a nearby interstate highway. A trooper with the Texas Department of Public Safety (DPS) quickly joined the officer in the pursuit, which lasted 18 minutes and reached speeds between 85 and 110 miles per hour.³² During the pursuit, Leija twice called the TPD dispatcher, claiming to have a gun and threatening to shoot the pursuing officers if they did not end the pursuit. These threats, along with information that Leija might be intoxicated, were communicated to the officers involved in the pursuit.

As the pursuit continued, other officers set up tire spikes at three locations.³³ These officers had received training in using such devices properly, as well as in minimizing the danger of being hurt by the passing vehicle. Mullenix, a trooper with DPS, learned of the pursuit and drove to an overpass where he planned on deploying another spike strip. After arriving at the overpass, Mullenix then considered whether he could use his rifle to disable Leija’s car.³⁴ Mullenix had neither received training regarding the use of such a tactic nor had he ever attempted this technique to stop a fleeing motorist.

Mullenix asked the DPS dispatcher to inform his supervisor, Sergeant Byrd, of his plan and to ask Byrd whether it was “worth doing.”³⁵ Before he had received a response from his supervisor, Mullenix took up a shooting position on an overpass 20 feet above the interstate. Approximately three minutes later, Mullenix fired six shots from his rifle at Leija’s car as it approached the overpass. Leija’s car then engaged the spike strip, hit the median, and rolled two and a half times. Authorities determined that Leija had been killed by the shots fired by Mullenix, four of which had struck his body. There was no indication that any of the shots had struck the car’s radiator, hood, or engine block.³⁶

As executors of Leija’s estate, respondents filed suit under 42 U.S.C. § 1983 against Mullenix on grounds that he had used excessive force against Leija by shooting him with his rifle in an effort to end the pursuit. Mullenix’s motion for summary judgment on the basis of qualified immunity was denied by the district court because it found that “[t]here are genuine issues of fact as to whether Trooper Mullenix acted recklessly, or acted as a reasonable, trained peace officer would have acted in the same or similar circumstances.”³⁷

The U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s decision, and Mullenix’s request for a rehearing en banc before the Fifth Circuit was denied.³⁸ In its opinion, the Fifth Circuit concluded that “Mullenix’s actions were objectively unreasonable because several of the factors that had justified deadly force in previous cases were absent here: There were no innocent bystanders, Leija’s driving was relatively controlled, Mullenix had not first given the spike strips a chance to work, and Mullenix’s decision was not a split-second judgment.”³⁹ Therefore, the court determined that Mullenix was not entitled to qualified immunity because “the law was clearly established such that a reasonable officer would have known that the use of deadly force, absent a sufficiently substantial and immediate threat, violated the Fourth Amendment.”⁴⁰

In its decision reversing the Court of Appeals, the Supreme Court addressed only the issue of qualified immunity and not whether Mullenix’s actions constituted a violation of the Fourth Amendment. At the outset of its analysis, the Court reiterated the principle that “qualified immunity shields officials from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”⁴¹ “A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”⁴² The Court added that the proper inquiry in such a case is whether it was clearly established that the Fourth Amendment prohibited the officer’s conduct in the specific situation confronted by him or her.

The Court acknowledged that “excessive force cases involving car chases reveal the hazy legal backdrop against which Mullenix acted.”⁴³ In the two cases in which the Court had previously considered excessive force claims in the context of high-speed car chases, it did not find that the officers’ use of deadly force violated the Fourth Amendment.⁴⁴ The Court further noted that lower courts have never clearly established that an officer’s use of deadly force in circumstances similar to those present in this case were inappropriate. Moreover, the cases cited by the Fifth Circuit in denying qualified immunity to Mullenix were too factually dissimilar to provide much guidance as to whether his actions were appropriate under the Fourth Amendment. Because the existing law at the time Mullenix used deadly force was not “beyond debate,” qualified immunity protected his actions, even assuming they fell into the “hazy border between excessive and acceptable force.”⁴⁵

While the Court held that Mullenix was entitled to qualified immunity when applying existing case law to these specific facts, it should be emphasized that this decision, like other use-of-force claims under the Fourth Amendment, is very fact specific, and the Court’s decision should not be interpreted as broadly sanctioning law enforcement officers’ use of deadly force to terminate high-speed chases.