Supreme Court Update

SupremeCourt Update 2011 – 2012 Term

Statistical Review • First year in three years without a new Justice • 65 Opinions (lowest in recent history) • 160 separate opinions (also very low) • 15 cases decided by vote of 5-4 • 10 Summary reversals without opinions • 63% of decisions reversed or vacated the lower court • 9th Circuit – had 32% of cases before the Court, 71% of which were reversed HOW DID LAW ENFORCEMENT INTERESTS FAIR?

WAYBAD NEW TECHNOLOGY DIMINISHED BY AN HISTORICAL FRAMEWORK: U.S. v. Jones

WAY COOL SEARCHING NEW PRISONERS Florence v. Board of Chosen Freeholders EYEWITNESS IDENTIFICATION Perry v. New Hampshire • QUALIFIED IMMUNITY • Ryburn v. Huff • Messerschmidt v. Millender • AEDPA • Bobby v. Dixon • Howes v. Fields

Fourth Amendment • U.S. v. Jones, 132 S.Ct. 945 (2012) – Cars, GPS devices and an old standard reintroduced • Florence v. Bd. of Chose Freeholders of the County of Burlington, 132 S.Ct. 1510 (2012) – Strip searches, even when the offense is very minor

U.S. v. Jones Typical legal advisor moment Officers apply for and receive a warrant that allows, within 10 days, the placement of a GPS device on a car within the District of Columbia. Officers then place the GPS device on the car on the 11th day in Maryland. Resulting in a 2005 case being decided by the SCOTUS in 2012.

U.S. v. Jones • Vehicle tracked for 28 days; over 2,000 pages of data collected. • Motion to suppress denied by the trial court, except for time the vehicle was in Jones’ residential garage, because: “…[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” • The trial court concluded that there was no search and therefore no 4th Amendment violation.

U.S. v. Jones • D.C. Circuit reversed, holding that the evidence gained from the GPS device was inadmissible because collection of a month’s worth of data violated Jones’ reasonable expectation of privacy.

U.S. v. Jones The question before the Supreme Court: “…whether the attachment of a Global-Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.”

U.S. v. Jones Answer: Yes, clearly as far as Justice Scalia is concerned: 1. The 4th covers persons, houses, papers and effects – a vehicle is clearly an effect. 2. The installation and use of the GPS device is a search. Why? Because it requires a trespass on property.

U.S. v. Jones “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.”

U.S. v. Jones The Court reintroduces us to a concept that was the basis of the 4th Amendment prior to the Katz decision in 1967 – trespass upon the protected property of another for information gathering purposes is a search under the 4th Amendment.

U.S. v. Jones At the same time, the Court recognizes that property rights are not the sole measure of the 4th Amendment. The more recently used test – whether the area searched is one in which a person has a “reasonable expectation of privacy” continues to apply, as a supplement to the rule regarding trespass.

U.S. v. Jones The Government attempted to save the evidence by arguing that, even if the placement and tracking was a search, it was reasonable and therefore lawful, given the evidence that existed concerning Jones’ illegal activities. The Court refused to discuss that argument, treating it as waived because it had not been raised in the lower courts.

Florence v. County of Burlingtonor what’s a little strip search now and again Police arrested Florence on an outstanding bench warrant for failure to appear at a hearing on an overdue fine (he had in fact paid the fine about a week late, two years before). He was held in one jail for six days and then transferred to a second jail for one day, after which the charges were dismissed. At each jail he was subjected to a visual strip search – required to strip and expose the most private areas of his body to permit close visual inspection.

Florence v. County of Burlington Filed suit under 42 U.S.C. §1983, arguing that: 1. Routine strip searches for minor offenses violated the 4th Amendment. 2. Such searches required a reason to believe that the inmate was concealing contraband or weapons.

Florence v. County of Burlington Based primarily on the realities of trying to keep contraband out of prisons, the Supreme Court upheld the strip searches. The Court held that such a search of a person who is being placed in the general population of a jail strikes a reasonable balance between inmate privacy and the needs of the institutions under the 4th Amendment. .

Due Process • Perry v. New Hampshire, 132 S.Ct. 1510 (2012) – Due Process and the admissibility of reliable evidence.

Perry v. New Hampshire “Asked to describe what she had seen, Blandon stated that, around 2:30 a.m., she saw from her kitchen window a tall, African-American man roaming the parking lot and looking into cars. Eventually, the man circled Clavijo's car, opened the trunk, and removed a large box. Clay asked Blandon for a more specific description of the man. Blandon pointed to her kitchen window and said the person she saw breaking into Clavijo's car was standing in the parking lot, next to the police officer. Perry's arrest followed this identification.”

Perry v. New Hampshire A month later, the eyewitness was unable to identify the defendant in a photo lineup. Defense claimed that what had occurred was essentially the same as a one-person showup and sought to suppress the identification on the grounds that admitting it at trial would violate due process.

Perry v. New Hampshire General rule Due process prohibits the introduction of an out-of-court identification if: • The police use an identification procedure that is both unnecessary and suggestive AND • The reviewing court determines, on the facts of the case before it, that the improper police conduct tainted the resulting identification, rendering it unreliable and therefore, inadmissible.

Perry v. New Hampshire This identification was spontaneous and not the result of inducement from the police. The witness was not asked if that guy over there was the person she saw, but rather was asked to provide a description of the suspect. The witness moved to a point from which she could see the suspect and pointed him out as the person she had seen committing the crime. Because no police conduct was involved, the reliability of the identification was for the jury to decide.

Perry v. New Hampshire “…we hold that the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement.”

Qualified immunity • Malley v. Briggs • Filarsky v. Delia • Rehberg v. Paulk • Messerschmidt v. Millender, 132 S. Ct. 1235 (2012) • Ryburn v. Huff, 132 S.Ct. 987 (2012)

SIDEBAR FOR THOSE WHO INSTRUCT OFFICERS In discussions of qualified immunity cases with officers, it is always important to remind them of two things: First, the status of the case at the time of decision – in most situations, these cases are decided early on in the process and the facts are presumed to be those that favor the person bringing the suit. The determination of the facts by a judge or jury comes later, if the case goes to trial. Second, the key issue for us is qualified immunity. The officers will receive qualified immunity, and the case will be dismissed against them, in two situations: 1. if, taken in the light most favorable to the party asserting the injury, the facts alleged do not show the officer's conduct violated a constitutional right or 2. if the right violated was not clearly established at the time of the violation.

Messerschmidt v. Millender Officers prepared a search warrant to search the last known address of a known gang member who had threatened his ex-girlfriend and tried to kill her, firing a sawed off shotgun at her five times because she had “called the cops” on him. They prepared a warrant and affidavit, which was reviewed and approved by their supervisors and the district attorney’s office and then presented to a magistrate who issue the search warrant. The warrant authorized a search for gang indicia and any device that could fire ammunition, any ammunition and any firearm-related materials.

Messerschmidt v. Millender After the warrant was executed, the defendant’s family sued, claiming the warrant was overbroad. The District Court agreed and denied the officers qualified immunity. The 9th Circuit upheld the District Court, holding that neither the warrant nor the affidavit provided any basis for concluding there was PC to search for or seize any other firearms or any gang related materials. The court held that the officers should have known that there was no PC and that their conduct was in violation of existing law. The U.S. Supreme Court reversed the 9th Circuit.

Messerschmidt v. Millender The Court does not determine whether PC existed in this case, though it argues that it did. The Court simply finds that whether or not the officers were mistaken about the existence of PC, their determination that there was probable cause was not “plainly incompetent” and that, on that basis alone, qualified immunity should have been granted.

Messerschmidt v. Millender An officer has qualified immunity when the officer takes actions that are reasonable in light of the clearly established law at that time. When reviewing questions related to the validity of a search warrant under the 4th Amendment: …the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner or, as we have sometimes put it, it objective good faith.

Messerschmidt v. Millender There is one exception to this rule: an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” The Supreme Court in Messerschmidt makes it clear that “the threshold for establishing this exception is a high one, and it should be.” When a magistrate finds a warrant to be based on probable cause, it is unlikely that the finding of probable cause will be so lacking as to be “entirely unreasonable.”

Messerschmidt v. Millender The Court points out that the officers in this case had their warrant application and draft warrant reviewed and approved by their sergeant, their lieutenant and an assistant district attorney before taking it to the magistrate for approval. In other words, the Court notes, “the officers thus took every step that could reasonably be expected of them.” To decide otherwise, according to the Court, would mean that not only the officers but their supervisors, the attorney and the magistrate were all “plainly incompetent.” Qualified immunity was granted.

Huff v. City of Burbank, 632 F.3d 539(9th Cir. 2011)The facts according to the 9th Circuit: Four officers responded to a local school concerning rumors that a particular student was going to “shoot up” the school. After discussions with school authorities, the officers went to the student’s home. Two of the officers approached the house; two waited out on the sidewalk. Eventually the mother (Maria) and the student (Vincent) came out of the house and stood on the front steps. One of the officers asked if they could go inside to talk; Maria said no. One of the officers asked Maria if there were any guns in the home; she responded that she would go get her husband and turned and went into the house. One of the officers followed her inside; the other officer followed. The other two officers, who had been on the sidewalk, assumed that Maria had given consent to enter and also entered the home.

Ryburn v. Huff, 132 S.Ct. 987 (2012)the facts according to the U.S.S.Ct. Four officers responded to a local school concerning rumors that a student, Vincent Huff, was going to “shoot up” the school. Officers learned that the rumors had resulted in a number of parents keeping their children home. Officers interviewed his classmates, who said he had been absent for two days, was often bullied, and they believed he was capable of carrying out the threat. Officers when to the home. They knocked and announced, and called the home phone. No one responded. The sergeant then called Mrs. Huff’s cell phone, identified himself, and asked about her location. She advised she was in the house and that Vincent was inside with her. The sergeant asked her to come outside and speak with them; she hung her phone.

Ryburn v. Huff Two minutes later, she and Vincent came out to the front steps. One of the officers told them they were there to discuss the threats. The sergeant asked if they could continue the discussion inside; Mrs. Huff refused, which the sergeant thought was unusual. The sgt. then asked if there were any guns in the house and Mrs. Huff responded by “immediately turning around and running into the house.” The sergeant and one other officer followed her inside.

Ryburn v. Huff Officers were entitled to qualified immunity, as it was reasonable for officers to believe that they were entitled to enter if they had a reasonable basis for concluding that there was an imminent threat of violence. The fact that all of Mrs. Huff’s conduct was lawful does not mean that it was not a cause for alarm. “It should go without saying, however, that there are many circumstances in which lawful conduct may portend imminent violence.”

Ryburn v. Huff (USSCt. 2012) Supreme Court: A reviewing court must not look at each separate act individually and in isolation, but must look at the events as a whole: “…it is a matter of common sense that a combination of events each of which is mundane when viewed in isolation may paint an alarming picture.”

Ryburn v. Huff (USSCt. 2012) And finally, the Court relied on its prior language in the use of force case, Graham v. Connor, to remind courts that: “…reasonableness ‘must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight’ and that ‘[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving.’ Judged from the proper perspective of a reasonable officer forced to make a split-second decision in response to a rapidly unfolding chain of events that culminated with Mrs. Huff turning and running into the house after refusing to answer a question about guns, petitioners' belief that entry was necessary to avoid injury to themselves or others was imminently reasonable.”

AEDPA (Antiterrorism and Effective Death Penalty Act of 1996) • Bobby v. Dixon, 132 S. Ct. 26 (2011) • Howes v. Fields, 132 S. Ct. 1181 (2012) • Colemen v. Johnson, • Hardy v. Cross • Wetzel v. Lambert

AEDPA Under the AEDPA, in order for a federal court to issue a writ of habeas corpus, the court must find the state court’s decision was either: Contrary to, or involved an unreasonable application of, clearly established Federal law, as set forth by the Supreme Court, or Based on “an unreasonable determination of the facts” in light of the state court record.

Bobby v. Dixon Archie Dixon and Tim Hoffner murdered Chris Hammer, buried him alive, used his ID to obtain a state identification card and then sold Hammer’s car for $2800. Dixon was convicted of murder, kidnapping, robbery and forgery and was sentenced to death. The Ohio Supreme Court affirmed. Sixth Circuit Court of Appeals issued a writ, finding three “egregious errors” in the decision of the Ohio Supreme Court.

Bobby v. Dixon Without the detailed facts (and there are many), here are the three holdings by the Sixth Circuit that the U.S. Supreme Court rejected. 1. The 6th held that Dixon could not be interrogated after his arrest because he had previously invoked his right to counsel during a conversation with a detective at a time when he was not in custody. The U.S. Supreme Court indicated that it has “never held that person can invoke his Miranda rights anticipatorily, in a context other than custodial interrogation.”

Bobby v. Dixon 2. The 6th Circuit held that it was a violation of the 5th Amendment for police to urge Dixon to “cut a deal” before his accomplice did so. The Supreme Court noted that “no holding of this Court suggests, much less clearly establishes, that the police may not urge a suspect to confess before another suspect does so.”

Bobby v. Dixon 3. The 6th Circuit held that Dixon had been subjected to an improper interrogation technique (a deliberate question-first, warn-later strategy that the Supreme Court had ruled unconstitutional in Seibert v. Missouri). The Supreme Court disagreed, finding that no such strategy had been used in this case.

Bobby v. Dixon “Because it is not clear that the Ohio Supreme Court erred at all, much less erred so transparently that no fair-minded jurist could agree with that court’s decision, the Sixth Circuit’s judgment must be reversed. “

Howes v. FieldsAnother AEDPA case; another 6th Circuit decision The 6th Circuit held that it is clearly established law “that the questioning of a prisoner is always custodial when the prisoner is removed from the general prison population and questioned about events that occurred outside the prison.” In fact, according to the Supreme Court: “On the contrary, we have repeatedly declined to adopt any categorical rule with respect to whether the questioning of a prison inmate is custodial.”

Fields was serving a sentence in jail for disorderly conduct. He was taken from his cell by a corrections officer to a conference room where he was questioned by two deputies about allegations that he had engaged in sexual conduct with a 12 year old boy. At the beginning of the interview, he was told that he was free to leave and return to his cell; he was later told that he could leave whenever he wanted. The deputies were armed but he was not cuffed or otherwise restrained. The door was sometimes open and sometimes shut; he was offered food and drink. He told the deputies several times that he no longer wanted to talk with them, but he never asked to go back to his cell. The interview lasted well past the hour when he usually went to bed; one officer spoke to him in a very sharp tone and on one occasion used profanity. After 5-7 hours of interrogation, he confessed. When he was finally ready to return to his cell, he had to wait 20 minutes for an escort.

According to the Court, Fields was not physically restrained or threatened, was in a comfortable room, was offered food and water and the door was left open. The court emphasized “the undisputed fact that [Fields] was told he was free to end the questioning and return to his cell.” The Court noted that interrogation of a prisoner is different from interrogation following arrest for at least three reasons: 1. There is none of the shock that accompanies an arrest 2. A prisoner is unlikely to be lured into speaking in order gain a prompt release 3. A prisoner knows that the law enforcement officers who are questioning him lack the authority to affect the length of his sentence. The Supreme Court held that Fields was not in custody for purposes of Miranda.

First, Eighth, Supremacy Clause • U.S. v. Alvarez, 132 S. Ct. 2537 (2012) – Stolen Valor Act • Miller v. Alabama, 132 S. Ct. 2455 (2012)– Mandatory life in prison without parole for juveniles • U.S. v. Arizona, 132 S. Ct. 2492 (2012)– immigration and preemption

U.S. v. Alvarez Supreme Court struck down, as a content-based restriction on free speech violative of the First Amendment, the Stolen Valor Act, which criminalized the false claim of receipt of a military decoration or medal.

Miller v. Alabama Mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on "cruel and unusual punishment.”

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