Caniglia v. Strom, No. 20-157

The United States is riveted by the ongoing trial of Derek Chauvin for the death of George Floyd, who died in visible mental distress. The debate continues to rage on the proper scope of law-enforcement’s rule in addressing mental-health and substance-abuse issues after the high-profile death of Daniel Prude. With this fraught social backdrop, the Supreme Court is set this Term quietly to decide what role the Fourth Amendment should play, if any, in the execution of the police’s “community caretaking functions” in Caniglia v. Strom.

It is no secret that in contemporary American society, the criminal adjudicatory and penal systems have largely replaced the mental-health apparatus available before the 1980s. As Bernard Harcourt illustrates in his Illusion of Free Markets, hospital beds available for the mentally ill have been almost entirely replaced by cells in jails in prisons since the late 1970s.

As a result of this social focus toward incarceration, local law-enforcement officers have become the principal first responders in dealing with mental illness and related issues. These beat cops, many of whom mean well, are not often fully trained on how to deal with the issues raised by mental health and similar problems of “community caretaking”. But more importantly for us, does the Fourth Amendment regulate police conduct in exercising this “community caretaking” function? If so, by how much?

The story begins in sharply divided decision that does not meaningfully implicate the modern role of the police as first responders to mental health crises. In Cady v. Dombrowski, 413 U.S. 433 (1973), Chester Dombrowski, a Chicago police officer, was arrested for drunk driving following a single-car collision in West Bend, Wisconsin. Believing that Chicago police officers were required to carry their service revolvers at all times, the Wisconsin police searched Mr. Dombrowski’s person but could not find the gun. So, they searched his car, without a warrant, and without probable cause, and discovered a bloodied car mat. Confronting Mr. Dombrowski with this information, he provided a statement leading the Wisconsin officers to a body, and, eventually, to his conviction for murder.

The Supreme Court upheld the warrantless search, based on a “concern for the safety of the general public who might be endangered if an intruder removed a revolver from the trunk of the vehicle.” As the Court would go on to write, “the type of caretaking “search” conducted here of a vehicle that was neither in the custody nor on the premises of its owner, and that had been placed where it was by virtue of lawful police action, was not unreasonable solely because a warrant had not been obtained.” In short, the police can conduct reasonable searches out of concern for the general public. But that search, in Cady, is closely cabined to the fact that the gun was located in a car that “was vulnerable to intrusion by vandals,” and the decision was careful to rest its premise on the Court’s “previous recognition of the distinction between motor vehicles and dwelling places.”

Caniglia tests the limits of Cady by presenting the question “[w]hether the ‘community caretaking’ exception to the Fourth Amendment’s warrant requirement extends to the home.” And it also brings into sharp relief the question of what role, if any, the police should be playing in monitoring the mental health of the citizens they are sworn to protect.

On August 20, 2015, Edward Caniglia and his wife, Kim, got into a disagreement in their Rhode Island home. In what counsel describes as a “dramatic gesture,” Edward put an unloaded firearm on their table and told his wife, “why don’t you just shoot me and get me out of my misery?” Eventually, their fight ended and Kim spent the night at a hotel. The following day, when Edward did not answer the phone, she called the police to make a “well call” on her husband. The police escorted her home and found Edward there, acting normally. Nonetheless, the police had Edward involuntarily evaluated by a psychiatrist.

While being evaluated, the police entered the home, with neither a warrant and probable cause nor consent, and seized Edwards handguns. A suit under section 1983 of title 42 of the U.S. Code followed, and the First Circuit ultimately determined that the Cady exception extended to the home. The Supreme Court granted certiorari.

The First Circuit was quite clearly wrong: Cady rested entirely upon the fact that the car was a nuisance and was “vulnerable to intrusion by vandals” who could get ahold of a gun. (And, as the reader might well imagine, I do not even think the Supreme Court had Cady right. The police should not have been able to search Mr. Dombrowski’s 1967 Thunderbird without a warrant, either.) The home, on the other hand, has been found repeatedly subject to the highest level of Fourth Amendment protection available; no Fourth Amendment exception could possibly extend so far as to permit the search contemplated in Caniglia. The Supreme Court is very likely to reverse this decision, if not unanimously, then nearly so.

The Fourth Amendment issue seems so clear as to be nearly uninteresting. But the larger social issue at stake is compelling. As a country, we have apparently decided to place tremendous faith in law enforcement, not just to make individualized determinations about criminal wrongdoing while on the beat, but also with momentous decisions about whether civilians are so mentally unwell or out of control as to warrant a spit hoods, chokeholds, or home searches. The line has historically be drawn at the home, and clearly the Supreme Court has a responsibility to uphold that line in Caniglia. But we also, as a community, have to decide if we really want the police, in the form they currently operate, to do the “caretaking.”

Post-trial mental-health diversion

California’s mental-health diversion statute, codified at section 1001.36 of the Penal Code, was groundbreaking when it first went into effect in 2018. Promising eligible defendants “postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment,” the statute vests the trial court with tremendous power to treat underlying criminogenic needs.

The contours of that statute are still being worked out, and the trial courts still manage to get it wrong. What happens when the defendant, who has mental-health issues, actually proceeds to trial and then seeks mental-health diversion (MHD)?

In People v. Curry, C090409, the defendant was charged with robbery. Deemed competent following a psychiatric report documenting “mild symptoms of situation related anxiety and depression,” he stood trial and was convicted by a jury. In advance of sentencing, the defendant, filing motions pro per, announced an intention to file a petition for MHD, which the court denied as untimely. Notably, the defendant advised that “he raised the issue with his trial counsel ‘well in advance,’ but ‘she never even investigated it, you know. My mental health at the time was brought up.'”

Reversing, the Third District concluded that because the legislative intent behind the MHD statute was to “apply as broadly as possible,” the statute’s phrase, “until adjudication” meant “until the judgment of conviction,” not “until adjudication of guilt.” This resolves an issue raised in, and undecided by, the California Supreme Court in People v. Frahs (2020) 9 Cal.5th 618, 633, fn.3.

The implications of Curry‘s clear definition of section 1001.36’s limitations for post-trial motions practice is clear. Counsel’s obligation thoroughly to explore MHD does not end upon the clerk’s reading of the jury’s verdict after trial. Rather, MHD should be considered up until judgment is entered.

The Demise of the Third-Party Doctrine?

Note: The Supreme Court ultimately ruled in 2018 as hoped in this 2017 post, that a warrant is required to secure cell-tower data.

Civil libertarians, criminal defendants and their lawyers, and (some) Fourth Amendment scholars alike have long yearned for the eventual death of the so-called “third-party doctrine.” Or, at least, they have longed for its eventual dismemberment. That time may well be nigh. The court is considering a certioari petition (Carpenter v. United States, No. 16-402) that squarely raises the issue whether cellphone users have a reasonable expectation of privacy in “cell site location information” (records of where a cellphone user has been based on where she was at the time she made a call), even though they share that information with their respective cellphone service providers.

The third-party doctrine asserts that a person forfeits a reasonable expectation of privacy in a given piece of information the moment she discloses that information to a third party. Once she has done so, the police may obtain that information from the third party without a warrant because such an act is not a “search” within the meaning of the Fourth Amendment. The rule is derived from two cases from the 1970s in which the Supreme Court determined that Fourth Amendment “searches” did not occur when the used a “pen register” to capture the telephone numbers that a suspect had dialed and when the police obtained a suspects bank records from a bank. Smith v. Maryland, 442 U.S. 735 (1979); United States v. Miller, 425 U.S. 435 (1976). In both cases, the Court reasoned, the suspect had voluntarily surrendered the information at issue to a third party, thereby forfeiting any expectation of privacy in the information that society would be prepared to deem “reasonable.”

The third-party doctrine had a brief brush with disaster in United States v. Jones, 132 S. Ct. 945 (2012). In that case, the Supreme Court had to determine whether it constituted a “search” for Fourth Amendment purposes when the police attached a GPS monitor to a suspect’s car. A majority of the court concluded that it did, because such an act would have given rise to a cause of action for trespass in the 18th century. (Naturally, the late Justice Scalia, a champion of property rights in the Fourth Amendment context, authored the lead opinion.) A plurality of the Court, however, recognized that advances in GPS and communication technology have created a law-enforcement environment permitting near-ubiquitous surveillance under the third-party doctrine regime. See id. at 428-29 (Alito J., concurring in the judgment); 417-18 (Sotomayor, J., concurring) (“[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”).

Should the Court grant certiorari and conclude that there is a reasonable expectation of privacy in cellphone-tower data, it will likely do so on the basis that technology has so far advanced from the “pen registers” and the like of the 1970s that the third-party doctrine, as applied to such information, no longer stands up to scrutiny. It may even conclude, as the Fifth Circuit has, that each cellphone-tower data case should be treated on a case-by-case basis: that a warrant should be required only when the reviewing magistrate concludes that the the location information sought will show sensitive information (such as, for example, being in a constitutionally protected place).

The truth, however, is that the third-party doctrine was never sensible to begin with, and the court would be wise to dispose of it altogether. The technological sophistication of the information at issue should never have been the point: rather, the overarching point (observed ad nausem by commentators) is that it defies common sense to suppose that a person completely relinquishes a reasonable expectation of privacy whenever she communicates something to a third party. For example, the Court has argued that, because a person voluntarily provides records to a bank, that voluntariness establishes a willingness to reveal the information, thereby extinguishing the expectation of privacy that would otherwise protect it.  Miller, 425 U.S. at 442. The key error is that the Court’s rationale presupposes that the person does not expect that the bank will keep the information private. Barring some strong indications to the contrary, it seems far more likely that disclosures to a bank (or to most other people one shares private information with) are intended to remain “between the speaker and the hearer,” and therefore reasonably expected to be private.

Whatever comes of the Carpenter petition, the longevity of the third-party doctrine will eventually come under the watchful eye of the Supreme Court. With any luck, the Justices will curtail it or, even better, dispose of it altogether. The court should, rather than look to whether the suspect has voluntarily disclosed the information, determine whether that disclosure is of the kind that society would recognize as private (that is, that society would assume would not be publicized). In other words, the Court should apply the law as it existed before it fell of the wagon with the third-party doctrine in the first place.

Brady and the Fourth and Fifth Amendments

In Brady v. Maryland, 373 U.S. 87, 87 (1963), the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused . . . violates due process [under the Fourteenth and Fifth Amendments] where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”  The three elements to a Brady claim – suppression, favorability, and materiality – have been voluminously discussed in the reports (though rarely by the Court), and can be rather confusing.  What concerns us here, though, is the element of favorability: specifically, whether “evidence favorable to an accused” can include evidence that goes toward the constitutionality of a search, seizure, or interrogation.

“Favorable” generally means “exculpatory” or “impeaching.”  The Court has explicitly included “impeachment” evidence – that is, any evidence that tends to harm the credibility of a government witness – within “exculpatory.”  In Strickler v. Greene, the Court “disavowed any difference between exculpatory and impeachment evidence for Brady purposes.”  527 U.S. 263, 281-82 (1999).  This makes sense.  Merriam-Webster defines “exculpate” as “to prove that someone is not guilty of doing something wrong;” if evidence tends to impeach a witness, it tends to show that the witness can’t be relied upon to provide a sound basis for proving the defendant guilty.  That is to say, if exculpatory information constitutes Brady, impeachment evidence constitutes Brady a fortiori.

So far so good.  But what about evidence that a search, seizure, or interrogation was unlawful?  For example, say the police did not have reasonable suspicion that someone they observed selling wares on the street was up to something illegal.  But they came up to him based on a confidential tip that might not have supplied probable cause, and placed him under arrest, during the course of which they searched his backpack incident to arrest and discovered counterfeit D.V.D.s.  The police subsequently provided the prosecution with the information regarding the tip only ten minutes before trial; the prosecutor does not advise defense counsel.  The accused’s defense attorney does not file a motion to suppress, as he is not aware of the factual basis on which a motion might lie, but discovers over the course of cross-examining the police at trial that the evidence of the unlawfulness of the stop was suppressed.  Was the evidence “favorable” for purposes of Brady?

On similar facts, the D.C. Court of Appeals recently said “yes,” as have at least three U.S. Courts of Appeals on similar facts.  See United States v. Gamez-Orduno (9th Cir.); Nickols v. Gibson, (10th Cir.), Smith v. Black (5th Cir.).  In fact, the United States Attorneys’ Manual requires disclosure of evidence that “might have a significant bearing on the admissibility of prosecution evidence.”  U.S.A.M. § 9-5.001(C)(2).  The Manual, however, categorizes such disclosures as “information beyond that which is constitutionally and legally required” to be disclosed.  Id. (emphasis added).

When you think about it, though, such information should be constitutionally required to be disclosed (as several circuits and the D.C. Court of Appeals has already found), and Attorneys General and the U.S. Attorney’s office (and, indeed, the Court) should recognize this to be the case.  If particular evidence is not admissible – for whatever reason – it tends to “exculpate” the defendant.  This is so even if the accused was caught red-handed with contraband after an illegal stop, because if the evidence is inadmissible, he will be more likely to be deemed “not guilty” legally, if not factually.  In short, Brady‘s favorability measure should be, not the factual “guilt” or “innocence” of a particular accused, but rather the likelihood of hindering a finding of legal guilt according to admissible evidence in court.  This is particularly the case where the exclusionary rule is, Stone v. Powell and Hudson v. Michigan notwithstanding, “an essential part of both the Fourth and Fourteenth Amendment.”  Mapp v. Ohio, 367 U.S. 643 (1961).  To my mind, that would be the proper interpretation of the “favorability” element of Brady.

As Judge Kozinski recently and accurately observed, “[t]here is an epidemic of Brady violations abroad in the land.”  United States v. Olsen (dissenting from denial of rehearing en banc).  And he was talking about normal impeachment evidence at trial!  Imagine, if you can, how many more such violations exist with respect to the constitutionality of searches, seizures, and interrogations – restrictions the police often consider nothing more than mere impediments to “good police work,” and toward which prosecutors often turn a blind eye.  The Court should take up the question – and soon – and rule that such evidence is “favorable” within the meaning of Brady and the Fifth and Fourteenth Amendments.

Ohio v. Clark, No. 13-1352

Argued on March 2, 2015, Ohio v. Clark marks a crossroads in modern Confrontation Clause doctrine.  Roughly, the question is whether a mandated reporter – in this case, a schoolteacher – becomes an agent of law enforcement when questioning a child about the cause of the child’s abuse.  If he is an agent, and the interrogation of the child is performed for purposes of obtaining evidence for a future criminal prosecution, the child’s responses are testimonial, and admission of those statements absent the opportunity to cross-examine the child would violate the Confrontation Clause.  If, on the other hand, the mandated reporter is not an agent of law enforcement, and is interrogating the child for purposes of resolving an ongoing emergency (viz., the child’s abuse), the child’s statements are not testimonial, and may be admitted without affording the defendant the opportunity to cross-examine his accuser.

Teachers at Cleveland’s William Patrick Day Head Start Center are required to report instances of child abuse or neglect, and the Center trains its teachers to question potentially abused or neglected children about the sources of their injuries, including any individuals responsible.  On March 17, 2010, a three-year-old child came to school with facial injuries.  His teacher asked him how he got his injuries, and the child responded that his mother’s boyfriend, Darius Clark, had caused them.  The teacher duly reported this information, and precipitated in the arrest and charging of Mr. Clark for child abuse.  Before trial, a judge found the child incompetent to testify, but permitted inclusion of the child’s identification to his teacher of Mr. Clark as his abuser.

The Confrontation Clause provides, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”  (Emphasis added.)  Now, I referred to the current approach to the Confrontation Clause as “modern;” this is, however, something of a misnomer.  It is certainly the newer of the interpretations of the Confrontation Clause, but it is by no means “modern” – rather, it purports to adopt the “original” understanding of the Sixth Amendment, which prohibited “testimonial” hearsay.  That is to say, the Framers drafted Sixth Amendment to exclude out-of-court sworn testimony procured for no other purpose than prosecution; such statements were admissible in England beginning with the reign of Queen Mary.  See Crawford v. Washington, 541 U.S. 36, 43 (2004).  The Framers found the admission of such statements without affording the defendant the opportunity to challenge the declarant’s statements via cross-examination; and so the Confrontation Clause was born.  Thus, only statements made with the principal purpose of furthering a criminal prosecution qualify as “testimonial” hearsay within the meaning of the Sixth Amendment; if the statement is not “testimonial” – that is, was made to resolve an ongoing emergency – it is not testimonial.  For example, in Michigan v. Bryant, 131 S. Ct. 1143 (2011), the Court found that the statement of a fatally wounded man regarding the whereabouts of his assailant was non-testimonial, because it was made to resolve an “ongoing emergency” (namely, the fact that an armed man was running about Detroit).

Which brings us to the question: was the child’s statement, made at the formal questioning of his teacher, designed primarily for the purpose of prosecution, or for resolving an ongoing emergency?  Mr. Clark’s counsel, Jeffrey Fisher (who has argued nearly every major Crawford case, including the first) struggled under what appeared to be the ire of a skeptical Court: surely, the Justices seemed to say, the teacher was only interested in bringing the kid into safety, rather than prosecuting Mr. Clark!  The following colloquy, 35:22-36:20, illustrates the point.

MR. FISHER: . . . We don’t dispute that the teacher has a protective purpose, partly, in mind.  And I think it’s absolutely natural that the teacher would.  But the problem is, and our position is, that is inextricably intertwined with criminal prosecution as well.  That’s what the Ohio Supreme Court said, construing Ohio law, is that one of the chief methods of protection is prosecution.  And —

JUSTICE GINSBURG: Much too late.MR. FISHER: Well, it might be too late.  But, Justice Ginsburg, it doesn’t make it that much different than the situation you had in Hammon[ v. Indiana, 547 U.S. 813 (2006) (finding that a 9-1-1 call was testimonial because the crime had already happened and the call was made for purposes of prosecuting the offender)] involving domestic violence.  It doesn’t make it – that much difference in a situation you have with a police officer or someone else trying to get a drug dealer off the corner, to try to get a white-collar criminal to stop embezzling money.  All of those things are ongoing crimes, but gathering statements that help both stop the harm that’s occurring and are useful in the criminal justice proceeding, we think, are testimonial when that criminal incentive and purpose is intertwined with the protective purpose.

There are many other issues to discuss in Clark, but a potentially decisive one is whether the dominant purpose of asking the abused child who abused him was either (a) to prevent future abuse, or (b) to facilitate a future criminal prosecution.

To me, a central question is whether the proffered hearsay (namely, the Clark’s identity) is more relevant to resolving an ongoing emergency, or more relevant to facilitating a future criminal prosecution.  If, upon discovering that the abuse did not happen at school (which the record shows it clearly had not), then if all the teacher wanted to do was protect the child, she would have kept the child at school, called the relevant state or local children’s services organization, and reported suspected abuse at home.  In this scenario, the actual identity of the abuser is only marginally relevant to the non-testimonial purpose of asking for the abuser’s identity.  On the other hand, the actual identity of the abuser is categorically relevant to any future criminal prosecution, and the teacher was trained to obtain that information for that purpose alone.  Framed in this fashion, shouldn’t the case be a slam dunk for Mr. Clark?

Perhaps not.  Mr. Clark’s already got one certain vote against him – Justice Thomas’s interpretation of Crawford is so narrow (and so sui generis), that it simply could not countenance the child’s statement as testimonial.  So, if four Justices are prepared to say that the primary motive was to protect the child (which Justices Ginsburg, Kennedy, Alito, and possibly Sotomayor seem to think so, judging from the questioning), that’ll be that.  Worse, if the Court is interested in taking a test case to determine the status of statements made to non-law-enforcement actors, this is as unsavory a test case as one might desire to find.  The Justice’s (entirely warranted) sympathies for victims of domestic abuse seemed to be clouding the issues in the case, and it may well be that they won’t want to exclude the three-year-old’s statement purely on intuition.  Mr. Fisher probably felt as much when he found himself comparing the three-year-old victim of child abuse to an informant trying “to get a white-collar criminal to stop embezzling money.”  Constitutionally, he’s right; but the image war may be harder to win.

Heien v. North Carolina, No. 13-604

In a decision this past December, the Court held that a police officer may stop an individual based on a mistaken understanding of the law she believes that individual is violating, provided that the officer’s mistake of law is reasonable.  The decision is puzzling in its reasoning and its near-unanimity.

In Heien v. North Carolina, Sergeant Matt Darisse stopped Nicholas Brady Heien for driving a car with one broken brake light.  Over the course of the stop, Mr. Heien gave Sgt. Darisse consent to search the vehicle (whoops), and the sergeant discovered cocaine.  As it turns out, the proper interpretation of the relevant statute, N.C. Gen. Stat. Ann. § 20-129(g) (2007), reveals that it was perfectly legal for Mr. Heien to drive with one brake light, and that liability only arises when both brake lights are broken.  The question for the Court to resolve, then, was whether the stop was bad because, legally speaking, Sgt. Darisse had no basis to stop Mr. Heien, who was fastidiously observing North Carolinian traffic laws.  Oddly enough, the Court ruled that, even though Mr. Heien was abiding by the rules, Sgt. Darisse was reasonable in resolving an open question of law against Mr. Heien, and that the stop was good, and the fruits admissible.

By way of background, the existing state of affairs with regard to on-the-street police stops consists of the following.  Police officers may stop any person for any violation of any law where the officer has probable cause to believe that law was violated, without regard to the police officer’s underlying motive (even if the stop is racially motivated).  Whren v. United States, 517 U.S. 806 (1996).  Furthermore, that officer may conduct a full-custody arrest of that individual, regardless of how minor the offence is for which the individual was stopped.  Atwater v. City of Lago Vista, 532 U.S. 318 (2001).  Once that arrest is has begun, the officer has nearly unlimited power to conduct a search incident to arrest on the person, United States v. Robinson, 414 U.S. 218 (1973), and within the wingspan of the arrestee, Chimel v. California, 395 U.S. 752 (1969).  Finally, if the police officer is wrong about a fact relevant to the constitutionality of the search – say, whether the person consenting to entry does, in fact, have authority to consent – they are given some degree of leeway, provided the factual error is reasonable.  Illinois v. Rodriguez, 497 U.S. 177 (1990).  These cases essentially empower the police to make full-custody arrests for the sorts of minute violations of law individuals make on a daily basis, and to conduct searches thereto, and even allows them a margin of error with respect to the sorts of factual determinations that can make policing so difficult a task.

In Heien, the Court has added an yet another arrow in the police officer’s quiver: if they have stopped a person on a (reasonably) mistaken understanding of what is, and is not, unlawful, their action is not unreasonable, and is therefore not a violation of the Fourth Amendment.

The Court rested its reasoning on the “touchstone” of all Fourth Amendment questions: the reasonableness of the police action.  Because it was a reasonable error to have understood the governing statute to prohibit one faulty brake light, rather than only prohibiting two, the police officer acted reasonably in stopping Mr. Heien.  The Chief Justice almost flippantly observed, “to be reasonable is not to be perfect.”  (The Court also relied on an historical argument it had itself to acknowledge was largely inapposite: in the nineteenth century, officers could obtain qualified immunity from civil liability for reasonable mistakes of law in determining probable cause.  From this, the Court inferred that reasonable mistakes of law in determining probable cause had some bearing on the question whether the Constitution had been violated.  Yet, qualified immunity is very much beside the point as far as constitutionality is concerned.  That is to say, an officer may have violated the Constitution (the only relevent question in Heien), yet still be immune from suit.  See Harlow v. Fitzgerald, 457 U.S. 800 (1982).)

But what does Heien incentivize?  As Justice Sotomayor observed at oral argument, North Carolina’s position essentially means that whenever there is “any open question, police officers will rule in favor of their right to search.”  (Trans. 30:15-17.)  And, believe it or not, the meaning of a great deal of law – particularly the poorly-drafted legislation that governs everyday life – consists of “open questions.”  At first blush, Heien creates an incentive for the police (or well-informed police, anyway) to claim that a bad stop was, in fact, a good stop because their reasonable understanding of the law prohibited the arrestee’s conduct.

Worse than that, Heien does something new, and frightening, to the Fourth Amendment: it permits delegation of questions of law to police officers, in a context where the Fourth Amendment presumptively prohibits delegation of questions of fact.  The Court is wont to remind us that the presumption of Fourth Amendment activity is probable cause and the warrant, issued by a impartial judicial officer.  Katz v. United States, 389 U.S. 347, 357 (1967).  The warrant is based upon assertions of fact.  Where no exception to the warrant applies, and the police must seek a warrant, the Court will (one hopes) refuse to defer to the police: rather, their suspicions must be confirmed by the magistrate.

If the Fourth Amendment’s presumption is that we do not defer to the police on questions of fact, how much less should we defer to the police on questions of law?  Justice Douglas’s warning about the greater deference to the police on factual matters signaled by Terry resonates today:

To give the police greater power than a magistrate is to take a long step down the totalitarian path.  Perhaps such a step is desirable to cope with modern forms of lawlessness.  But if it is taken, it should be the deliberate choice of the people through a constitutional amendment.

Terry v. Ohio, 392 U.S. 1, 38 (1968).  Perhaps it is desirable that police be given latitude in interpreting the statutes that make up the bulk of everyday regulation.  I certainly don’t think so – the police have enough power as it is.  But that step should not have been taken by the Court, and it is deeply unsettling that only one Justice should have the courage to distance herself from it.

Grady v. North Carolina, No. 14-593

In a per curiam decision last week, the Court ruled that permanently affixing a satellite-based monitoring device to the person of an individual convicted of multiple sex crimes unequivocally constituted a search within the meaning of the Fourth Amendment.

The petitioner, Torrey Dale Grady, was convicted of two sex offenses in North Carolina, the first in 1997 and the second in 2006.  The North Carolina legislature, in a brilliant illustration of political overreach against the most misunderstood and brutally punished of criminal defendants, requires that “recidivist sex offenders” be monitored by the State via a G.P.S. device for the remainder of their natural lives.  N.C. Gen. Stat. Ann. §§ 14-208.40(a)(1), 14-208.40B (2013).  His public defender, in a creative maneuver, conceded that Mr. Grady’s convictions rendered him eligible for the G.P.S. monitoring program, but that the program itself constituted Fourth Amendment activity under United States v. Jones, 132 S. Ct. 935 (2012).  In that case, a majority of the Court concluded that attaching a G.P.S. monitoring device to a car constituted a search in the sense that it was a trespass on the defendant’s property.

The Court concluded last week that Mr. Grady’s lifetime monitoring must be a search a fortiori.  Surely, if securing a G.P.S. on an S.U.V. is a search, so to is forcibly affixing a similar device to Mr. Grady’s ankle.  The Court did not rule on the reasonableness of the search, however, remanding to the North Carolina courts to determine whether the search is reasonable.

Was the search reasonable?  Unfortunately for us (but fortunately for Mr. Jones), the Court deemed the question forfeited by the United States in Jones.  Id. at 944.  Consequently, we don’t have anything directly from the Court on the question whether such monitoring is a reasonable search.  Given that the Court made it clear in Jones that the “reasonable expectation of privacy test” articulated in Katz v. United States, 389 U.S. 347 (1967) has been added to the trespass test of Jones, see Jones, 132 S. Ct. at 952, the question will turn on whether Mr. Grady has a reasonable expectation of privacy, precisely, in his personal whereabouts for the remainder of his natural life.  It is important to note that the G.P.S. tracking at issue in Grady does not appear to be a condition of general parole, probation, or supervised release: under these circumstances, Mr. Grady very well may have a “diminished expectation of privacy.”  See, e.g., Samson v. California, 547 U.S. 843, 851 (parolees) and Griffin v. Wisconsin, 483 U.S. 868, 885 (1987) (probationers).  Consequently, it would seem that his expectations of privacy are coextensive with those of any other ex-offender, or, put another way, any other citizen free of state supervision.  If this is the case, lifetime monitoring (or conceivably any monitoring absent a specific term of parole or probation) must surely be unreasonable.