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Volokh: New Draft Article, “The Mosaic Theory of the Fourth Amendment” by Orin Kerr

I have just posted a new draft article, The Mosaic Theory of the Fourth Amendment, which is forthcoming in the Michigan Law Review. Here’s the abstract:

In the Supreme Court’s recent decision on GPS monitoring, United States v. Jones (2012), five Justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions have always evaluated each step of an investigation individually. Jones introduced what we might call a “mosaic theory” of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search.

This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and dilemmas that a mosaic theory would raise, and it analyzes the ways in which the mosaic theory departs from prior understandings of the Fourth Amendment. It makes three major points. First, the mosaic theory offers a dramatic departure from existing law. Second, implementing the theory requires courts to answer a long list of novel and challenging questions. Third, the benefits of the mosaic theory are likely to be modest, and its challenges are likely to be great. Courts should approach the mosaic theory with caution, and may be wise to reject it entirely.

SCOTUS to the People: "Lift 'em and spread 'em."

The Fourth Amendment does not require jail officials to have reasonable suspicion that a person arrested for a minor offense possesses a concealed weapon or other contraband in order to subject him to a routine strip search prior to introducing him into the general jail population. (per BNA) Florence v. Board of Chosen Freeholders of County of Burlington, 2012 U.S. LEXIS 2712 (April 2, 2012) (5-4):

JUSTICE KENNEDY delivered the opinion of the Court, except as to Part IV, concluding that the search procedures at the county jails struck a reasonable balance between inmate privacy and the needs of the institutions, and thus the Fourth and Fourteenth Amendments do not require adoption of the framework and rules petitioner proposes. Pp. 5-18, 19.

(a) Maintaining safety and order at detention centers requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to problems. A regulation impinging on an inmate’s constitutional rights must be upheld “if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U. S. 78, 89. This Court, in Bell v. Wolfish, 441 U. S. 520, 558, upheld a rule requiring pretrial detainees in federal correctional facilities “to expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution[s],” deferring to the judgment of correctional officials that the inspections served not only to discover but also to deter the smuggling of weapons, drugs, and other prohibited items.In Block v. Rutherford, 468 U. S. 576, 586-587, the Court upheld a general ban on contact visits in a county jail, noting the smuggling threat posed by such visits and the difficulty of carving out exceptions for certain detainees. The Court, in Hudson v. Palmer, 468 U. S. 517, 522-523, also recognized that deterring the possession of contraband depends in part on the ability to conduct searches without predictable exceptions when it upheld the constitutionality of random searches of inmate lockers and cells even without suspicion that an inmate is concealing a prohibited item. These cases establish that correctional officials must be permitted to devise reasonable search policies to detect and deter the possession of contraband in their facilities, and that “in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations courts should ordinarily defer to their expert judgment in such matters,” Block, supra, at 584–585. Persons arrested for minor offenses may be among the detainees to be processed at jails. See Atwater v. Lago Vista, 532 U. S. 318, 354. Pp. 5-9.

(b) The question here is whether undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other contraband. Correctional officials have a significant interest in conducting a thorough search as a standard part of the intake process. The admission of new inmates creates risks for staff, the existing detainee population, and the new detainees themselves. Officials therefore must screen for contagious infections and for wounds or injuries requiring immediate medical attention. It may be difficult to identify and treat medical problems until detainees remove their clothes for a visual inspection. Jails and prisons also face potential gang violence, giving them reasonable justification for a visual inspection of detainees for signs of gang affiliation as part of the intake process. Additionally, correctional officials have to detect weapons, drugs, alcohol, and other prohibited items new detainees may possess. Drugs can make inmates aggressive toward officers or each other, and drug trading can lead to violent confrontations. Contraband has value in a jail’s culture and underground economy, and competition for scarce goods can lead to violence, extortion, and disorder. Pp. 9-13.

(c) Petitioner’s proposal that new detainees not arrested for serious crimes or for offenses involving weapons or drugs be exempt from invasive searches unless they give officers a particular reason to suspect them of hiding contraband is unworkable. The seriousness of an offense is a poor predictor of who has contraband, and it would be difficult to determine whether individual detainees fall within the proposed exemption. Even persons arrested for a minor offense maybe coerced by others into concealing contraband. Exempting people arrested for minor offenses from a standard search protocol thus may put them at greater risk and result in more contraband being brought into the detention facility.

It also may be difficult to classify inmates by their current and prior offenses before the intake search. Jail officials know little at the outset about an arrestee, who may be carrying a false ID or lie about his identity. The officers conducting an initial search often do not have access to criminal history records. And those records can be inaccurate or incomplete. Even with accurate information, officers would encounter serious implementation difficulties. They would be required to determine quickly whether any underlying offenses were serious enough to authorize the more invasive search protocol. Other possible classifications based on characteristics of individual detainees also might prove to be unworkable or even give rise to charges of discriminatory application. To avoid liability, officers might be inclined not to conduct a thorough search in any close case, thus creating unnecessary risk for the entire jail population. While the restrictions petitioner suggests would limit the intrusion on the privacy of some detainees, it would be at the risk of increased danger to everyone in the facility, including the less serious offenders. The Fourth and Fourteenth Amendments do not require adoption of the proposed framework. Pp. 13-18, 19.

KENNEDY, J., delivered the opinion of the Court, except as to Part IV. ROBERTS, C. J., and SCALIA and ALITO, JJ., joined that opinion in full, and THOMAS, J., joined as to all but Part IV. ROBERTS, C. J., and ALITO, J., filed concurring opinions. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

This serves utterly no purpose other than humiliate minor offenders. It will lead some state courts to find their state constitutions provide more protection. I thought Lago Vista was wrong; this just compounds that error. See HuffPo: Lift 'Em and Spread 'Em: High Court Greenlights Search Without Suspicion; NYTimes: Justices Approve Strip-Searches for Any Offense.

Because of the following story, NYC can now humiliate more minor offenders by strip searching them for the hell of it.

The great irony of Florence is that Mr. Florence was strip searched when jailed because of an erroneous record of an unpaid ticket. If his car was searched, he'd have no recourse there, either, because the erroneous record isn't subject to the exclusionary rule. So, what remedy do the people have to protect against careless police and officious bureaucrats who just don't care that you were arrested and searched based on wrong information, but allegedly in good faith? Apparently none, now.

NYTimes Editorial: Examining Marijuana Arrests:

The New York State Legislature showed good sense when it exempted people convicted of low-level marijuana possession from having to submit DNA to the state database, unless they have been convicted of a previous crime. Still, the state must do more to curb the arrests of tens of thousands of people each year in New York City for minor possession of marijuana, despite a 1977 state law that decriminalized it.

The I-19 checkpoint south of Tucson is a constitutional immigration checkpoint per the Ninth Circuit. Occasionally vehicles are “flushed” through the checkpoint as vehicles build up. When that happens, that does not change the legal standard of suspicion necessary to stop a vehicle for an immigration check. Also, the fact all the officers working the checkpoint are cross-designated as drug officers does not make the checkpoint unconstitutional, despite the fact that 300-400 drug smuggling cases are made there a year. United States v. Ruiz-Perez, 2012 U.S. Dist. LEXIS 44505 (D. Ariz. March 30, 2012), R&R 2011 U.S. Dist. LEXIS 154502 (D. Ariz. October 6, 2011):

Agent Kouris' subjective belief that Defendant's vehicle may be smuggling drugs does not affect the analysis the reasonableness of the stop. Although subjective intent has been considered in evaluating the subjective intrusiveness of a checkpoint stop, the key consideration is the subjective belief of the traveler, not the officer. See e.g. United States v. Hawkins, 249 F.3d 867, 874 (9thCir. 2001) (stating "in some instances, the failure to stop every vehicle could raise concerns over subjective intrusiveness," but finding no Fourth Amendment violation where Defendant was not treated differently from other drivers and no law-abiding motorist would have been unduly surprised or afraid because of this stop). In fact, the Supreme Court has indicated that some discretion and motive is inherent and permissible in routine checkpoint operations. ...

Defendant’s consent was voluntary, with the court evaluating numerous factors. Also, defendant signed a written consent. It was after a protective sweep. United States v. Salgado, 2012 U.S. Dist. LEXIS 44682 (N.D. Ga. March 12, 2012).*

An arrest for trespass at a housing project did not justify a search incident and seizure of the bicycle the defendant was riding. It wasn’t an offense for which there would be evidence. Commonwealth v. Holloway, 2012 Mass. App. LEXIS 162 (March 30, 2012).

Defendant was stopped for suspicion of DUI and his car was searched without a warrant in violation of the state constitution. While the officer did all that he normally could, there is no good faith exception in Washington, and the search should have been suppressed. State v. Tamblyn, 2012 Wash. App. LEXIS 695 (March 20, 2012).*

In an appeal dismissed for lack of a dispositive question, the court added: “Defendant has failed to cite controlling authority, and we have found none, to support his assertion that ‘proof of actual attempts by law enforcement officers to obtain a lawful warrant must be placed on the record before the court may find that exigent circumstances exist.’” State v. Lands, 2012 Tenn. Crim. App. LEXIS 203 (March 29, 2012)

Defendant was visiting a house that was searched under a warrant. His car was in the garage and searched too. It was reasonable for the police to believe that the car in the garage was subject to search with the premises. United States v. Powell, 2012 U.S. Dist. LEXIS 43866 (S.D. W.Va. March 29, 2012):

The scope of a warrant to search an entire property or premises "includes automobiles on the property or premises that are owned by or are under the dominion and control of the premises owner or which reasonably appear to be so controlled." United States v. Patterson, 278 F.3d 315, 318 (4th Cir. 2002). Defendant argues that the searched vehicle at 228 North Queens Court could not have reasonably appeared to be owned or controlled by the owner of the searched property, James Meeks, because the searching officers were aware that the vehicle was registered to someone other than Meeks.

The Court disagrees. Although the vehicle was not registered to Meeks, it could still reasonably appear to be controlled by him, because it was within his attached garage. Courts have long considered attached garages to be part of the home. See Taylor v. United States, 286 U.S. 1, 6 (1932) (warrantless search of garage violated Fourth Amendment); ....

Police were called to an on-the-street argument and saw defendant and a woman. Defendant was questioned by the police, and his speech was slurred and he refused to remove his hands from his pockets. He was arrested for public intoxication and convicted. The police did not need reasonable suspicion to talk to him. Woodson v. State, 2012 Ind. App. LEXIS 140 (March 29, 2012).*

PolitiFact Florida: Are lawmakers protected by First Amendment against drug testing? by Katie Sanders:

Miami Herald columnist Carl Hiaasen torched Florida lawmakers for passing a drug-testing bill for state workers that excluded one class of government employees: the elected officials who passed the law.

Hiaasen took particular issue with the proposal's House sponsor Rep. Jimmie Smith, a Republican from Lecanto, and his explanation why the law excludes Gov. Rick Scott and legislators.

"It was found to be unconstitutional to drug test elected officials because it prevents us, as citizens, from having that First Amendment right," Smith said.

Smith's defense is novel — and wrong, it turns out.

Not just wrong: Off the wall. A de jure "speech and debate" defense to drug testing? Come on: That doesn't even pass the laugh test.

Volokh Conspiracy: Magistrate Judge Rejects Mosaic Theory of Fourth Amendment For Cell-Site Information by Orin Kerr:

I have posted the short opinion (dated March 23) from Magistrate Judge Collings of the District of Massachusetts here. It largely adopts the reasoning of United States v. Graham from the District of Maryland, which I blogged about here. In my view, Judge Collings was correct to issue the order without probable cause for a second reason: The Fourth Amendment questions are not yet ripe for review, as I argue in this amicus brief I filed recently in the Fifth Circuit.

HuffPo: Illinois Traffic Stop Of Star Trek Fans Raises Concerns About Drug Searches, Police Dogs, Bad Cops by Radley Balko:

Last December, filmmaker Terrance Huff and his friend Jon Seaton were returning to Ohio after attending a "Star Trek" convention in St. Louis. As they passed through a small town in Illinois, a police officer, Michael Reichert, pulled Huff's red PT Cruiser over to the side of the road, allegedly for an unsafe lane change. Over the next hour, Reichert interrogated the two men, employing a variety of police tactics civil rights attorneys say were aimed at tricking them into giving up their Fourth Amendment rights. Reichert conducted a sweep of Huff's car with a K-9 dog, then searched Huff's car by hand. Ultimately, he sent Huff and Seaton on their way with a warning.

Earlier this month, Huff posted to YouTube audio and video footage of the stop taken from Reichert's dashboard camera. No shots were fired in the incident. No one was beaten, arrested or even handcuffed. Reichert found no measurable amount of contraband in Huff's car. But Huff's 17-and-a-half minute video raises important questions about law enforcement and the criminal justice system, including the Fourth and Fifth Amendments, the drug war, profiling and why it's so difficult to take problematic cops out of the police force.

The video: Breakfast in Collinsville (with Michael Richert), and its mostly from the POV of the police car. Pretty typical overbearing cop during an interstate stop who won't take "I won't consent" and "I want to go" for an answer. Finally he gets out the drug dog that doesn't alert and then searches anyway. This is a really long article, but typical Balko: excellent coverage.

NYTimes Editorial: The Roberts Court Defines Itself:

For anyone who still thought legal conservatives are dedicated to judicial restraint, the oral arguments before the Supreme Court on the health care case should put that idea to rest. There has been no court less restrained in signaling its willingness to replace law made by Congress with law made by justices.

NYTimes.com: 538: Supreme Court May Be Most Conservative in Modern History by Nate Silver

If President Obama’s health care bill is stricken by the Supreme Court, liberals will take it as evidence of judicial overreach, or at least that the court has shifted far to the right. One statistical method for analyzing the Supreme Court, in fact, already finds that the current court is the most conservative since at least the 1930s.

...

As you can see from the chart, Mr. Martin and Mr. Quinn rate the current court (based on data up through late 2010) as the most conservative in their database based on the positioning of the median justice, the previous high having come in the early 1950s. Although Justice Kennedy is not extraordinarily conservative relative to all other justices who have served on the court, he is very conservative by the standards of the median justice, who has typically been more of a true moderate.

Statistics to measure justice? Why not. Nothing else works to measure.

Officers alleged to have entered the wrong unit during execution of a search warrant then detaining the occupants for three hours stated a § 1983 claim that overcame qualified immunity. Gomez v. Feissner, 2012 U.S. App. LEXIS 6450 (3d Cir. March 30, 2012) (unpublished):

The Gomezes also claim that Feissner and Zola violated their right to be free from unreasonable seizure by detaining them for three hours during the search of their home. A "seizure" occurs when a government officer, "by means of physical force or show of authority ... restrains the liberty of a citizen." Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). Under clearly established Supreme Court precedent, it is reasonable for officers to seize the occupants of a home while conducting a constitutionally valid search thereof. Michigan v. Summers, 452 U.S. 692, 705 (1981). But this is true only for the duration of the search. When the search if completed, the authority expires. Id. Moreover, under Garrison, it is clearly established that once officers know or should know that they are without authority to continue a seizure, they must end it.

The Gomezes allege that Feissner should have known after fifteen minutes that he had no authority to search their home. It is undisputed that for three hours beyond this point, the Gomezes were involuntarily detained by either Feissner or officers under his command. These allegations suffice to make out a violation of the Gomezes' clearly established right to be free from unreasonable seizure, and Feissner accordingly does not have qualified immunity from this claim.

Note: This case states the obvious. What is galling about it is the defendant police officer arguing with a straight face that he, first, could not only enter the wrong apartment when he was on notice by unit numbers and multiple doorways and satellite dishes, but, second, he could then detain the occupants of the place wrongly searched for three hours for no apparent reason. They should settle and move on, if their position in this case hasn't thoroughly added insult to injury and made trial inevitable. This is the double edged sword of qualified immunity: When the defense loses on qualified immunity, you're only arguing about the damages. This is sufficiently flagrant that punitives should result.

Officers working patrol in a housing project smelled marijuana. They followed the smell and found it coming from an apartment. They knocked on the door and the smell was far stronger. The defendant answering the door admitted to smoking marijuana. There was exigency for an entry to seize the marijuana because they couldn’t practically leave and get a warrant without the marijuana being destroyed. United States v. McMillion, 2012 U.S. App. LEXIS 6434 (3d Cir. March 30, 2012) (unpublished):

Here, the exigency of the circumstances provided the officers with an objectively reasonable belief that a warrantless entry was justified. The officers followed the odor of marijuana to Washington's apartment, knocked on the door and, when Washington opened the door, the odor was even stronger. It was thus reasonable for the officers to suspect that there was ongoing drug activity, and, particularly in light of McMillion's admission to smoking marijuana, it was also reasonable for the officers to conclude that contraband was being destroyed and would continue to be destroyed or removed if they did not act immediately.

Police received a 911 call of shots fired from an alleged AK47 inside a house, and the SWAT team even came. Just before entry, they saw a light go on, and they entered. This was with exigent circumstances there might be a shooting victim inside. Once officers were inside, the court finds defendant consented to a full search of the premises. State v. Johnson, 2012 Ohio 1344, 2012 Ohio App. LEXIS 1170 (8th Dist. March 29, 2012).*

Defendant was approached by an officer at a rest stop because he noticed her taillights flash, suggesting she needed help. He found her OVI. He did not suspect any criminal activity, and there was no apparent need for a community caretaking encounter, so the motion to suppress should have been granted. State v. Clapper, 2012 Ohio 1382, 2012 Ohio App. LEXIS 1189 (9th Dist. March 30, 2012).

Defendant stopped for a lane change violation was in a rented car purportedly rented to his girlfriend, but he didn’t know her last name. That was reasonable suspicion to detain longer. State v. Delossantos, 2012 Ohio 1383, 2012 Ohio App. LEXIS 1192 (9th Dist. March 30, 2012).*

The “consent” search here was not true consent, and the finding of defendant’s money for seizure was a product of that invalid consent. There were no intervening circumstances sufficient to purge the taint. “The Court also finds the constitutional violations that preceded Moser's consent were purposeful and flagrant.” United States v. $28,000.00 in United States Currency, 2012 U.S. Dist. LEXIS 44113 (S.D. Cal. March 29, 2012).*

Officers at the house end of the driveway were in the curtilage when they made their “plain view” of an HCL generator. The government’s alternative argument of knock-and-talk with a PO and LEO led to a “protective sweep,” but the government cannot prove that there was any articulable basis for believing there was somebody armed there. Finally, the court concludes that the PO had reasonable suspicion that defendant was involved in a methamphetamine operation, and that justified entry onto the property. United States v. Wyatt, 2012 U.S. Dist. LEXIS 42725 (W.D. Ky. March 28, 2012).*

Defendant’s guilty plea even waived ineffective assistance claims. [That violates the Sixth Amendment; how obtuse. How can defense counsel agree to a plea agreement that waives IAC? In any rational court, counsel can’t because of a conflict on the potential Sixth Amendment claim.] Wiand v. United States, 2012 U.S. Dist. LEXIS 43793 (N.D. Tex. January 17, 2012).*

Use the comments of this post during this month if you have things you would like to bring to people’s attention and are not sure where else to post them. I’ll make a new Bulletin Board each month for free posting.

Have at it, communicate and keep up the good fight!

Cheers,

-WalterJ

NYTimes: Police Are Using Phone Tracking as a Routine Tool by Eric Licthblau:

Law enforcement tracking of cellphones, once the province mainly of federal agents, has grown into a powerful and widely used surveillance tool for local police officials as well, with hundreds of departments, large and small, often using it aggressively with little or no court oversight, new documents show.

The practice has become big business for cellphone companies, too, with a handful of carriers marketing a catalog of “surveillance fees” to police departments to determine a suspect’s location, trace phone calls and texts or provide other services. Some departments log dozens of traces a month for both emergencies and routine investigations.

Huffington Post: Illinois State Police Drug Dog Unit Analysis Shows Error Rate Between 28 and 74 Percent:

In the course of reporting on the traffic stop of Terrance Huff, HuffPost was able to obtain the reports of an Illinois State Police K-9 unit over an 11-month period in 2007 and 2008. An analysis of those reports shows that only 25.7 percent of the drug dog "alerts" resulted in police finding a measurable quantity of illicit drugs. Just 13 percent resulted in the recovery of more than 10 grams of marijuana, generally considered an amount for personal use, and 10.4 percent turned up enough drugs to charge the motorists or their passengers with at least one felony.

In all, the police dog conducted 252 "sniffs" over the 11-month period, resulting in 136 alerts. The U.S. Supreme Court has ruled that a drug dog's alert is enough to establish probable cause for a warrantless search of a vehicle. Of the 136 alerts, 35 turned up a large enough quantity of drugs to merit an arrest, and 63 turned up what the police officer refers to as "shake," or "residue." The officer didn't send any of those cases to a lab, so it's difficult to know if what the officer found was actually drug residue or, as appears to have been the case in the search of Terrance Huff, likely something else. In 38 cases, or 27.9 percent of the times a dog alert gave cause for a more thorough search, the officer recorded finding no drugs at all. Still, in most of these cases, the officer still notes in the report that the driver or passengers looked to be under the influence of drugs or, somewhat improbably, admitted to him that they were regular drug users. Obviously, there's no way to verify those claims.

Warrant for DNA failed to show probable cause because it was based on mere conclusions. On remand, however, the state is free to use inevitable discovery to validate it. State v. Jenkins, 2012 S.C. App. LEXIS 84 (March 28, 2012):

Nevertheless, the State argues that because this case involves a sex crime, the magistrate could reasonably have inferred the victim was the source of the information. We disagree. The law does not allow the State to justify a bodily intrusion on the possibility that a magistrate made a correct inference as to the source of the information in the affidavit. Rather, "[m]ere conclusory statements which give the magistrate no basis to make a judgment regarding probable cause are insufficient." Smith, 301 S.C. at 373, 392 S.E.2d at 183. Moreover, the complete absence of a source for any of the information makes a variety of scenarios possible. For example, the detective could have pieced together the information from other officers, the victim's neighbors, or even an anonymous tip. This is precisely what the law forbids a magistrate from doing. The magistrate's "action cannot be a mere ratification of the bare conclusions of others." Id. (quoting Gates, 462 U.S. at 239).

Note: One of the benefits of knowing the Fourth Amendment is that you don't file pointless motions to suppress. Most of the time, 95% of the time, the warrant or search is valid. I filed my first motion to suppress in over a year this week on the same ground: The officer alleged it was his opinion that evidence would be found in the place to be searched without any effort to show probable cause connecting it to the crime under investigation saying only "It is the officer's opinion evidence will be found" in a camera and computer. And, warrants failing on this ground get no good faith exception under Leon's third ground.

Police responded to a shooting call, and defendant was outside being patted down and handcuffed saying, “Just help him. Help him,” referring to his adult son Brian Chapman in the house who was shot. The first responders entered and also did a protective sweep for other possible injured, and they saw evidence in plain view. Those officer left briefly, but second responders were called to process the scene. They could enter the premises under the original consent. “California decisions uphold an officer's reentry to seize evidence observed in plain view during a lawful entry but not seized initially because the officer was performing a duty that took priority over the seizure of evidence.” The reentry was valid, and the trial court erred in suppressing the second entry. People v. Superior Court, 2012 Cal. App. LEXIS 369 (2d Dist. March 29, 2012):

Iraq solder was injured by an IED and evacuated stateside for recovery. When he was unconscious, his belongings were inventoried for shipment back with him, and child pornography was found. He was court martialed after recovery at Fort Drum. The inventory was valid under regulation for the injured and dead and MRE 313(c). United States v. Kelly, 2012 CCA LEXIS 103 (Army Ct. Crim. App. March 27, 2012) (unpublished).*