The Automobile Exception, driveways, and cases that start with “C”

The Automobile Exception holds that police may, without a warrant, search an automobile where the police have probable cause to believe that the automobile contains contraband, or fruits, instrumentalities, or evidence of a crime.  The Supreme Court’s leading cases on the Automobile Exception all involve parties whose name starts with a “C”: Carroll v. United States, Chambers v. Maroney, Coolidge v. New Hampshire, Cady v. Dombrowski, and California v. Carney.  Weird.

An interesting Automobile Exception case is now pending before the Court on a cert petition: weirdly, Collins v. Virginia.  It asks whether the Automobile Exception extends to searches of vehicles parked in a private driveway, where no driver or other occupant is immediately present.  (SCOTUSBlog’s page is here).

In Collins, according to the Virginia Supreme Court’s description of the facts, the defendant purchased a motorcycle that was orange and black with an extended frame, modified for drag racing.  On two occasions, a motorcycle matching this description raced past Albemarle County police and was able to evade the officers who gave chase. Police concluded it was the same motorcycle.  Upon investigation, authorities learned that the motorcycle had been sold to Collins, who was told that it was stolen.  While investigating Collins in an unrelated matter, police asked Collins about the motorcycle and he denied knowing anything about it.  His Facebook page, however, contained photos that appeared to show the motorcycle in question.  One of the investigating officers — Officer Rhodes, who had chased the motorcycle in one of the earlier speeding incidents — was convinced that the motorcycle in the photos was the same one that he had chased, but Collins again denied any connection.

After gathering evidence from an informant, the Court explained, Officer Rhodes went to the Charlottesville house that was shown in one of the photos from Collins’s Facebook page.  There the officer saw a white tarp covering what he believed was a motorcycle.  Looking at what was visible beneath the tarp, Officer Rhodes says he “recognized the distinct chrome accents and ‘stretched out’ shape of the motorcycle.”  He walked up the driveway and removed the tarp, finding what he believed to be the motorcycle that had previously eluded him.  He recorded the VIN, ran a search, and learned that it was, in fact, stolen.

Collins, who had not been home, soon arrived.  Officer Rhodes knocked on the door, Collins answered, and during questioning, Collins admitted that he paid $3500 for the motorcycle and knew it had no title.  He was arrested; during the search incident, the motorcycle’s key was recovered from Collins’s pocket. He was prosecuted for receiving stolen property and was convicted.

Collins claims that the search — entering the driveway and removing the tarp — was unconstitutional, absent a warrant, because the Automobile Exception does not extend to vehicles parked in a private residential driveway (it turns out that the home is that of Collins’s girlfriend, but Collins stays in the house several nights a week, according to the cert petition).  He claims a split among the federal circuits, though Virginia claims that Collins exaggerates the split (and says it is not a “genuine” split).

In Carney, the Supreme Court articulated two rationales that justify the Automobile Exception.  First, vehicles are readily mobile.  This ready mobility creates the risk that the automobile may flee and evidence will be lost before a warrant can be obtained.  Carney gives a fairly broad reading to the ready mobility rationale, which seemingly applies to any automobile that is operable (like Collins’s motorcycle).  The ready mobility rationale, though, has a complex history.  In Carroll and Chambers, for example, the cars had been stopped on the highway.  And in Carney, the mobile home at issue was searched while parked in a city parking lot.  But in Coolidge, the Court — in a plurality opinion only — invalidated the search of a car that was initially found in the defendant’s driveway but then towed to the police station.  The Court found it significant that there was some delay in the search and that it was initially found unoccupied on private property.

Coolidge thus lends some tepid support to Collins’s petition.  So, too, does language from Carney, which says that the doctrine applies where “a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes.” (emphasis added).

One potential argument here is that the ready mobility rationale is something of a legal fiction.  A car, or motorcycle, may be “readily” mobile with the turn of a key, but the fear of the automobile fleeing, or of evidence becoming elusive, cannot be realized unless a person is there to operate the vehicle.  Compare this to the rule from Belton v. New York, which held that a search of a vehicle’s passenger compartment as incident to arrest was automatic with the arrest, even if the arrestee was secured and the vehicle was not actually within his grabbing area (the Court modified that rule in Arizona v. Gant).

One could argue, then, that the ready mobility rationale should apply only where a person is immediately present at the vehicle — such as when stopped on a highway, or when a police meet a person at the car, even on a private driveway — or there is otherwise a reasonable probability that the vehicle could be set in motion.  In other words, Collins might argue, a vehicle is not “readily capable” of use on the highways unless someone is present to drive it.  But this would likely work some change in the current understanding of ready mobility after Carney.  It also would arguably undermine the function of the rationale: the ready mobility of a vehicle in the abstract is enough to justify searching it even if no driver is present, because if the police must wait for a warrant, someone could come along and take the vehicle away before the warrant can be obtained (for example, if Officer Rhodes had to wait for a warrant, Collins could have driven the motorcycle away and disposed of it).

The second rationale for the Automobile Exception is that people have a reduced expectation of privacy in automobiles.  Even if a vehicle is not readily mobile, the Court said in Carney, “the lesser expectation of privacy” justifies the Automobile Exception.  This would be true even if the vehicle is in a residential driveway, though not in a garage.  Perhaps this is why, as the Commonwealth notes in its response, some commentators have interpreted the Carney “regularly-used-for-residential-purposes” language as applying to garages but not to driveways.

Collins’s best argument as to this rationale would seem to be that the expectation of privacy, even if ordinarily diminished, is at least heightened when the vehicle is in a garage or other interior structure associated with the home, or where the vehicle is within the curtilage of the home (including, as Collins argues, the driveway), given the protection afforded to the curtilage in other Fourth Amendment contexts.  Still, though, the curtilage is not free from law enforcement observation (see the aeriel surveillance cases, e.g., California v. Ciraolo), nor is it free from law enforcement entry within the scope of an implied license.  See Florida v. Jardines.  The question is whether law enforcement, even with a license but without a warrant, may enter the curtilage and remove a tarp from a covered automobile for purposes of positively identifying it.

Collins’s battle is likely an uphill one, and there are sound reasons for keeping the Automobile Exception’s reach robust.  But the Court has, in recent terms, extended some Fourth Amendment protections.  And this case raises enough open questions about the Automobile Exception that the Court could supply some needed clarity by granting cert.

Or, perhaps, the Court might simply like to add another “C” case to its Automobile Exception jurisprudence.

 

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Suspected thief turns out to be felon in possession, but gun turns out to be inadmissible

Sometimes a federal gun possession crime results from an investigation specifically directed at the gun offense.  Sometimes, however, gun crimes result from investigations that have nothing to do with guns.  Just ask Phillip David Hernandez, who had an encounter with police as he walked next to a construction site that was located in a high-crime area and that was known for being the target of thieves interested in the construction materials there.  Did the police encounter turn up any stolen construction materials?  Nope.  It turned up a gun – which, as a convicted felon, Hernandez was not permitted to possess.  His case raises the question: was he “seized” for purposes of the Fourth Amendment when police questioned him from their patrol vehicle as he walked near the construction site?  If not, then the gun is admissible against him because the encounter is a “consensual” one, and does not implicate the Fourth Amendment.  But if it was a seizure, then the police have to demonstrate reasonable suspicion for the stop.  Can they?

According to the Tenth Circuit’s opinion in United States v. Hernandez, in October 2014, Denver police spotted Hernandez walking next to the construction site.  He wore all black clothing and carried two backpacks.  The site had been the subject of recent thefts of various materials, including sheet metal and copper piping.  Police suspected Hernandez might be serving as a lookout for thieves, though there was no one else around.  The officers also found it odd that Hernandez did not use the sidewalk on the other side of the street, but instead walked next to the construction area, essentially in the street.

When the officers pulled alongside him, Hernandez kept walking, and the officers followed along in a moving vehicle.  They did not display weapons nor raise their voices.  When asked where he was going and where he had been, Hernandez said he was at his grandmother’s and was headed home.  He then said, upon being asked, that he could not remember his grandmother’s address.  When asked if he would stop walking and talk to the officers, Hernandez complied.  When asked, he gave his real name but a false birthdate.  The officers pulled up his information on their computer, and it showed Hernandez’s mug shot and that he had violated parole, for which there was an active warrant.  He was informed of the warrant and approached by the officers on foot, and he began to walk away.  He reached for his waistband and an officer asked if he had a gun.  He said “yes,” the officer grabbed his arm, and a revolver fell to the ground.

Hernandez was indicted for being a felon-in-possession, 18 U.S.C. 922(g)(1), and filed a motion to suppress, which the district court granted.  The Government appealed.  The Tenth Circuit affirmed the suppression of the gun.

Was Hernandez seized?  Yes, this was a seizure that required reasonable suspicion, according to the court.  While this began, as do many police encounters on the street, as a consensual encounter that required no justification, it became a seizure when the officers asked Hernandez to stop walking and talk to them.  This was the point at which a reasonable person would not have felt free to terminate the encounter and continue on his way – considering that that it was dark, there were no other people around, and the request to stop was made by two uniformed officers who had been following him.  As the court put it, “a reasonable person would have believed that compliance with the ‘request’ was not optional.”

Now that we know he was seized, was there reasonable suspicion that would have justified the seizure?  No, the court said.  The police stop of Hernandez was, rather, based on “inchoate suspicions and unparticularized hunches,” the court wrote.  They had no evidence specific to Hernandez that he had committed any crime, and the mere fact that he was walking next to a location that had been the subject of previous criminal activity is not enough to make their suspicion of him reasonable.  Neither was the fact that he was in a “high-crime” area, or that he wore all black and had two backpacks, or that he chose not to use the sidewalk.

What about the fact that he could not recall his grandmother’s address?  The court found that the Government had not relied upon this argument previously, and should not be able to rely upon it now on appeal.  Still, that fact would not be entitled to much weight, the court said.  When each officer testified, neither relied upon this fact to establish their suspicions about Hernandez, “which,” the court said, “is understandable because ordinary experience tells us that a grandchild who knows the familiar way to his grandmother’s house may well not know her exact street address.”

A final aspect of this case is notable.  Could the Government have argued that the finding of the gun was sufficiently attenuated from the initial unlawful stop, given the existence of the active warrant for Hernandez, a la Utah v. Strieff?  Recall that in Strieff, the Court applied the attenuation doctrine to hold that the discovery of an untainted warrant breaks the link to an unlawful Terry stop.  As it happens, Strieff was decided after briefing and argument in Hernandez.  But the Government never relied on attenuation in the district court, and so had waived that argument on appeal.  Before Strieff had been decided, the Tenth Circuit noted, two other circuits followed the same rule that was ultimately recognized by the Supreme Court in Strieff.  So the attenuation argument was available to the Government, but the Government did not pursue it.

Query whether, had the attenuation argument been properly before the Tenth Circuit, Strieff would make the gun admissible.  Applying the Brown factors, as did Strieff, the Government would have had a persuasive argument that the discovery of the warrant here was an intervening circumstance that makes the gun admissible.

Gun rights, criminal law enforcement, and Justice Thomas

The officer-involved shootings in Baton Rouge and Minnesota last week – combined with the premeditated, cold-blooded murders of five Dallas Police officers, with a firearm – remind us once again of the complicated legal and political issues created by gun violence.  In Dallas, it is notable that the killer did not target vulnerable people in a gun-free zone; he targeted law enforcement officers in public that he knew were armed, and trained to kill with their own guns.  In Baton Rouge and Minnesota – where we are still learning additional facts, making it premature to draw definite conclusions about the legality of the official conduct there – the legal issues are potentially even more complex because they concern the intersection of gun rights and Fourth Amendment law.  I have posted previously (here and here) on the Fourth Amendment issues being created by the liberalization of gun laws around the country.  One persistent problem involves the ways in which a broad reading of gun rights, combined with an accordingly narrow reading of search of seizure powers, could place law enforcement officers in the untenable position of knowing that a person is armed but lacking the power to temporarily detain and disarm them, absent some additional reasonable suspicion beyond the fact that the person is armed.

With that in mind, I want to shift to an interesting but slightly different gun rights problem, one that Justice Thomas raised at the end of the Supreme Court’s term.  In his dissent in Whole Woman’s Health v. Hellerstedt, the Texas abortion law challenge, Thomas writes that, “[t]he Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution.  But our Constitution renounces the notion that some constitutional rights are more equal than others.”  He continued, “[u]nless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear.”

I am not sure to what he is referring when he speaks of “many” enumerated rights being disfavored, but I am confident he is referring to one in particular: the Second Amendment right to keep and bear arms.  I have such confidence because on the same day, in Voisine v. United States, Justice Thomas offered an even more comprehensive criticism of what he views as the disfavored nature of Second Amendment rights.  In Voisine, Thomas – speaking only for himself, as Justice Sotomayor joined only the first two parts of his dissent, but not Part III – explains that the federal law at issue has the effect of imposing a broad disability on gun ownership, a decision that is left to the discretion of federal and state prosecutors.  “We treat no other constitutional right so cavalierly,” he said, explaining  that a majority of the Court would likely not approve of a law that imposed a lifetime ban on publishing by a person convicted of misdemeanor libel.  He also repeated a line that he used previously in dissenting from the denial of certiorari in a Second Amendment challenge, saying that “the Court continues to ‘relegate the Second Amendment to a second-class right.'” (quoting his dissent in Friedman v. Highland Park).

What was especially notable about his Voisine dissent, though, was his observation about the limits on gun rights.  He acknowledged the limitations described in District of Columbia v. Heller, and appeared to concede that gun rights are not absolute.  But then he noted the broad disabilities approved in Heller – presumptively valid prohibitions on possession by dangerous persons, specifically felons and the mentally ill – and described this as merely dicta.  Apparently, Thomas would approve of narrow gun regulations that “neither prohibit nor broadly frustrate” the exercise of Second Amendment rights.  But the disabilities placed upon felons and the mentally ill, for example, are so broad that they would be valid only when applied to those who are not the “people” protected by the text of the Second Amendment.

Is Justice Thomas suggesting that the firearm possession prohibitions in 18 U.S.C. 922(g) – which impose broad disabilities on a wide variety of citizens, from felons to the mentally ill to unlawful drug users to persons dishonorably discharged from the armed forces to persons convicted of misdemeanor crimes of domestic violence – are unconstitutional?  Is he suggesting that one of the most important gun regulations in the federal criminal law arsenal – the felon-in-possession law – is invalid?  That strikes me as a remarkable position to take, especially in light of the fact that Thomas joined the Heller majority opinion.  But Thomas’s description of this language in Heller as mere dicta, and his concern that these kinds of gun regulations sweep so broadly as to forbid firearms possession “at all times and in all places,” certainly suggests that Thomas is thinking in these terms.

I will be interested in seeing whether future constitutional challenges to the 922(g) prohibitions make use of Thomas’s language from Voisine.  I cannot imagine there are any other votes on the current Court for such a reading of the Second Amendment.  Such a reading would surely frustrate the enforcement of much federal criminal law, and runs counter to the claims of many gun rights advocates who say they still want to “keep guns out of the hands of criminals” and other dangerous people.  Perhaps this is not what Thomas was getting at.  And perhaps he would approve of similar gun possession bans that are narrower in scope (say, a ban for a definite time period).  But his language seems at least to be a nod in the direction of Second Amendment rights that are broader than those recognized in Heller.

Thoughts on Birchfield: search incident okay for breath, but not for blood

On a busy Thursday at the Supreme Court, the decisions on affirmative action and the President’s immigration executive order overshadowed an important Fourth Amendment case, Birchfield v. North Dakota (and a somewhat less important Armed Career Criminal Act case, Mathis v. United States).

In an effort to combat the national scourge of drunk driving, every state has implied consent laws that govern the refusal of a BAC test upon suspicion of drunk driving.  That is, when a person obtains a license and uses public thoroughfares, they are deemed by the state to have implicitly consented to having their BAC tested.  Many states impose civil or administrative penalties (e.g., license suspension) for refusing such a test.  Several states, though – including North Dakota and Minnesota – go further and make it a crime to refuse such a test after the person has been arrested for a drunk driving offense.

When a person is subjected to a lawful arrest, the police may search the arrestee’s person, any items or containers associated with the person, and anything within the arrestee’s grabbing area or wingspan.  See Chimel v. California; Robinson v. United States.  If a person is arrested upon a traffic stop or after being inside a car, police may then search the passenger compartment of the vehicle if the arrestee is left unsecured and the passenger compartment is within his literal grabbing area, or if there is reason to believe evidence relevant to the crime of arrest will be found inside.  See Arizona v. Gant.  But in Riley v. California, the Court held that the search incident doctrine does not extend to the contents of cell or smart phones, finding that a balancing of the privacy and governmental interests favored the requirement of a warrant.  Using a similar analysis, the Court this week held that the search incident doctrine permits a state to require a person – on pain of criminal penalty if he refuses – to take a breath test after being arrested for a drunk driving offense.  Breath tests, the Court repeated, “do not ‘implicate significant privacy concerns.'”  (quoting Skinner v. Railway Labor Executives’ Assn.).  But, the Court said, “[b]lood tests are a different matter.”  The Fourth Amendment does not allow the state to criminalize the refusal to take a blood test.  Blood tests are substantially more invasive than breath tests, and so the individual’s interests – like those in Riley – militate in favor of mandating a warrant for blood, absent some other legal justification.

The Court also examined whether the blood test refusal statute could survive based not on the search incident doctrine, but on the consent doctrine.  Consent to a search, when voluntary, makes the search per se reasonable under the Fourth Amendment.  The Court, however, held that the consent doctrine did not justify requiring consent to a warrantless blood test, at least where the refusal amounts to a crime.

This, I think, is an important point.  The Court did not consider the constitutionality of these implied consent laws generally.  That issue was not before the Court, and Justice Alito’s opinion stated that the Court had cited these laws approvingly in other cases (though those are cases that did not themselves consider the constitutionality of implied consent as a Fourth Amendment matter).  He further said that nothing in Birchfield should be read to cast doubt on these laws.  Rather, Justice Alito was content to simply hold, more narrowly, that a criminal penalty for refusal went beyond what the Fourth Amendment would permit, saying simply that there must be “a limit” on the consequences to which a person consents when they drive on public roads.  Presumably, then, it is unreasonable to imply consent to a blood test and to criminalize refusal to do so merely because the person uses public roads.

But the Court’s holding on this point was terse and lacked much explanation.  Is this the only “limit”?  Why would implied consent to a blood test be invalid when there is a criminal penalty, but the very same conduct constituting implied consent would be valid consent when the State simply takes away one’s license?  In other words, what – for purposes of interpreting the Fourth Amendment – is the difference between criminal penalties and civil or administrative penalties when it comes to refusing consent to a blood test?  I wonder whether these implied consent laws with non-criminal consequences are ripe for a Fourth Amendment challenge at the Court, notwithstanding Birchfield’s observation that nothing in the case “should be read” as making implied consent laws constitutionally dubious.

Which brings me to another takeaway from Birchfield.  For those wondering about the scope of the case, remember that it applies only in the context of a search incident, i.e., where there is an arrest.  If a driver is pulled over and subjected to a BAC test before being arrested, Birchfield does not govern.  It is in these situations that the state would have to rely upon either consent doctrine or exigency to justify the demand for a test.  We know from Missouri v. McNeely that the natural metabolization of alcohol in the blood does not amount to a categorical exigency, but rather must be judged case-by-case.  And if the exigency could not be established, that would leave consent as the basis for a warrantless search, which brings me back to my previous point about whether treating this as implied consent is constitutionally valid under the Fourth Amendment.

For readers interested in federal criminal law specifically, the Court will likely issue its decisions in McDonnell and Voisine on Monday.  We also expect to see the Court’s ruling in Whole Women’s Health, the Texas abortion restriction case.

 

A response to Justice Sotomayor

In yesterday’s post focused on Taylor, I mentioned that I would return to the Court’s decision in Strieff.  Seeing what others have now said, I have nothing to say on the case generally that has not already been said by them.  So I commend to readers both Kent Scheidegger’s post at C&C and Orin Kerr’s post at SCOTUSBlog.

I write simply to respond to the powerful language used by Justice Sotomayor in her Strieff dissent, which has received substantial media attention.  In Part IV of her opinion, she writes eloquently about the humiliation that comes with being stopped and investigated by law enforcement authorities, and she catalogues the many indignities that the Court has approved in its Fourth Amendment cases.  She is certainly right about the profound effects that law enforcement inquiry can have upon the individual, and upon the citizenry in a free society.  She even refers movingly to “The Talk” that generations of black and brown parents have had to give their children: “instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger – all out of fear of how an officer with a gun will react to them.”  But she goes further – much, much further – leaving the realm of social and racial justice and making sweeping allegations about the consequences of the Court’s decision.

Justice Sotomayor writes, “[b]y legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time.  It says that your body is subject to invasion while courts excuse the violation of your rights.  It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be catalogued.”

I think she overstates her case.  I can appreciate the hyperbole for the purpose of making an important point about freedom from an authoritarian government, but I would argue that this case is not quite as she describes it.  This is not a case about whether the initial police conduct that led to the discovery of the outstanding warrant was constitutionally permissible – everyone agreed that the officer’s conduct violated the Fourth Amendment.  The question was simply whether the subsequently obtained evidence was subject to exclusion in a criminal case.  Even though the Court said it was not subject to the exclusionary rule, this was based on the good faith mistakes of the officer and, ultimately, satisfaction of the Brown v. Illinois factors that Justice Thomas described.  In a future case, involving the kind of authoritarian police action about which Justice Sotomayor is rightly worried, the officer might not be acting in good faith – Strieff does not countenance an officer’s effort to evade the Fourth Amendment by deliberately stopping a person without appropriate legal justification – and the Brown factors might not be satisfied.  I do not understand the Strieff majority to have abandoned case-by-case analysis on this issue, and even Justice Thomas’s opinion notes that in some cases, the police conduct may be sufficiently flagrant to warrant exclusion.

Moreover, because this case was about the exclusionary rule and not the substance of the Fourth Amendment, the aggrieved citizen that Justice Sotomayor describes could still have a legal remedy, under some admittedly narrow circumstances.  First, there is the possibility of a civil rights action against the officer or municipality, though this would depend upon whether there is a valid criminal conviction, whether the officer gets immunity, and whether there is a municipal custom, policy, or practice alleged.  Furthermore, if Justice Sotomayor is concerned about officers using these kinds of stops in racially discriminatory ways, the suspect still has the benefit of the Equal Protection Clause, rather than the Fourth Amendment.  See Whren v. United States.  The equal protection claim is not an easy one to make (it requires a showing of purposeful discrimination, rather than mere disparate impact), but it exists separate and apart from the Fourth Amendment claim.  Justice Sotomayor does not discuss civil rights remedies, though they are narrow, nor the Equal Protection Clause in this portion of her dissent.  Perhaps, though, this is the natural result of making the exclusionary rule – unknown, as Kent explains, to the Framers of our Fourth Amendment – the focus of Fourth Amendment remedies.

I therefore think that Justice Sotomayor, while eloquent and compelling in Strieff, overstates her position by implying that the citizenry is now left wholly unprotected in these situations by the Constitution and laws of this country.  I think that is not fully accurate, though I understand her concerns and I acknowledge that other legal remedies (e.g., a civil rights action) might be difficult to obtain or so anemic or burdensome as to be unworthy of pursuing.  The chief argument against the exclusionary rule, however, is not – and has never been – that other remedies are perfect.  I would also note (as does Kerr) that although Justice Ginsburg joined the other parts of the Sotomayor dissent, she did not join Part IV.  In this portion of the dissent, Justice Sotomayor spoke only for herself.

 

Supreme Court decides Taylor: knowingly robbing a drug dealer of drugs or proceeds satisfies Hobbs Act

After a long week of business travel, I’m ready to begin posting again and wanted to begin with some observations on the (in my view) egregious treatment given to Dustin Johnson yesterday at Oakmont by the United States Golf Association.  Fortunately, DJ played sterling golf down the stretch, mooted the consequences of the USGA’s concerns, and (implicitly, of course) gave the USGA a big ol’ middle finger with a dramatic birdie at 18 to widen his margin of victory in the U.S. Open.  But I have been thinking about doing some posts on what the rules of sports can learn from rules of law, and the Johnson-ball-moving controversy supplies an excellent subject for such a post (as would the almost equally egregious treatment DJ received from the PGA of America at Whistling Straits back in 2010, robbing him of his place in the playoff for the PGA Championship – I’m sure I want to revisit that, too).

But that commentary will have to wait.  More immediately, it was a big day at the Supreme Court for federal criminal justice.  Nothing shocking, but three cases announced today each have some significance for prosecutors and defense lawyers.

The Court decided Taylor v. United States.  I posted on Taylor earlier in the year (here).  Predictably, the Court, per Justice Alito, held that the jurisdictional element of the Hobbs Act, 18 U.S.C. 1951, is satisfied merely by showing that the defendant knowingly robbed a drug dealer of drugs or drug proceeds.  The opinion was short, and found that any questions about the scope of the jurisdictional element were governed by Gonzales v. Raich.  Because Congress has the authority to regulate the intrastate possession, manufacture, or distribution of controlled substances, it follows that Congress can criminalize the intrastate theft of controlled substances.

Three items from Taylor are noteworthy.  First, Justice Alito’s opinion accepted, for purposes of this litigation, the holding from Stirone v. United States that the Hobbs Act employs the full scope of congressional commerce power.  Justice Alito does not defend this proposition with any additional language, but simply says the “expansive language of the Act” cannot be interpreted otherwise.  But that is exactly the problem: the expansive language of the Act.  Had Taylor placed before the Court the question of whether the wording of the jurisdictional element was consistent with the Court’s Commerce Clause cases since 1995 (Lopez), and not 1960 (Stirone), I think Justice Alito would have had to defend the scope of the Hobbs Act more decisively.  My view is that these drug robbery cases are the somewhat easy cases, because of Raich; far more difficult applications of the jurisdictional element involve other kinds of robberies, ones that do not involve subject matter already covered by a Court decision on the scope of the Commerce Clause (e.g., robbery of, say, a local convenience store, or a home-invasion robbery of a person who also owns a small business).  Justice Alito seems to acknowledge this by limiting the holding to drug dealer robberies, and perhaps that very sentence will encourage challenges to the scope of the jurisdictional element in other robbery cases that do not involve drug dealers.

Second, Justice Alito acknowledges Justice Thomas’s lone dissent.  Justice Thomas was largely echoing concerns he has raised for twenty years about the Court’s Commerce Clause jurisprudence, and because he could not muster majorities in the previous Commerce Clause cases in which he wrote separately to express his views on Commerce Clause originalism, it is unsurprising that he is speaking for himself here, as well.  But Justice Alito then says “we have not been asked to reconsider Raich.  So our decision in Raich controls the outcome here.”  Fair enough.  But what if the Court had been asked to reconsider Raich?  I’m not sure this matters much, as I think Justice Alito (and the Chief Justice) would be highly unlikely to undo Raich.  Even if that question were before the Court, Justice Thomas would likely be writing for himself (after all, he is the only Raich dissenter who is still on the Court).

Finally, the majority opinion says the Hobbs Act is satisfied if the defendant “knowingly stole or attempted to steal drugs or drug proceeds.”  I read this as requiring proof of knowledge as to the derivation of the items sought.  But what if the defendant robbed a drug dealer and did not know the person was a drug dealer?  Or, what if the defendant knowingly targeted a drug dealer but stole items not derived from the sale of drugs (such as, for example, expensive jewelry that the victim bought with salary from legitimate employment)?  The Court’s language here could invite additional litigation in these cases on the question of where the money to purchase the stolen items came from –  legitimate sources or drug trafficking?

The Court today also decided RJR Nabisco v. European Community (here), which held that in civil RICO litigation, RICO does not apply extraterritorially unless Congress expressly makes it so.  Because civil RICO decisions can affect the scope of criminal RICO prosecutions (each kind of action derives from the same body of statutory law), I will think more about how important this case may (or may not) be in future criminal RICO cases.

And the Court decided Utah v. Strieff (here), holding that the exclusionary rule does not apply where an unconstitutional Terry stop leads to the discovery of an outstanding warrant, the arrest for which turns up drug evidence.  The discovery of the outstanding warrant, the Court held, breaks the chain of causation between the initial illegality and the seizure of the evidence.  I’ll have more to say on Strieff in a future post.

Important Second Circuit decision on executing arrest warrants and the Payton/Steagald dilemma

Last month, I posted on the important Fourth Amendment question regarding the standard for determining whether police have “reason to believe” a suspect is inside a particular residence, for purposes of executing an arrest warrant pursuant to Payton v. New York.  The United States Court of Appeals for the Second Circuit recently issued an important ruling on this and a related question, though in a slightly different factual context.  The opinion in United States v. Bohannon is here.

Law enforcement in Bridgeport, Connecticut had been investigating the Trumbull Gardens Organization (TGO) for narcotics and gun trafficking.  They had an arrest warrant for Jonathan Bohannon, and believed that he was at the home of Shonsai Dickson.  Her home was at 34 Morgan Avenue, though Bohannon lived at 103 Crestview Drive – two miles separated the residences.  FBI Special Agent Zuk made this determination based on several pieces of information provided by other law enforcement sources.

As the court described the information: 1) visual surveillance gave no indication that Bohannon was at his own home; 2) cell-site data from Verizon Wireless showed that his cell phone was used in a location that did not include 103 Crestview Drive; 3) cell-site data showed inactivity after 2:38 a.m., which led Agent Zuk to conclude that Bohannon had retired for the night somewhere other than his home; 4) the cell-site data showed only one address to which Bohannon had been linked, which was the Morgan Avenue home; 5) Dickson was known to the FBI because she was the lessee on an apartment where TGO members sold heroin; 6) visual surveillance showed a car registered to Dickson parked in front of Bohannon’s home only two weeks earlier; and 7) law enforcement saw Dickson’s car parked outside of the Morgan Avenue home on the day of the planned arrest.

Agents had an arrest warrant for Bohannon, but no warrant of any kind for Dickson.  They entered Dickson’s home through an unlocked door, found Bohannon in Dickson’s bedroom, and arrested him.  Later, and eventually with Dickson’s consent, agents seized crack cocaine and cash from under her bed; more crack cocaine, money, and a scale from a dresser; and three firearms and ammunition from a closet.  The court also noted that Bohannon helpfully shouted, “it’s all mine, don’t worry about it.”

Bohannon was indicted on a variety of federal drug and gun charges.  He moved to suppress the evidence seized from Dickson’s home and car.  The district court agreed in part and suppressed the evidence obtained inside the apartment (though not the car, holding that Bohannon had no reasonable expectation of privacy there).

On a pre-trial appeal by the Government, the Second Circuit vacated the suppression order.  The court agreed with the district court that no search warrant was necessary.  Recall that in Payton, the Supreme Court held that an arrest warrant is required to arrest someone in the home, absent exigency or consent, and where there is reason to believe the suspect is within.  A search warrant is not required under those circumstances.  A search warrant is required, however, when police wish to enter the home of a third-party, because the third-party’s interests would not be adequately protected by the arrest warrant for the suspect.  See Steagald v. United States.

Here, the agents violated Dickson’s rights under Steagald.  But Dickson is not the complaining party here; Bohannon is.  And the Supreme Court has never decided whether the subject of the arrest warrant (here, Bohannon) can object under Steagald; if not, then only the third-party (here, Dickson) can do so.  The Second Circuit therefore decided that issue and, consistent with the holdings of eight other federal circuits, held that the subject of the arrest warrant cannot invoke the protections of Steagald.

Having held that Payton, and not Steagald, applies, the court proceeded to determine whether the agents had “reason to believe” that Bohannon was at the Morgan Avenue home.  Recall that in my previous post on this subject, the Third Circuit concluded that “reasonable belief” equates to “probable cause.”  But I also noted that a few circuits had concluded otherwise, saying that the standard is less than probable cause.  The Second Circuit is one of those minority circuits, and here held that on this lesser standard, the agents had sufficient reason to believe that Bohannon was there.  Citing the information available to the FBI, the court said “the totality of these facts easily elevated such a suspicion well above the level of a hunch. Viewed in their totality, and in a commonsense manner, the record facts provided an articulable, objective reason to believe Bohannon might then be present in Dickson’s apartment.”

As I indicated previously, there is such a significant split of authority on the “reason to believe” standard that I am confident the Supreme Court will be presented with the opportunity to resolve the split.  Moreover, the Bohannon case would present the Court with an additional opportunity to resolve the uncertainty over whether the subject of an arrest warrant can claim the protections of Steagald.  This is essentially a standing problem (or what used to be viewed under the “standing” nomenclature).   The question is whether the suspect (the subject of the arrest warrant) can assert the protections of a case that was designed to protect the interests of the third-party in whose home he is found.  The Second Circuit here said the suspect has no greater rights in the third-party’s home than he does in his own home, where a search warrant would not be necessary (given the arrest warrant, see Payton).

One might argue that in light of the fact that social guests have reasonable expectations of privacy in the home of their host, they should be able to claim the heightened protections of Steagald.  But why should this fact matter?  The suspect also has an expectation of privacy in his own home, yet is not entitled to the protections of a search warrant there as long as a valid arrest warrant exists.  In other words, the arrest warrant suffices to protect the suspect regardless of his location.  As Steagald recognizes, the same cannot be said of the third-party in whose home the subject is found or in whose home the police are looking.  I think there is therefore substantial merit in the Second Circuit’s holding in this regard, though I also think it is worthy of clarification from the Supreme Court.