Supreme Court cases 2011-2012 term.
During the current term, the Supreme Court decided cases of
importance to law enforcement, including those involving procedure,
, wills, and real property; the essential substance of rights under law.
, and law enforcement liability. In one case with
immediate consequences, the Court ruled that attaching a
see navigation satellite.
Global Positioning System (GPS)
Precise satellite-based navigation and location system originally developed for U.S. military use.
(GPS) device on the undercarriage of a car
constituted a Fourth Amendment search. The Court elaborated further on
the role of Miranda in interviews occurring in a prison setting, as well
as the government’s duty to produce potentially
under Brady. In a civil suit against law enforcement officers,
the Court addressed the proper role of
the law was clearly defined at the time the government acted. Also, the
Court struck down a substantive criminal statute as being violative of
the First Amendment.
This article provides a brief synopsis of each of these cases, as
well as a summary of cases of interest to law enforcement that the
Supreme Court has agreed to hear in the 2012-2013 term. As always, law
enforcement agencies must ensure that their own state laws and
constitutions have not provided greater protections than the U.S.
officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world’s third largest country in population and the fourth largest country in area.
v. Jones, 132 S. Ct. 945 (2012)
In this case the U.S. Supreme Court revived the doctrine that a
physical intrusion by the government into a constitutionally
for the purpose of gathering information is a Fourth Amendment
search, a principle most courts had considered subsumed by the
reasonable expectation of privacy standard. As part of a drug conspiracy
investigation, officers obtained a warrant from the U.S. District Court
District of Columbia
federal district (2000 pop. 572,059, a 5.7% decrease in population since the 1990 census), 69 sq mi (179 sq km), on the east bank of the Potomac River, coextensive with the city of Washington, D.C. (the capital of the United States).
to install a tracking device on a vehicle
used by Jones but registered to his wife. The tracking device was to be
placed on the vehicle within 10 days. Eleven days after the court order
was issued, officers placed the GPS device on the vehicle while it was
in Maryland. (1) The device provided officers with 2,000 pages of
location data over the next 4 weeks. Jones’
motion to suppress
n. a motion (usually on behalf of a criminal defendant) to disallow certain evidence in an up-coming trial. Example: a confession which the defendant alleges was signed while he was drunk or without the reading of his Miranda rights.
GPS information was denied; he was convicted and then appealed. The
court of appeals reversed the conviction, finding the warrantless use of
the GPS device in violation of the Fourth Amendment. (2) The appellate
court held that the use of the GPS device was a search where Jones had a
reasonable expectation of privacy in his movements over an extended
period of time. (3)
The U.S. Supreme Court unanimously agreed that the use of the GPS
was a search under the Fourth Amendment, but filed separate opinions
with divergent reasons in support of that conclusion. The majority
opinion written by Justice Scalia relied on an
The belief that the U.S. Constitution should be interpreted according to the intent of those who composed and adopted it.
interpretation finding the vehicle to be an “effect” within
the meaning of the Fourth Amendment and the attachment of the GPS device
to a vehicle by government agents to gather information to be a trespass
and, therefore, a search within the meaning of the Fourth Amendment.
“The Government physically occupied private property for the
purpose of obtaining information. We have no doubt that such a physical
intrusion would have been considered a ‘search’ within the
meaning of the Fourth Amendment when it was adopted.” (4) The
opinion expresses that the original theory of governmental trespass as a
basis for a Fourth Amendment violation had not been replaced by the
theory of “reasonable expectation of privacy” developed in
United States v. Katz. (5) In Katz the court found that the government
had violated the Fourth Amendment by placing without a warrant a covert
microphone on a public phone booth to
v. o·ver·heard , o·ver·hear·ing, o·ver·hears
To hear (speech or someone speaking) without the speaker’s awareness or intent.
telephone conversation. Katz and cases following it expanded the
protection of the Fourth Amendment beyond “persons, houses, papers
and effects” (as expressly listed in the Fourth Amendment) and held
that the amendment protected people and their reasonable expectation of
privacy in less concrete matters, like conversations, telephone calls,
Prior to Jones several federal circuit court decisions held that
people had no reasonable expectation of privacy in the movement of their
vehicles on public streets because those actions are readily observable
by anyone–including the government–and, therefore, use of a GPS device
to monitor a vehicle’s movement on public streets did not violate
any reasonable expectation of privacy. (6) In each of those cases, the
courts held that the act of the physical installation itself of a
slap-on or magnetic GPS device on the vehicle did not independently
constitute a search under the Fourth Amendment. Jones overrules such
decisions when placing a tracking device on the vehicle requires a
physical touching of the vehicle with the intention of gathering
information. The Court did not
prior decisions where the
tracking device already was in place before the subject took possession
of the object to be tracked because there was no trespass. (7) In
addition, the decision leaves open the question of the constitutionality
of electronic tracking, which is feasible by nonphysical means, such as
monitoring a subject’s movements through
emitted by a
subject’s cellular telephone. (8)
Justice Sotomayor joined with the majority opinion in holding that
here the physical
Formal to take unfair advantage of (someone’s friendship, patience, etc.):
a constitutionally protected
“effect” (the vehicle) constituted a Fourth Amendment search,
but filed a
agreeing with Justice Alito’s
that long-term GPS monitoring would infringe on an
individual’s reasonable expectation of privacy. Justice Sotomayor
also expressed that in other cases not involving physical intrusion, the
Katz approach should be applied given concern regarding data aggregation
and government accumulation of information. Justice Sotomayor stated,
“More fundamentally, it may be necessary to reconsider the premise
that an individual has no reasonable expectation of privacy in
information voluntarily disclosed to third parties. This approach is
to the digital age, in which people reveal a great deal of
information about themselves to third parties in the course of carrying
out mundane tasks.” (9)
Justice Alito filed a concurrence in the result, joined by three
other justices, but believed the case should be decided by applying the
Katz reasonable expectation of privacy analysis. Alito reasoned that the
long-term monitoring of the movement of Jones’ vehicle violated his
reasonable expectation of privacy. Alito’s opinion indicates the
reasonable expectation of privacy analysis would encompass all types of
physical surveillance with cars
and aircraft, as well as tracking, which could be achieved remotely as
opposed to the need to physically intrude into a protected area. It also
indicates the expectation that how long citizens can be followed would
differ based on the offense being investigated. While not setting down a
matrix of what time limits would be allowable, Justice Alito indicated
that 28 days was too long in this drug investigation.
This case was decided based on simple trespass analysis. However,
five justices signaled readiness to expand the protections of the Fourth
Amendment in future cases to limit government collection and aggregation
of publicly available information where such efforts may violate the
public’s reasonable expectation of privacy.
Howes v. Fields, 132 S. Ct. 1181 (2012)
Defendant Fields was serving a sentence in a Michigan jail where he
was questioned by sheriff’s deputies about alleged child sex abuse
unrelated to the crimes for which he was incarcerated. Fields was
brought from the general population into a separate section of the
facility and put in a conference room with the deputies. The deputies
did not read Fields his
n. the requirement set by the U. S. Supreme Court in Miranda v. Alabama (1966) that prior to the time of arrest and any interrogation of a person suspected of a crime, he/she must be told that he/she has: “the right to
, but did advise him at the
beginning and at several other times during the 5 to 7 hour interview
that he was free to leave at any time and return to his cell. Fields was
not handcuffed or restrained, and the door to the room sometimes was
open and sometimes closed. At no point did Fields indicate that he
wanted to return to his cell. He eventually confessed, and at the
conclusion of the interview, he had to wait 20 minutes while a guard was
called to return him to his cell.
The Sixth Circuit Court of Appeals applied a categorical rule in
concluding that his statements should be suppressed, holding that a
prisoner always is in custody for Miranda purposes when pulled from the
prison population and questioned about criminal conduct. (10) The
Supreme Court rejected this categorical rule, concluding that
in and of itself is not “custody” for purposes
of the Miranda warnings. Miranda custody requires analysis of whether
based on the objective circumstances a person would feel free to
terminate the interview and leave and whether the limitations on
movement present a coercive environment. The Court noted three factors
of confinement that normally contribute to a coercive environment, but
do not apply to a person serving a jail or prison sentence. An
incarcerated individual, as opposed to someone just arrested, is not
experiencing any “shock” of custody. In addition, incarcerated
individuals (as opposed to those awaiting trial) are unlikely to be
lured into speaking by hope for a quick release. They also know that the
questioning officers cannot affect the length of their confinement.
Applying these factors to the facts in the present case, the Court held
that Fields was not in custody for purposes of Miranda. As stated by the
Supreme Court, “Taking into account all of the circumstances of the
questioning–including especially the undisputed fact that respondent
was told he was free to end the questioning and return to his cell–we
hold that respondent was not in custody within the meaning of
Smith v. Cain, 132 S. Ct. 627 (2012)
In Smith the Court ordered a new trial after concluding that the
Brady v. Maryland
by failing to disclose potentially
adj. applied to evidence which may justify or excuse an accused defendant’s actions, and which will tend to show the defendant is not guilty or has no criminal intent.
material to the defense. (12) In 1992 Larry Boatner was the
victim of a
Burglary of a dwelling while the residents are at home.
Noun 1. home invasion – burglary of a dwelling while the residents are at home
robbery during which five of his friends were
killed. Boatner was the only survivor in a position to see the
perpetrators. Juan Smith eventually was charged in the crime and
prosecuted. The principle evidence against Smith was testimony by
Boatner identifying him as one of the assailants. Notes of the lead
detective responding to the scene indicated that Boatner stated shortly
after the crime that he could not identify any of the murderers, and his
report of a reinterview of Boatner 5 days later indicated the same.
These notes made by the detective were not produced to the defense
before trial. Based on this omission, the Court found a Brady violation,
reiterating that Brady established a due process violation where
evidence withheld is material to a determination of the defendant’s
guilt. Evidence is material where there is a reasonable probability that
the result of the proceeding would have been different if it was
produced. A defendant need only show that the likelihood of a different
result is great enough to undermine confidence in the outcome of the
trial. (13) Here Boatner testified at trial that he had “no
doubt” Smith was the gunman he stood “face to face” with
the night of the murders, and Boatner’s testimony was the only
evidence linking Smith to the crime. The Court found Boatner ‘s
contradictory statements that he could not identify anyone plainly
Messerschmidt v. Millender, 132 S. Ct. 1235 (2012)
This case is a civil action under Title 42, Section 1983, U.S. Code
for damages against officers, including Detective Kurt Messerschmidt,
alleging violation of Millender’s Fourth Amendment rights by an
search and seizure
. Shelly Kelly was moving out from the
residence she shared with her boyfriend Jerry Bowen when he attacked her
and shot at her with a black sawed-off pistolgrip shotgun as she drove
away, striking her car. Detective Messerschmidt researched Bowen, found
gang affiliations, and prepared affidavits for a search warrant at the
home of Augusta Millender, Bowen’s foster mother, where he was
believed to be staying. The warrant sought any and all weapons or
of gang affiliation, and articles showing who
controlled the premises. The warrant was executed while Augusta
Millender was home, resulting in the seizure of Millender’s
shotgun, a social services letter addressed to Bowen, and a box of
.45-caliber ammunition. Millender subsequently filed a civil action
alleging that the search violated her Fourth Amendment rights. The
officers sought to dismiss the lawsuit on the basis of qualified
immunity. The district court and an en
Ninth Circuit Court of
Appeals denied the officers’ claim of qualified immunity,
concluding that no reasonable officer would have relied on the warrant
because it was facially overbroad where it sought all firearms,
ammunition and related articles, and a wide variety of gang-related
materials where the crime had no relation to gang activity. (15)
The Supreme Court reversed, granting the officers qualified
immunity. The Court reiterated that officers are entitled to qualified
immunity unless their actions violated clearly established statutory or
constitutional rights using objective legal reasonableness to evaluate
the legal rules established at the time of the conduct. The Court agreed
with the principle articulated by the Ninth Circuit that while a warrant
may be signed by a neutral magistrate, thus establishing a strong
indication of objective reasonableness of the officers’ behavior,
the shield of immunity conferred by the warrant may be lost where the
underlying affidavit is so lacking in indicia of
render belief in its existence unreasonable.16 Given the facts and
logical inferences that could be drawn in this case, the Court concluded
that the warrant met the objective reasonableness test. The Court
reasoned that an officer could infer that Bowen might have additional
weapons and pose a continuing threat with them and that his gang
affiliation could bear both on his motive and credibility. Noting the
number of supervisors and other officials who reviewed the affidavits,
the Court stated that the officers were not required to parse through
and make a precise probable cause determination by comparing the facts
in the affidavit with the items listed in the warrant application. (17)
Finding that the warrant application was not so obviously lacking in
probable cause such that the officers could be considered plainly
incompetent for concluding otherwise, the Court ruled they were entitled
to qualified immunity.
United States v. Alvarez, 132 S. Ct. 2537 (2012)
Defendant Alvarez had made verbal false statements claiming to be a
recipient of the
Congressional Medal of Honor
The highest U.S. military decoration, awarded in the name of Congress to members of the armed forces for gallantry and bravery beyond the call of duty in action against an enemy.
. He was charged under
Title 18, Section 704, U.S. Code, which makes it a crime to falsely
represent verbally or in writing to have been awarded any decoration or
medal authorized by Congress for the U.S. Armed Forces. Four justices
joined the majority opinion, and two justices joined in a concurring
opinion with the plurality decision finding that the statute did not
meet the “exacting scrutiny” applied to contentbased speech
restrictions. (18) The Court held that the statute did not fit within
any of the three recognized exceptions to the First Amendment for false
statements and distinguished it from cases, such as fraud and
defamation, where legally
harm resulted from the
falsehood.’9 While all nine justices acknowledged the importance of
properly recognizing the heroism and sacrifice of service members, the
plurality found that the government did not establish that a new
exception to the First Amendment was merited where less restrictive
means were available to control the false speech. Effective means to
limit the effect of the false speech included counterspeech and
resulting public ridicule and establishing a publicly accessible
database of actual medal recipients.
CASES OF INTEREST FOR 2012-2013
Florida v. Harris, case below Harris v. Florida, 71 So.3d 756 (Fla.
2011), cert. granted, 132 S. Ct. 1796 (2012)
This case asks what facts, if any, must be presented by the
government to establish the reliability of a drug dog’s alert
beyond the dog’s basic training and certification. The Florida
Supreme Court held in a case involving the warrantless search of a
vehicle after a dog alerted positive to the presence of narcotics to
establish probable cause to support a search; relying on the training
and certification of the dog alone is not sufficient. (20)
Florida v. Jardines, case below Jardines v. Florida, 73 So.3d 34
(Fla. 2011), cert. granted, 132 S. Ct. 995 (2012)
In another Florida drug dog case, the court has agreed to consider
whether the use of a drug detection dog at the front door of a premises
is a search within the meaning of the Fourth Amendment and if so whether
probable cause is required. The Florida Supreme Court decided that it
was a search and that an evidentiary showing of wrongdoing establishing
probable cause (not reasonable suspicion) was required before such a
search could take place. (21)
Bailey v. United States
, interpreted a frequently used section of the federal criminal code. At the time of the decision, (c) imposed a mandatory, consecutive five-year prison term on anyone who “during and in
, case below United States v. Bailey, 652
F.3d 197 (2nd Cir. 2011), cert. granted, 132 S. Ct. 2710 (2012)
The Court will determine whether during the execution of a search
warrant targeting premises officers may detain occupants of those
premises who have left the location during or immediately before the
warrant was executed. Evidence obtained during the detention was
admitted at trial over objections that the detention violated
Bailey’s Fourth Amendment rights. (22) in Michigan v. Summers the
Court construed the Fourth Amendment to allow officers executing a
search warrant targeting premises to detain an occupant of those
premises when they encountered him leaving the location while they were
preparing to execute the warrant.” In Bailey, officers were
preparing to execute a search warrant when they observed Bailey and a
friend leave the target residence. Other officers followed them for
about a mile, pulled the vehicle over, and detained them. The subjects
made incriminating statements during the detention encounter indicating
that the search location was Bailey’s residence, and keys were
taken from Bailey that matched the residence being searched. During the
detention, officers at the premises began execution of the search
warrant and found a gun and drugs. Bailey sought to suppress the
evidence derived from the detention, claiming it was an unreasonable
seizure under the Fourth Amendment and not justified as part of the
execution of the search warrant. The Second Circuit Court of Appeals
concluded that the detention was reasonable under the Fourth
Amendment.24 The Supreme Court has agreed to hear this case in light of
the conflict that exists at the federal circuit court level. (25)
Vance v. Ball State University, case below Vance v. Ball State
University, 646 F.3d 461 (7th Cir. 2011), cert. granted, __ S. Ct. __
This is a case of interest to law enforcement managers. The Court
will decide whether for purposes of establishing
doctrine that imposes responsibility upon one person for the failure of another, with whom the person has a special relationship (such as Parent and Child,
under the Farragher-Burlington Industries standard a supervisor is
limited to those who have the power to take a final employment action,
such as to fire,
tr.v. de·mot·ed, de·mot·ing, de·motes
To reduce in grade, rank, or status.
[de- + (pro)mote.
, transfer, or discipline, or can include any
person who can direct and oversee the victim’s daily work. (26)
Law enforcement officers of other than federal jurisdiction who are
interested in this article should consult their legal advisors. Some
police procedures ruled permissible under federal constitutional law are
of questionable legality under state law or are not permitted at all.
(1.) As noted by the Court at footnote 1, the government conceded
noncompliance with the warrant and argued that it did not need a
warrant. United States v. Jones, 132 S. Ct. 945, 948 (2012).
(2.) United States v. Maynard, 615 F.3d 544 Cir. (D.C. 2010).
(3.) The government did not argue below that if using the GPS was a
search that it was, nevertheless, “reasonable” under the
Fourth Amendment, and both the appellate and Supreme Court held that
this argument had been waived. See Maynard, 615 F.3d at 567; and Jones,
132 S. Ct. at 954.
(4.) See Jones, 132 S. Ct. at 949.
. 389 U.S. 347 (1967).
(6.) United States v. Garcia, 474 F.3d 994 (7th Cir. 2007); United
States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010); and United
States v. Marquez, 605 F.3d 604 (8th Cir. 2010).
(7.) Jones at 951-952.
(8.) For example, in United States v. Skinner, No. 09-6497, 2012 WL
3289801 (6th Cir. Aug. 14, 2012), a post-Jones case, the defendant was
trafficking marijuana from Arizona to Tennessee and using a
pay-as-you-go cell phone to coordinate with other coconspirators. DEA
agents identified the defendant’s cell phone and “pinged”
the phone to obtain GPS data from it and to locate and arrest the
defendant. The court held that there was no Fourth Amendment violation
because the defendant had no reasonable expectation of privacy in his
publicly visible location traveling on a highway and no expectation of
privacy in the information emitting from the phone he chose to use. The
court noted that, unlike Jones, no device had been attached to the
(9.) See Jones, 132 S. Ct. at 957.
(10.) Fields v. Howes, 617 F.3d 813 (6th Cir. 2010).
(11.) Howes v. Fields, 132 S. Ct. 1181, 1194 (2012).
(12.) Brady v. Maryland, 373 U.S. 83 (1963).
(13.) Smith v. Cain, 132 S. Ct. 627, 630 (2012).
(14.) Id. at 630.
(15.) Millender v. County of Los Angeles, 620 F.3d 1016 (9th Cir.
(16.) Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012).
(17.) Id. at 1250.
(18.) United States v. Alvarez, 132 S. Ct. 2537, 2543 (2012).
(19.) Those exceptions are prohibition of false statements to a
, in criminal law, the act of willfully and knowingly stating a falsehood under oath or under affirmation in judicial or administrative proceedings.
, and falsely claiming to be speaking as a
government official or on behalf of the government. Id. at 2545-2546;
and Id. at 2545.
(20.) Harris V. Florida, 71 So.3d 756 (Fla. 2011).
(21.) Jardines v. Florida, 73 So.3d 34 (Fla. 2011).
(22.) United States v. Bailey, 652 F.3d 197 (2nd Cin. 2011).
(23.) Michigan v. Summers, 452 U.S. 692 (1981).
(24.) See Bailey 652 F.3d 197, 206-207.
(25.) See United States v. Cochran, 939 F.2d 337 (6th Cir. 1991);
United States v. Cavazos, 288 F.3d 706 (5th Cir. 2002); United States v.
Bullock, 632 F.3d 1004 (7th Cir. 2011) (extending Summers to include
occupants detained a short distance from the search location); United
States v Sherill, 27 F.3d 344 (8th Cir. 1994); and United States v
Edwards, 103 F.3d 90 (10th Cir. 1996) (refusing to extend Summers to
detentions of occupants away from the search location). 26
(26.) Farragher v. City of Boca Raton, 524 U.S. 775 (1998); and
Burlington Industries, Inc. V. Ellerth, 524 U.S. 742 (1998)
[Establishing liability for the harassment caused by supervisors and
managers, but permitting employers to assert an
demonstrating that they had adequate corrective and preventive policies
in place that the victim-employee failed to take advantage of in cases
where the harassment did not lead to a tangible employment action].
By KEVIN CHECHAK, J.D.