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Posts Tagged ‘Fourth Amendment’

Narrow Victory for Law Enforcement and Commonsense in Kansas v. Glover

Posted on: April 9th, 2020

By: Peter Dooley

The scope of reasonable judgments that police officers can make during traffic-stops under the Fourth Amendment was recently widened, at least narrowly, by the U.S. Supreme Court on April 6th in their 8-1 decision in Kansas v. Glover.  The stop in question involved a deputy with the Douglas County Kansas Sheriff’s Office observing an individual operating a 1995 Chevy pick-up.  Upon running the license plate information, the deputy discovered that the registered owner of that truck had a revoked license and that the model of the truck listed on the registration was the exact model he observed. 

While the stop was conducted and the deputy’s suspicion was confirmed afterwards, it also unearthed serious concerns related to Fourth Amendment searches and seizures and the required reasonable and articulable suspicion that the person stopped has, is, or is about to commit a crime.  These concerns led the Kansas Supreme Court to publish an Opinion deciding that the stop was “only a hunch” and lacked the “factual basis” required for reasonable suspicion under the Fourth Amendment.  Justice Thomas summarizes the Court’s response and reasoning for reversing the decision best when he states that the deputy’s search was valid because, from the facts at hand, “Deputy Mehrer drew the commonsense inference that Glover was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop.” 

The majority were not persuaded by Sotomayor’s dissenting opinion that the inference was unreasonable as it was not grounded in “law enforcement training and experience.”  The majority explained that case precedent clearly states that police officers may use similar commonsense inferences and judgments in reasonable suspicion determinations; these decisions need not require specialized training or experience as justification but, instead, can be “a reasonable inference made by ordinary people on a daily basis.”  The argument that this destroys the requirement for specific and articulable facts failed similarly as the Opinion explains that it was not merely a hunch or probability determination here, but that the stop was actually made in reliance upon the facts regarding the license plate database information and officer observations.  Justice Thomas writes, “combining database information and commonsense judgments in this context is fully consonant with this Court’s Fourth Amendment precedents.” 

Potentially due to concerns in the Kagan Concurrence, the narrowness of the holding is highlighted throughout, and the Court explains how the presence of additional facts can easily dispel reasonable suspicion.  Commonsense inferences made before a stop must be based on database information that provides a logical and strong inference of lawlessness.  Additionally, officers cannot ignore the fact that the driver they observe does not match the age, gender, or other known descriptions of the individual or vehicle.  However, as no such information existed prior to the stop in Glover and the database information was sufficiently conclusive, the officer’s inference was reasonable, and his actions were justified. 

When looking to the real-world application of this decision, one takeaway is the Court’s continued preference for reliance on judicial sense and commonsense determinations as opposed to those requiring statistics or training as justification.  More specifically law enforcement officers may now use commonsense inferences in Fourth Amendment traffic-stops such as determining that the owner is likely the person seen driving the car and similar determinations with the assistance of databases.  This decision is not groundbreaking but is an important victory on the side of general likelihoods and commonsense reasonable suspicion determinations in the constant tug-of-war between effective law enforcement practices and Fourth Amendment protections. 

If you have any questions or would like more information, please contact Peter Dooley at [email protected]

Supreme Court Revisits Interplay Between First and Fourth Amendments

Posted on: November 29th, 2018

By: Wes Jackson

Imagine you commit a minor crime and an officer approaches you. The interaction goes south when you call the officer a “pig” and remind him that your tax dollars pay his salary. He then arrests you. Were your constitutional rights violated?

That’s the question the Supreme Court considered Monday, November 26, 2018 when it heard oral arguments in Nieves v. Bartlett. In Nieves, two Alaska State Troopers were patrolling a multi-day ski and snowmobile festival when they decided to investigate some underage drinking. Bartlett, who was intoxicated, intervened and confronted the troopers. The officers arrested Bartlett and put him in a “drunk tank.” He was later released and charged with disorderly conduct and resisting arrest. The state declined to prosecute the charges due to budgetary reasons. Bartlett sued, alleging his arrest was retaliatory because he refused to assist the officers in their investigation of the minors drinking alcohol.

Retaliatory arrest claims, like the one in Nieves, occur at the intersection of the First and Fourth Amendments: the presence of probable cause bars a Fourth Amendment claim for false arrest, but the circuits are split as to whether probable cause will also bar a First Amendment claim for retaliatory arrest arising from the same incident. Those circuits applying the probable cause bar to retaliatory arrest claims employ a bright-line objective standard that protects the officer from protracted litigation or trial where it is clear (or even arguable) that a reasonable officer could believe the arrestee had committed a crime. Rejecting the probable cause bar to retaliatory arrest claims could subject officers to months or years of litigation probing their subjective intent behind making an arrest—i.e., did the officer arrest the plaintiff for his crime or his speech?

At the Nieves oral argument, the justices sought to find a balance between protecting First Amendment rights while also giving law enforcement officers enough cover to act decisively and make arrests in fast-paced situations. On one hand, Justice Kagan noted the concern that officers might use minor crimes as a pretext to arrest for speech they disagree with, stating “there are so many laws that people can break that police officers generally look the other way, but, you know, you’re saying something that the officer doesn’t much like, so he doesn’t look the other way.” On the other hand, Justice Breyer and other justices noted the obvious concern with the chilling effect that would accompany the possibility of officers being haled into court every time they arrest someone who hurls an insult—officers could be to hesitant to make otherwise appropriate arrests.

One possible solution the justices entertained was to keep the probable cause bar for retaliatory arrests, but to limit its application to situations where there was probable cause for the charge on which the officer made the arrest or other charges upon which the arrestee was soon indicted. Such a solution would keep the probable cause bar for retaliatory arrests but prevent officers from concocting post hoc justifications for the arrest months or years later in a civil rights lawsuit.

The Court should issue an opinion in Nieves v. Bartlett in the coming months. If you have any questions about this case or retaliatory arrest claims more generally, please contact Wes Jackson at [email protected].

Antisocial Media: Court Critical of Cop Capturing Curious Citizen’s Cellphone

Posted on: April 23rd, 2018

By: E. Charles Reed, Jr.

The Eleventh Circuit Court of Appeals has held that a police officer violates clearly established law by seizing a bystander’s cellphone at an accident scene in the absence of exigent circumstances.

With the rise of social media and the availability of devices with cameras, newsworthy events and potential evidence of criminal or civil liability can be captured by citizens with fortuitous timing and cellphones. While the methodology of capturing potential evidence has changed, constitutional principles associated with law enforcement’s gathering of that evidence has not. One law enforcement official recently learned this lesson the hard way in Crocker v. Beatty, 2018 U.S. App. LEXIS 8290 (Apr. 2, 2018).

In May 2012, Deputy Steven Beatty arrived at an accident scene involving an overturned SUV.  By the time Beatty had arrived, several bystanders, including a citizen named James Crocker, had taken photographs and video of the scene with their cell phones. Crocker captured images of empty beer bottles, the overturned vehicle and emergency personnel, but no images of the persons involved in the accident. Beatty approached Crocker, took his cellphone and instructed him to leave the area and wait for instructions about when his phone would be returned. Crocker refused to leave and offered to delete the footage in return for his phone. Instead, Beatty placed Crocker under arrest for resisting an officer without violence.

On appeal at the summary judgment stage, the Eleventh Circuit affirmed the trial court’s denial of qualified immunity for Beatty. First, the court rejected the argument that Beatty’s seizure was justified by exigent circumstances because Crocker was a non-suspect bystander with no motive to delete any photographs. The fact that Crocker’s cellphone could later be lost did not create an exigency.

More importantly, the Court held that the right to be free from warrantless seizures of personal property was established with “obvious clarity” in May 2012 such that Beatty should have known his conduct violated federal law. “Our case law has sent a consistent message, predating 2012, about the warrantless seizure of personal property and how exigent circumstances may arise. The technology of the iPhone simply does not change our analysis. To hold otherwise would deal a devastating blow to the Fourth Amendment in the face of sweeping technological advancement. These advancements do not create ambiguities in Fourth Amendment law; the principles remain as always. Because of this, Beatty is not entitled to qualified immunity.”

The Court did not address, and may not have been presented with, the policy implications for agencies responding to mass-casualty or critical incidents in metropolitan centers – where hundreds of witnesses may be present, each with different video clips taken at different times and from different angles.  However, the takeaway from this case is while technology may push products further and further into the future, the prudent law enforcement officer will apply the legal authority of the past to minimize being held liable for his or her actions.

Charles Reed is member of Freeman, Mathis, & Gary’s Government Section and regularly defends government employees in in civil rights cases.  He can be reached at [email protected] or by phone at 678-399-6351.

Home Run for Analysis of Use of Force During Medical Emergencies

Posted on: October 31st, 2017

By: Kevin R. Stone and Sara E. Brochstein

I’m bad at baseball.  When I step in the batter’s box, I might as well have two strikes against me before the pitcher unleashes his first fastball.  For me, it’s no big deal; I’m destined to strike out anyway.  The Sixth Circuit, however, recognizes that’s no way to treat law enforcement officers faced with the difficult choice to use force in response to medical emergencies.

In determining whether a Fourth Amendment violation has occurred in excessive force cases, the evidence must demonstrate that the officer’s actions were “objectively reasonable” under the totality of the circumstances.  The Supreme Court has provided three over-arching factors to consider in this analysis: (1) the severity of the crime; (2) whether the suspect actively resisted or evaded arrest; and (3) whether the suspect posed an immediate threat.  (The Graham factors.)

When responding to a medical emergency, however, two of those factors usually don’t exist: no crime (strike one) and, by extension, no resisting or evading arrest (strike two).  Thus, the officer’s choice to use force may rest on a single factor, which the officer may have to assess and act on in a split second.  Acknowledging that the Graham factors are not exhaustive and that medical emergencies create unique challenges for law enforcement officers, the Sixth Circuit, in Hill v. Miracle, established a list of additional non-exhaustive factors to consider when determining whether an officer’s use of force is objectively reasonable in such situations:

(1) Was the person experiencing a medical emergency that rendered him incapable of making a rational decision under circumstances that posed an immediate threat of serious harm to himself or others?

(2) Was some degree of force reasonably necessary to ameliorate the immediate threat?

(3) Was the force used more than reasonably necessary under the circumstances (i.e., was it excessive)?

The court explains: “If the answers to the first two questions are ‘yes,’ and the answer to the third question is ‘no,’ then the officer is entitled to qualified immunity.  These questions and answers serve as a guide to assist the court in resolving the ultimate issue of whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them.”

The Sixth Circuit’s opinion drives home the principle that rote application of the Graham factors may cause an unfair strike out.  Objective reasonableness requires an examination of the totality of the circumstances and deserves a careful, fact-specific assessment in each case.  Whether other circuits will hit home runs and also apply these new factors remains to be seen.

If you have any questions or would like more information, please contact Kevin R. Stone at [email protected] or Sara E. Brochstein at [email protected].

Search and Seizure in the Digital Age: Eleventh Circuit to (Re)consider Whether Cell Tower Data is Protected by the Fourth Amendment

Posted on: September 18th, 2014

By: Mark A. Begnaud

On September 4, 2014, the Eleventh Circuit Court of Appeals voted to rehear the case of United States v. Quartavious Davis en banc. In the original opinion, the Court found that all cell-site data is protected by the Fourth Amendment. The vote to rehear the case vacates the panel decision, and the case will be set for a future en banc argument before the full Eleventh Circuit.

The facts of the case show a relatively straightforward prosecution for a string of armed robberies. Quartavious Davis was convicted of robbing a Little Caesar’s Restaurant, a Walgreen’s pharmacy, and several other businesses with a group of accomplices. At trial, the prosecution called two of Davis’s accomplices to testify, called two eyewitnesses, and introduced surveillance video from four of the robberies.

The Fourth Amendment issue arose in the prosecution’s decision to also introduce records from cellular service providers showing that Davis and his accomplices had placed and received phone calls near the robbery locations around the times of the robberies. Davis objected, arguing that this information was protected by the Fourth Amendment and that law enforcement officers should have obtained a warrant before gathering it (they had obtained a court order but no search warrant).

The Eleventh Circuit panel agreed with Davis’s argument, in an opinion that has been criticized by [at least one constitutional scholar]  as a “radical… reinterpretation of the Fourth Amendment.” In addressing the question of how a person can have a Fourth Amendment right to privacy in his public movements, the court distinguished a single observation of a person in public from the type of broad information gleaned from cellular data: “the car owner can reasonably expect that although his individual movements may be observed, there will not be a ‘tiny constable’ hiding in his vehicle to maintain a log of his movements.”

Notably, the original Davis opinion created a circuit split, as the [Fifth Circuit] has held that the Fourth Amendment does not protect cell-site data. The issue is also in front of the [Fourth Circuit] at present. The original decision is [United States v. Davis, 754 F.3d 1205 (11th Cir. 2014)]