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FMG Law Blog Line

Posts Tagged ‘probable cause’

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].

Supreme Court Snuffs Warrantless Sniffs at the Stoop

Posted on: April 9th, 2013

By: Brian Dempsey

In a 5-4 decision, the Supreme Court recently decided that a narcotics detection canine’s sniff at the front door of a suspected marijuana grow house is a search requiring probable cause and a warrant. (Florida v. Jardines, Docket No. 11-564 (March 26, 2013)). For the majority, this case turned on the fact that the sniff occurred on private property. After all, just a few weeks prior, the Court had unanimously held that an exterior sniff of a vehicle on a public roadway is not a search which is subject to such restrictions under the Fourth Amendment.  (Florida v. Harris, Docket No. 11-817 (Feb. 19, 2013)).

Justice Antonin Scalia, writing for the majority, applied traditional principles of trespass law to conclude that the sniff amounted to a search under the Fourth Amendment. Scalia began by noting that the front porch where the officers deployed the canine was within the home’s “curtilage,” which encompasses the immediate surroundings of the home. As such, the front porch was to be treated as part of the home for purposes of the Fourth Amendment analysis. With that, Scalia reasoned, this was an “easy” case. When the government uses a physical intrusion to explore the details of the home (including its curtilage), a “search” has taken place.

Supreme Court Update: Drug Dog’s Sniff is “Up to Snuff”

Posted on: February 21st, 2013

By: Brian Dempsey

In a unanimous decision, the Supreme Court concluded that an “alert” by a well-trained narcotics detection dog establishes probable cause for the search of a vehicle’s interior for further evidence of illegal drugs.  Florida v. Harris, Docket No. 11-817 (Feb. 19, 2013).  Emphasizing that probable cause is a practical, commonsense standard, the Court rejected the Florida Supreme Court’s rigid prescription that the government produce certain elements of proof in order to show that a canine’s sniff and alert is sufficiently reliable to constitute probable cause.  Rather, the opinion, authored by Justice Elena Kagan, allows a court to presume that a dog’s alert is reliable, so long as there is some evidence that the dog is certified after being tested in a controlled setting or that the dog has recently and successfully completed a training program which included such an evaluation.  This presumption, of course, can be rebutted by evidence showing that the training or evaluation was faulty or insufficient.  In sum, the Court instructed that the “question is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.  A sniff is up to snuff when it meets that test.”

The Court has not yet issued its opinion in Florida v. Jardines, but the Court granted certiorari to decide whether a dog sniff at the front door of a suspected marijuana grow house by a trained drug dog is a search requiring probable cause and a warrant.  Because of the enhanced privacy expectations which attach to a private home (as opposed to a vehicle on public roads), we can expect that Court will apply a greater degree of skepticism and scrutiny to the investigative conduct at issue in Jardines.

Stay tuned.