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The Supreme Court will open the October 2014 Term on Monday morning by hearing arguments that may bring back bad memories of convoluted law school discussions: may an officers reasonable mistake of law provide reasonable suspicion to stop a car under the Fourth Amendment? The Court has previously ruled that a reasonable mistake of fact will not violate the Fourth Amendment. Although Jeff Fisher, an experienced Supreme Court litigator, has presented some formidable arguments to rule for Heien, he may face an uphill battle persuading a majority of Justices that a reasonable, but mistaken, interpretation of state law should receive different constitutional treatment.

Facts: A surprising interpretation of state law.

Heien was driving a car which undisputedly had only one of its two rear brake lights working. Observing this, a member of a local sheriffs department stopped Heiens car, ultimately finding cocaine in it. Along with charging Heien with cocaine trafficking, the officer cited Heien for a non-working brake light, and the state trial court agreed that the stop was valid based on this observed traffic violation. Heien then pled guilty conditionally, reserving his right to appeal the denial of his suppression motion.

But on what basis could a court suppress? Well, in a decision later described by even the dissenting North Carolina justices as surprising, the state court of appeals ruled that, because the antiquated North Carolina statute requires only a stop lamp and one of Heiens brake lights had in fact been working, the traffic stop was invalid. [A]n officers mistaken belief that a defendant has committed a traffic violation is not, said the appellate court, an objectively reasonable justification for a traffic stop.

Granting discretionary review, the North Carolina Supreme Court disagreed. It noted that, although one part of the state law required only a stop lamp, another required all rear lamps to be in working order. Thus, the state supreme court ruled, even assuming that the appellate courts statutory interpretation was correct, the officers mistake of law was objectively reasonable, and a reasonable mistake of law can provide the reasonable suspicion needed to stop a car under Terry v. Ohio. The Court also emphasized societys interest in keeping its roads safe. (Heien contends that the statute should define what the legislature thinks is safe, not officers who misinterpret it.)

Heiens petition for certiorari noted that various state and federal courts have split on the general question whether reasonable mistakes of law can support Fourth Amendment intrusions (with the North Carolina Supreme Court having adopted the minority view). On Monday, the Justices at least five of whom are former law professors will bat this ephemeral question around, hypotheticals abounding, in the highest classroom in the land.

Ideology and amicus briefs

Along with merits briefs from Heien and North Carolina (which will be represented by Deputy Attorney General Robert Montgomery at oral argument), the federal government will also participate in the argument (represented by Assistant to the Solicitor General Rachel Kovner) as an amicus. Six other amicus briefs have been filed, including one on behalf of nineteen states and the District of Columbia supporting North Carolinas view, and one filed by among others the Gun Owners Foundation in support of Heien. Ideology does not, apparently, forecast the preferred result on the surprisingly unsettled constitutional question: the Gun Owners Foundation brief argues, for example, that the Fourth Amendment . . . cannot be diminished by modern judges who view traffic safety [as] more important than property rights.

The parties arguments

Conceding that the Court has previously ruled that what is generally demanded of the many factual determinations regularly made by law enforcement is not that they always be correct, but that they always be reasonable, Heien argues that mistakes of law should be (and have always been) treated differently. He argues (and both North Carolina and the federal government appear to concede) that the common law has always presumed that officers know the law, so that officers, for example, have long been liable for trespass even if they reasonably rely on an incorrect interpretation of a statute. Ignorance of the law is no excuse, argues Heien.

The rest is here:
Argument preview: How many brake lights need to be working on your car?

Philadelphia, PA (PRWEB) October 03, 2014

Are we witnessing diminishing protection against unreasonable search and seizure? When it comes to police misconduct, is race a factor?

If the First Amendment is our most cherished right under the constitution, says Attorney Christopher Naughton on the television programs preview, then the Fourth Amendment protection against unreasonable search and seizure is right behind it.

Live Monday night October 6, 2014 at 7:00 p.m. on the Philadelphia CNN-News affiliate WFMZ-TV and streaming online at wfmz.com, The American Law Journal presents "Search & Seizure: A New Fourth Amendment for a New Generation? with host Christopher Naughton. His guests are criminal defense attorney Kevin Mincey of Mincey & Fitzpatrick, Northampton County District Attorney John Morganelli and former New Jersey State Police Major and Chief of Staff Michael Schaller of New Jerseys King, Kitrick, Jackson & McWeeney.

Has a new, high tech-oriented generation come to expect less privacy - and therefore less protection- under the Fourth Amendment?

The program examines a panoply of current, critical topics: warrantless stops, cell phone seizure, GPS tracking, stop and frisk, officer cams and possible racially motivated police misconduct. The panel also gives their take on the latest and upcoming U.S. Supreme Court Fourth Amendment cases as well as the Pennsylvania Supreme Courts controversial Commonwealth v. Gary (2014) decision that now allows vehicular search and seizure based on probable cause.

The American Law Journal starts its 25th season of broadcasting on the CNN-News affiliate for Philadelphia, WFMZ-TV 69 to Pennsylvania, New Jersey and Delaware. Airing Monday nights at 7:00 pm from October to Memorial Day the program is also available on http://www.YouTube.com/LawJournalTV. For over the air channels (HD, satellite) see http://bit.ly/ALJchannels.

Next week on The American Law Journal: Work Injury & Labor Market Surveys: Can the Boss Force Your Hand?

About The American Law Journal

The American Law Journal is the weekly talk-feature program hosted by former New Jersey prosecutor and trial attorney Christopher Naughton. It airs Monday nights at 7:00 p.m. on the CNN- News affiliate in Philadelphia, WFMZ-TV to Pennsylvania, New Jersey, Delaware and online.

Continued here:
Search & Seizure, Racial Bias: The American Law Journal on the Philadelphia CNN-News Affiliate WFMZ Monday, October 6 ...

Today the Supreme Court granted cert in Rodriguez v. United States, a case on the duration of traffic stops. Heres the Question Presented from the cert petition:

This Court has held that, during an otherwise lawful traffic stop, asking a driver to exit a vehicle, conducting a drug sniff with a trained canine, or asking a few off-topic questions are de minimis intrusions on personal liberty that do not require reasonable suspicion of criminal activity in order to comport with the Fourth Amendment. This case poses the question of whether the same rule applies after the conclusion of the traffic stop, so that an officer may extend the already-completed stop for a canine sniff without reasonable suspicion or other lawful justification.

I wrote a post on Rodriguez back in February that Ill reprint below in light of the grant:

Imagine a police officer pulls over a car for a routine traffic violation, such as speeding or driving with a broken taillight. During the stop, the officer develops a hunch that there may be drugs in the car. He contacts a local K-9 unit and requests a trained drug-sniffing dog; when the unit arrives, another officer will walk the dog around the car to see if it alerts to drugs inside. Although the Supreme Court has held that the use of the dog is not a search, the length of a warrantless stop must be reasonable. The officer cant delay the driver forever.

This raises a question of Fourth Amendment law that has led to a lot of lower court litigation: If the officer has no reasonable suspicion that drugs are in the car that is, he only has a hunch how long can the traffic stop be delayed before the dog arrives and checks out the car?

This might seem like a really technical question. But its actually pretty important. If courts say that the police cant extend the stop even one second to bring over the dogs, then the dogs will only be used when they happen to be right there or some reasonable suspicion exists specifically justifying their use. On the other hand, if the courts say that the police can extend the stop for a long time, then the police will be free to bring out the dogs at routine traffic stops whenever they like.

Lower courts have generally answered the question by adopting a de minimis doctrine. Officers can extend the stop and wait for the dogs for a de minimis amount of time. But exactly how long is that?

Just yesterday, the U.S. Court of Appeals for the Eighth Circuit held in United States v. Rodriguez that seven to eight minutes is de minimis. On the other hand, the Supreme Court of Nevada held a few months ago in State v. Beckman that nine minutes is too long.

These are just lower-court decisions, of course, and there is room to argue that duration alone isnt the only criteria for whether a stop was too long.

Plus, the Supreme Court has been reluctant to announce arbitrary-sounding time limits on Fourth Amendment searches and seizures. Off the top of my head, the only time it has suggested such limits is County of Riverside v. McLaughlin, and even then it did so only because an earlier decision that did not suggest a specific time limit had caused significant chaos in the lower courts in that specific context.

Read the original here:
Volokh Conspiracy: Supreme Court takes case on duration of traffic stops

Ive blogged a few times about the Third Circuits litigation in United States v. Katzin, a case on the Fourth Amendment implications of installing a GPS device. Initially, a panel of the court held that installing a GPS device on a car requires a warrant and that the exclusionary rule applied because there was no binding precedent allowing the government to install the device. Next, DOJ moved for en banc rehearing of just the exclusionary rule holding, which the Third Circuit granted. That brings us to the new development: On Wednesday, the en banc Third Circuit ruled that the exclusionary rule does not apply.

Here are three thoughts on the new case.

1) The Third Circuit focuses on the overall culpability of the officer who conducted the search, relying on the broad reading of Davis and Herring. The key passage seems to be this:

The constellation of circumstances that appeared to authorize their conduct included well settled principles of Fourth Amendment law as articulated by the Supreme Court, a near-unanimity of circuit courts applying these principles to the same conduct, and the advice of an AUSA pursuant to a DOJ-wide policy. Given this panoply of authority, we cannot say that a reasonably well trained officer would have known that the search was illegal, id., nor that the agents acted with deliberate, reckless, or grossly negligent disregard for [Appellees] Fourth Amendment rights, Davis, 131 S. Ct. at 2427 (quoting Herring, 555 U.S. at 144) (internal quotation marks omitted). Thus, suppression is inappropriate because it would not result in deterrence appreciable enough to outweigh the significant social costs of suppressing reliable, probative evidence, upon which the Governments entire case against Appellees turns.

Ive been assuming that the debate over the broad vs. narrow reading of Davis was destined to be decided by the Supreme Court eventually. With that said, its interesting that all the circuits so far are reading the case so broadly so that no clear split has yet emerged. I personally find the broad reading of Davis to be very problematic, but I would guess that there are five votes on the current Court that would agree with that broad reading.

2) In this case, defense counsel conceded the relevance of the agent consulting with a prosecutor about the legality of the practice as part of the exclusionary rule calculus. See Slip Op at 34, n.13. Theres some precedential support for that, I recognize. At the same time, it strikes me as a really problematic rule. Think of the incentives it creates. First, agents have an incentive to ask the most aggressive prosecutor they know. Agents wont ask for legal advice from Cautious Cathy; instead theyll run it by Aggressive Andy. Second, the rule gives prosecutors an incentive to give out aggressive advice. If youre a prosecutor and agents ask for your legal advice, you will know that by approving a questionable practice, the mere fact of your approval becomes an argument against the exclusionary rule applying if you turn out to be wrong. The exclusionary rule becomes narrower as the prosecutors become more aggressive.

3) Notably, the court vacated the merits ruling that a warrant was required even though DOJ did not ask the court to revisit that issue.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.

The rest is here:
Volokh Conspiracy: Third Circuit gives narrow reading to exclusionary rule

Back in August, the Third Circuit handed down an unpublished opinion in United States v. Gomez (August 8, 2014), that appears to have rejected the mosaic theory of the Fourth Amendment, at least in the context of telephone metadata. I havent seen any coverage of the decision elsewhere, so I thought I would blog it.

In Gomez, the government obtained a pen register order to monitor the metadata for Gomezs telephone calls for about 5 weeks. Gomez argued that under the Jones concurrences, the prolonged surveillance was sufficient to constitute a Fourth Amendment search. The Third Circuit disagreed in an opinion by Judge Smith joined by Judges Vanaskie and Schwartz:

Gomez first argues that the DEAs prolonged warrantless use of a pen register and trap and trace device violated his privacy rights under the Fourth Amendment. We agree with the District Court that this argument is foreclosed by Smith [v. Maryland]. Gomez provided a third party in this case, Sprint with all the data that the DEA obtained through the use of the pen register and trap and trace device. In so doing, Gomez abandoned his privacy interest in this data because he assumed the risk that the information would be divulged to police. Smith, 442 U.S. at 745, 99 S.Ct. 2577. Although Justice Sotomayor has urged the Court to reconsider Smiths holding that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties, United States v. Jones, U.S. , 132 S.Ct. 945, 957, 181 L.Ed.2d 911 (2012) (Sotomayor, J., concurring), we remain bound by Smith until a majority of the Court endorses this view.

The Third Circuit then adds the following explanatory footnote:

In the proceedings below, Gomez conceded that his position was contrary to Smith, but cited Justice Sotomayors concurrence in Jones for the proposition that Smith is antiquated and must be reconsidered. J.A. 60. Gomez presents a different argument on appeal. Instead of urging us to overrule Smiths third party doctrine, Gomez contends that this doctrine has already been cabined by five Justices of the Supreme Courta number he reaches by combining Justice Sotomayors and Justice Alitos concurrences in Jones. Appellants Br. 27, 31. As Gomez did not raise this argument before the District Court, it is waived. Holk v. Snapple Beverage Corp., 575 F.3d 329, 336 (3d Cir.2009).

In any event, we reject Gomezs contention that the concurrences in Jones cabined Smith. Justice Alitos concurrence did not explicitly seek to limit Smith, and indeed relied heavily on the fact that drivers of automobiles do not expect third parties to possess detailed, long-term data regarding their location. Jones, 132 S.Ct. at 964 (Alito, J., concurring). By contrast, cell phone users do expect service providers to possess detailed, long-term data regarding the numbers they dial because this information is necessarily conveyed in the course of connecting a call. Smith, 442 U.S. at 743, 99 S.Ct. 2577. By disclosing this data, cell phone users, unlike drivers of automobiles, assume[ ] the risk that a third party will convey it to law enforcement. Id. at 744, 99 S.Ct. 2577. Therefore, we are not persuaded that the two concurrences in Jones have limited Smith to short-term call monitoring.

Off the top of my head, I think this is the first federal court of appeals opinion to directly address the important question of whether the mosaic theory modifies Smith v. Maryland. The opinion was not published and is therefore non-precedential. But given that this is likely to be an important issue when the D.C. Circuit reviews Klayman v. Obama on November 4th, I thought the Third Circuits opinion was worth noting.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.

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Volokh Conspiracy: Third Circuit on the mosaic theory and Smith v. Maryland