SCOTUS End-of-Term Roundup: Fourth Amendment Cases

On the criminal side of the Court’s docket, I found this term’s statutory interpretation cases more interesting than the constitutional cases.  In the latter category, the Fourth Amendment decisions were probably the most significant.  They were:

  • Fernandez v. California, 571 U.S. __ (2014) (police permissibly conducted warrantless consent search of home notwithstanding objection of one occupant).
  • Prado Navarette v. California, 572 U.S. __ (2014) (anonymous 911 call sufficiently justified stop of vehicle).
  • Riley v. California, 573 U.S. __ (2014) (warrant required for search of arrestee’s cell phone).

In reviewing these three cases, I think the most intriguing comparison is between Fernandez and Riley.  The two decisions serve to highlight apparent inconsistencies in the Court’s stance toward search warrants. (more…)

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Police Get Good Marks, From Citizens of All Races

Last week, the Milwaukee Fire and Police Commission announced that it would conduct its first survey of citizen satisfaction with the police.  The results should provide us with helpful new ways to evaluate the Milwaukee Police Department’s performance and identify areas in need of improvement.

Unfortunately, media coverage provides a very distorted picture of police-citizen interactions.  What makes the news, of course, is when officers become violent or exhibit extreme callousness.  When video is available of such incidents, as is increasingly common, the vivid images may be repeated endlessly on TV or circulate virally on social media.  Viewers may be left with the impression that such incidents are the norm.  However, the vast majority of police-citizen interactions occur without anything newsworthy happening.  Among other things, the Commission’s new survey should give us a much better sense of what happens in the more routine interactions and how those interactions affect public perceptions of the police.

Although this sort of survey data has not been available for Milwaukee specifically, the U.S. Bureau of Justice Statistics did conduct a national survey in 2011 regarding police-citizens interactions.  The results, released in two reports earlier this fall, indicate a remarkably high level of citizen satisfaction, even among the minority groups who seem to bear the brunt of the high-profile incidents of police misconduct.   (more…)

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Fourth Amendment Not Violated by Driver’s Detention for 39 Minutes After Being Stopped for Speeding, Seventh Circuit Holds

An Illinois State Trooper pulled over Oscar Bueno for driving his van 69 MPH in a 65-MPH zone.  Trooper Owen decided to give Bueno a written warning for speeding, but various aspects of the situation aroused his suspicions that Bueno might be transporting contraband.  After conducting further investigation, Owen determined that Bueno’s van carried drug money bound for Mexico.  Thirty-nine minutes into the stop, Bueno was handcuffed and taken into custody.

After his conviction on drug trafficking charges, Bueno argued on appeal that evidence from the stop should be suppressed since the stop had been unreasonably prolonged in violation of the Fourth Amendment.  Earlier today, the Seventh Circuit affirmed in United States v. Bueno (No. 11-2532) (Bauer, J.).

(more…)

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Federal Criminal Cases, 1928-1930: Surprisingly Similar to Today, But Also Very Different

In anticipation of the conference here next month on the Wickersham Commission, I’ve been reviewing the thirteen voluminous reports the Commission issued in 1931 on various aspects of the criminal-justice system.  One that holds some interesting surprises is the “Progress Report on the Study of the Federal Courts.”  The heart of this report is a fascinating, detailed statistical analysis of the criminal cases in the District of Connecticut for fiscal years 1928-1930.

One thing that strikes me as remarkable is the almost complete absence of trials — the system was dominated then, as now, by guilty pleas.  Old-timers today will sometimes tell you about a golden age of trials in the federal system in the 1970′s.  In that decade, guilty plea rates hovered between 77% and 82%.  After 1981, the rate climbed steadily, reaching more than 96% of adjudicated cases in 2009.  But this, apparently, is not a new phenomenon.  Among 740 criminal cases filed in the District of Connecticut between 1928 and 1931, only nine went to trial.  That’s right, only nine trials in three years.  (Eight of these, by the way, took less than one full day to try.)  The guilty plea rate in adjudicated cases was over 98%.

After doing some digging for national data, I discovered that the guilty plea rate rose steadily between 1916 and 1933, reaching a peak of 91%.  (See Ron Wright’s helpful data compilation here.)  So, Connecticut seems not to have been terribly atypical.

The Connecticut data are, in fact, strongly reminiscent of a modern “fast-track” plea-bargaining system.  (more…)

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How Employment Law May Undermine Good Policing (Or Maybe Not)

Rachel Harmon thinks that lawyers and legal scholars focus too much on constitutional law when they consider how best to regulate the police.  In her new article, The Problem of Policing, 110 Mich. L. Rev. 761 (2012), Harmon identifies several other bodies of law that may also have a big impact on the quality of policing.  She argues that scholars and policymakers should take all of these bodies of law into account with an eye to promoting what she calls “harm-efficient policing—that is, policing that imposes harms only when, all things considered, the benefits for law, order, fear reduction, and officer safety outweigh the costs of those harms.”  (792)

Harmon’s article contains many interesting insights, but what particularly caught my eye was her discussion of public employment law.   (more…)

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Who Has Authority to Consent to a Search? Still No “Crisp Answer”

Police wished to search the apartment of Victor Garcia, whom they had just arrested for drug trafficking.  They did not wish to obtain a warrant.  Fortunately, they found Garcia’s 18-year-old niece, who had a key and was most accommodating.  Inside the apartment, the officers found 13 kilograms of cocaine.  Could the evidence be used against Garcia?  Yes, said the Northern District of Illinois, holding that the officers had a reasonable belief that the niece had been authorized to allow a search of her uncle’s apartment.

On appeal, the Seventh Circuit affirmed earlier today in United States v. Garcia (No. 12-1805).

Judge Posner, writing for the panel, observed, “The question of the authority of someone not the occupant of a home to consent to a search of it arises frequently but has never received a crisp general treatment and probably never will.”  (4)

Posner described the problem in terms of a spectrum without a clear dividing line:

(more…)

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Your Constitutional Rights Are Much Weaker Than You Think They Are — So What?

Michael Cicchini has an entertaining (in a dark, ironic sort of way) new book.  The title pretty clearly indicates Cicchini’s perspective: Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights.  The heart of the book is a survey of our basic constitutional rights, one chapter per right.  A central theme in this survey is that the courts have interpreted the familiar Fourth, Fifth, and Sixth Amendment rights such that they are, as Cicchini puts it, “soft law” — “vague, malleable, and subject to a tremendous amount of discretion under a facts-and-circumstances type of analysis.”  (11)  In his view, this approach to constitutional rights stacks the deck in favor of police and prosecutors and against defendants.  The soft formulation “allows the police to create the facts and circumstances necessary to circumvent — or, more accurately, destroy — constitutional rights.”  (15)  Prosecutors and judges, Cicchini observes, may do the same.

The result is a set of constitutional rights that are probably much less protective of defendants than many laypeople realize.  Cicchini identifies the major absurdities and unexpected gaps in the law.  I don’t know if Cicchini is an admirer of the late Christopher Hitchens, but his excellent blog features a quote from Hitchens, and Cicchini seems to take a similar delight in skewering hypocrisy and intellectual laziness.  Although the book is intended for a general audience, Cicchini’s acerbic prose makes it a good read even for someone who is already familiar with the legal issues he discusses.

But, aside from entertainment value, what is the point of demonstrating that the courts are, to put it charitably, inconsistent in their support of defendants’ rights?   (more…)

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Florence v. Board: With Proactive Policing at Issue, Supreme Court Backs Discretion

With grading now finished for the semester, I’ve been catching up on some reading, including the Supreme Court’s April decision in Florence v. Board of Chosen Freeholders of County of Burlington. This is the decision in which the Court upheld the use of routine, suspicionless strip searches of individuals arrested and jailed for minor offenses.

It strikes me that part of what was really at issue in the case went unmentioned by both the majority and the dissent. The case is framed on both sides as being about corrections administration, but it is perhaps just as much about policing – how much discretion are we going to give police to detain citizens and impose on them the humiliation, stigma, and danger of incarceration with a general jail population.  This discretion seems a powerful tool in support of proactive, crime-preventive policing, but it is also prone to abuse and seems hard to reconcile with ideals like checks and balances and “innocent until proven guilty.”

Writing for the Florence majority, Justice Kennedy presented the case as a conventional prisoner rights case.

(more…)

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Fourth Amendment and Culpability: Adding a Dimension (or Two)

In its recent decisions in Herring v. United States, 555 U.S. 135 (2009), and Davis v. United States, 131 S. Ct. 2419 (2011), the Supreme Court has indicated that the Fourth Amendment exclusionary rule depends on culpability.  As the Court put it in Davis:

[T]he deterrence benefits of exclusion “var[y] with the culpability of the law enforcement conduct” at issue. When the police exhibit “deliberate,” “reckless,” or “grossly negligent” disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. But when the police act with an objectively “reasonable good-faith belief” that their conduct is lawful, or when their conduct involves only simple, “isolated” negligence, the “deterrence rationale loses much of its force,” and exclusion cannot “pay its way.”  (citations omitted)

Although the Court has made culpability the key, the Court has not clearly defined the critical boundary between gross negligence and “simple, isolated negligence.”

Craig Bradley illuminates the difficulties in an insightful new article, arguing that courts should take into account the extent of the intrusion into the suspect’s privacy when deciding whether police negligence has crossed the line into misconduct that warrants exclusion.

(more…)

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Comparing Police Stops of Citizens in New York and Milwaukee, Part II

As I discussed in my previous post, frequent police stops of citizens may ultimately prove counterproductive to crime-fighting objectives.  In this regard, I also suggested that who is targeted and how they are treated may actually matter more than the sheer quantity of stops.  If that’s right, then several aspects of the New York stop data are troubling.

Racial disparities are one concern.  Black and Hispanic males between the ages of 14 and 24 accounted for more than 40% of the stops made by the NYPD in 2011, even though they amount to less than 5% of the city’s population.

(more…)

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