Supreme Court Update
2011 – 2012 Term
Statistical Review
 First year in three years without a new Justice
 65 Opinions (lowest in recent history)
 160 separate opinions (also very low)
 15 cases decided by vote of 5-4
 10 Summary reversals without opinions
 63% of decisions reversed or vacated the lower court
 9th Circuit – had 32% of cases before the Court, 71%
of which were reversed
HOW DID LAW ENFORCEMENT INTERESTS FAIR?
WAY BAD
NEW TECHNOLOGY DIMINISHED BY AN
HISTORICAL FRAMEWORK: U.S. v. Jones
WAY COOL
SEARCHING NEW
PRISONERS
Florence v. Board of
Chosen
Freeholders
EYEWITNESS
IDENTIFICATION
Perry v. New
Hampshire
QUALIFIED IMMUNITY
Ryburn v. Huff
Messerschmidt v.
Millender
AEDPA
Bobby v. Dixon
Howes v. Fields
Fourth Amendment
 U.S. v. Jones, 132 S.Ct. 945 (2012) –
Cars, GPS devices and an old
standard reintroduced
 Florence v. Bd. of Chose
Freeholders of the County of
Burlington, 132 S.Ct. 1510 (2012) – Strip
searches, even when the offense is
very minor
U.S. v. Jones
Typical legal advisor moment
Officers apply for and receive a warrant that
allows, within 10 days, the placement of a GPS
device on a car within the District of Columbia.
Officers then place the GPS device on the
th
car on the 11 day in Maryland.
Resulting in a 2005 case being decided by the
SCOTUS in 2012.
U.S. v. Jones



Vehicle tracked for 28 days; over 2,000 pages of
data collected.
Motion to suppress denied by the trial court,
except for time the vehicle was in Jones’
residential garage, because: “…[a] person
traveling in an automobile on public thoroughfares
has no reasonable expectation of privacy in his
movements from one place to another.”
The trial court concluded that there was no
search and therefore no 4th Amendment violation.
U.S. v. Jones
 D.C. Circuit reversed, holding that the
evidence gained from the GPS device
was inadmissible because collection of a
month’s worth of data violated Jones’
reasonable expectation of privacy.
U.S. v. Jones
The question before the Supreme Court:
“…whether
the attachment of a GlobalPositioning-System (GPS) tracking device
to an individual’s vehicle, and subsequent
use of that device to monitor the vehicle’s
movements on public streets, constitutes a
search or seizure within the meaning of
the Fourth Amendment.”
U.S. v. Jones
Answer: Yes, clearly as far as Justice Scalia
is concerned:
th
1. The 4 covers persons, houses,
papers and effects – a vehicle is clearly an
effect.
2. The installation and use of the GPS
device is a search.
Why? Because it requires a trespass on
property.
U.S. v. Jones
“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.”
U.S. v. Jones
The Court reintroduces us to a concept
th
that was the basis of the 4 Amendment
prior to the Katz decision in 1967 –
trespass upon the protected property of
another for information gathering
th
purposes is a search under the 4
Amendment.
U.S. v. Jones
At the same time, the Court recognizes
that property rights are not the sole
measure of the 4th Amendment. The
more recently used test – whether the
area searched is one in which a person
has a “reasonable expectation of
privacy” continues to apply, as a
supplement to the rule regarding
trespass.
U.S. v. Jones
The Government attempted to save the
evidence by arguing that, even if the
placement and tracking was a search, it was
reasonable and therefore lawful, given the
evidence that existed concerning Jones’ illegal
activities.
The Court refused to discuss that argument,
treating it as waived because it had not been
raised in the lower courts.
Florence v. County of Burlington
or what’s a little strip search now and again
Police arrested Florence on an outstanding bench
warrant for failure to appear at a hearing on an
overdue fine (he had in fact paid the fine about a week
late, two years before). He was held in one jail for six
days and then transferred to a second jail for one day,
after which the charges were dismissed. At each jail
he was subjected to a visual strip search – required to
strip and expose the most private areas of his body to
permit close visual inspection.
Florence v. County of Burlington
Filed suit under 42 U.S.C. §1983, arguing that:
1. Routine strip searches for minor offenses
violated the 4th Amendment.
2. Such searches required a reason to believe
that the inmate was concealing contraband or
weapons.
Florence v. County of Burlington
Based primarily on the realities of trying to
keep contraband out of prisons, the Supreme
Court upheld the strip searches.
The Court held that such a search of a person
who is being placed in the general population
of a jail strikes a reasonable balance between
inmate privacy and the needs of the
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institutions under the 4 Amendment.
.
Due Process
 Perry v. New Hampshire, 132 S.Ct.
1510 (2012) – Due Process and the
admissibility of reliable evidence.
Perry v. New Hampshire
“Asked to describe what she had seen, Blandon stated
that, around 2:30 a.m., she saw from her kitchen window
a tall, African-American man roaming the parking lot and
looking into cars. Eventually, the man circled Clavijo's
car, opened the trunk, and removed a large box.
Clay asked Blandon for a more specific description of the
man. Blandon pointed to her kitchen window and said the
person she saw breaking into Clavijo's car was standing
in the parking lot, next to the police officer. Perry's arrest
followed this identification.”
Perry v. New Hampshire
A month later, the eyewitness was unable to
identify the defendant in a photo lineup.
Defense claimed that what had occurred was
essentially the same as a one-person
showup and sought to suppress the
identification on the grounds that admitting it
at trial would violate due process.
Perry v. New Hampshire
General rule
Due process prohibits the introduction of an out-ofcourt identification if:
1.The police use an identification procedure that is
both unnecessary and suggestive AND
2.The reviewing court determines, on the facts of the
case before it, that the improper police conduct
tainted the resulting identification, rendering it
unreliable and therefore, inadmissible.
Perry v. New Hampshire
This identification was spontaneous and not the result
of inducement from the police. The witness was not
asked if that guy over there was the person she saw,
but rather was asked to provide a description of the
suspect. The witness moved to a point from which she
could see the suspect and pointed him out as the
person she had seen committing the crime.
Because no police conduct was involved, the reliability
of the identification was for the jury to decide.
Perry v. New Hampshire
“…we hold that the Due Process Clause
does not require a preliminary judicial
inquiry into the reliability of an
eyewitness identification when the
identification was not procured under
unnecessarily suggestive circumstances
arranged by law enforcement.”
Qualified immunity



Malley v. Briggs
Filarsky v. Delia
Rehberg v. Paulk
 Messerschmidt v. Millender,
132 S. Ct. 1235 (2012)
 Ryburn v. Huff, 132 S.Ct. 987
(2012)
SIDEBAR FOR THOSE WHO INSTRUCT OFFICERS
In discussions of qualified immunity cases with officers, it is always important to
remind them of two things:
First, the status of the case at the time of decision – in most situations,
these cases are decided early on in the process and the facts are presumed to
be those that favor the person bringing the suit. The determination of the facts
by a judge or jury comes later, if the case goes to trial.
Second, the key issue for us is qualified immunity. The officers will
receive qualified immunity, and the case will be dismissed against them, in two
situations:
1. if, taken in the light most favorable to the party asserting the injury, the
facts alleged do not show the officer's conduct violated a constitutional
right or
2. if the right violated was not clearly established at the time of the
violation.
Messerschmidt v. Millender
Officers prepared a search warrant to search the last
known address of a known gang member who had
threatened his ex-girlfriend and tried to kill her, firing a
sawed off shotgun at her five times because she had
“called the cops” on him. They prepared a warrant and
affidavit, which was reviewed and approved by their
supervisors and the district attorney’s office and then
presented to a magistrate who issue the search
warrant. The warrant authorized a search for gang
indicia and any device that could fire ammunition, any
ammunition and any firearm-related materials.
Messerschmidt v. Millender
After the warrant was executed, the defendant’s family sued,
claiming the warrant was overbroad. The District Court agreed
and denied the officers qualified immunity. The 9th Circuit
upheld the District Court, holding that neither the warrant nor the
affidavit provided any basis for concluding there was PC to
search for or seize any other firearms or any gang related
materials. The court held that the officers should have known
that there was no PC and that their conduct was in violation of
existing law.
The U.S. Supreme Court reversed the 9th Circuit.
Messerschmidt v. Millender
The Court does not determine whether PC existed in
this case, though it argues that it did. The Court
simply finds that whether or not the officers were
mistaken about the existence of PC, their
determination that there was probable cause was
not “plainly incompetent” and that, on that basis
alone, qualified immunity should have been granted.
Messerschmidt v. Millender
An officer has qualified immunity when the officer takes actions that
are reasonable in light of the clearly established law at that time.
When reviewing questions related to the validity of a search warrant
under the 4th Amendment:
…the fact that a neutral magistrate has issued a warrant is
the clearest indication that the officers acted in an objectively
reasonable manner or, as we have sometimes put it, it objective
good faith.
Messerschmidt v. Millender
There is one exception to this rule: an affidavit “so
lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable.”
The Supreme Court in Messerschmidt makes it clear
that “the threshold for establishing this exception is a
high one, and it should be.” When a magistrate finds a
warrant to be based on probable cause, it is unlikely
that the finding of probable cause will be so lacking as
to be “entirely unreasonable.”
Messerschmidt v. Millender
The Court points out that the officers in this case had their
warrant application and draft warrant reviewed and
approved by their sergeant, their lieutenant and an
assistant district attorney before taking it to the magistrate
for approval. In other words, the Court notes, “the officers
thus took every step that could reasonably be expected of
them.” To decide otherwise, according to the Court, would
mean that not only the officers but their supervisors, the
attorney and the magistrate were all “plainly incompetent.”
Qualified immunity was granted.
Huff v. City of Burbank, 632 F.3d 539 (9th Cir.
2011)
The facts according to the 9th Circuit:
Four officers responded to a local school concerning rumors that a
particular student was going to “shoot up” the school. After
discussions with school authorities, the officers went to the student’s
home. Two of the officers approached the house; two waited out on
the sidewalk. Eventually the mother (Maria) and the student (Vincent)
came out of the house and stood on the front steps. One of the
officers asked if they could go inside to talk; Maria said no. One of
the officers asked Maria if there were any guns in the home; she
responded that she would go get her husband and turned and went
into the house.
One of the officers followed her inside; the other officer followed. The
other two officers, who had been on the sidewalk, assumed that Maria
had given consent to enter and also entered the home.
Ryburn v. Huff, 132 S.Ct. 987 (2012)
the facts according to the U.S.S.Ct.
Four officers responded to a local school concerning rumors that a
student, Vincent Huff, was going to “shoot up” the school. Officers
learned that the rumors had resulted in a number of parents
keeping their children home. Officers interviewed his classmates,
who said he had been absent for two days, was often bullied, and
they believed he was capable of carrying out the threat.
Officers when to the home. They knocked and announced, and
called the home phone. No one responded. The sergeant then
called Mrs. Huff’s cell phone, identified himself, and asked about
her location. She advised she was in the house and that Vincent
was inside with her. The sergeant asked her to come outside and
speak with them; she hung her phone.
Ryburn v. Huff
Two minutes later, she and Vincent came out to the front
steps. One of the officers told them they were there to
discuss the threats. The sergeant asked if they could
continue the discussion inside; Mrs. Huff refused, which the
sergeant thought was unusual. The sgt. then asked if there
were any guns in the house and Mrs. Huff responded by
“immediately turning around and running into the house.”
The sergeant and one other officer followed her inside.
Ryburn v. Huff
Officers were entitled to qualified immunity, as it was reasonable
for officers to believe that they were entitled to enter if they had a
reasonable basis for concluding that there was an imminent
threat of violence.
The fact that all of Mrs. Huff’s conduct was lawful does not mean
that it was not a cause for alarm.
“It should go without saying, however, that there
are many circumstances in which lawful conduct
may portend imminent violence.”
Ryburn v. Huff (USSCt.
2012)
Supreme Court:
A reviewing court must not look at each separate act
individually and in isolation, but must look at the events
as a whole:
“…it is a matter of common sense that a
combination of events each of which is mundane
when viewed in isolation may paint an alarming
picture.”
Ryburn v. Huff (USSCt.
2012)
And finally, the Court relied on its prior language in the use of force case,
Graham v. Connor, to remind courts that:
“…reasonableness ‘must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision
of hindsight’ and that ‘[t]he calculus of reasonableness must
embody allowance for the fact that police officers are often
forced to make split-second judgments—in circumstances that
are tense, uncertain, and rapidly evolving.’ Judged from the
proper perspective of a reasonable officer forced to make a splitsecond decision in response to a rapidly unfolding chain of
events that culminated with Mrs. Huff turning and running into
the house after refusing to answer a question about guns,
petitioners' belief that entry was necessary to avoid injury to
themselves or others was imminently reasonable.”
AEDPA (Antiterrorism and Effective
Death Penalty Act of 1996)
 Bobby v. Dixon, 132 S. Ct. 26
(2011)
 Howes v. Fields, 132 S. Ct.
1181 (2012)



Colemen v. Johnson,
Hardy v. Cross
Wetzel v. Lambert
AEDPA
Under the AEDPA, in order for a federal court to
issue a writ of habeas corpus, the court must
find the state court’s decision was either:
Contrary to, or involved an unreasonable
application of, clearly established Federal
law, as set forth by the Supreme Court, or
Based on “an unreasonable determination
of the facts” in light of the state court
record.
Bobby v. Dixon
Archie Dixon and Tim Hoffner murdered Chris
Hammer, buried him alive, used his ID to obtain a
state identification card and then sold Hammer’s car
for $2800. Dixon was convicted of murder,
kidnapping, robbery and forgery and was sentenced
to death. The Ohio Supreme Court affirmed.
Sixth Circuit Court of Appeals issued a writ, finding
three “egregious errors” in the decision of the Ohio
Supreme Court.
Bobby v. Dixon
Without the detailed facts (and there are many), here are
the three holdings by the Sixth Circuit that the U.S.
Supreme Court rejected.
th
6
1. The
held that Dixon could not be interrogated after
his arrest because he had previously invoked his right to
counsel during a conversation with a detective at a time
when he was not in custody. The U.S. Supreme Court
indicated that it has “never held that person can invoke
his Miranda rights anticipatorily, in a context other than
custodial interrogation.”
Bobby v. Dixon
th
6
2. The
Circuit held that it was a violation of
the 5th Amendment for police to urge Dixon to
“cut a deal” before his accomplice did so. The
Supreme Court noted that “no holding of this
Court suggests, much less clearly
establishes, that the police may not urge a
suspect to confess before another suspect
does so.”
Bobby v. Dixon
th
6
3. The
Circuit held that Dixon had been
subjected to an improper interrogation
technique (a deliberate question-first, warnlater strategy that the Supreme Court had ruled
unconstitutional in Seibert v. Missouri). The
Supreme Court disagreed, finding that no such
strategy had been used in this case.
Bobby v. Dixon
“Because it is not clear that the Ohio
Supreme Court erred at all, much
less erred so transparently that no
fair-minded jurist could agree with
that court’s decision, the Sixth
Circuit’s judgment must be reversed.
“
Howes v. Fields
Another AEDPA case; another 6th Circuit decision
The 6th Circuit held that it is clearly established law “that
the questioning of a prisoner is always custodial when the
prisoner is removed from the general prison population
and questioned about events that occurred outside the
prison.”
In fact, according to the Supreme Court: “On the
contrary, we have repeatedly declined to adopt any
categorical rule with respect to whether the
questioning of a prison inmate is custodial.”
Fields was serving a sentence in jail for disorderly
conduct. He was taken from his cell by a corrections officer
to a conference room where he was questioned by two
deputies about allegations that he had engaged in sexual
conduct with a 12 year old boy. At the beginning of the
interview, he was told that he was free to leave and return
to his cell; he was later told that he could leave whenever
he wanted. The deputies were armed but he was not
cuffed or otherwise restrained. The door was sometimes
open and sometimes shut; he was offered food and drink.
He told the deputies several times that he no longer wanted
to talk with them, but he never asked to go back to his cell.
The interview lasted well past the hour when he usually
went to bed; one officer spoke to him in a very sharp tone
and on one occasion used profanity.
After 5-7 hours of interrogation, he confessed. When
he was finally ready to return to his cell, he had to wait 20
minutes for an escort.
According to the Court, Fields was not physically restrained or threatened,
was in a comfortable room, was offered food and water and the door was
left open. The court emphasized “the undisputed fact that [Fields] was told
he was free to end the questioning and return to his cell.”
The Court noted that interrogation of a prisoner is different from
interrogation following arrest for at least three reasons:
1. There is none of the shock that accompanies an arrest
2. A prisoner is unlikely to be lured into speaking in order gain a
prompt release
3. A prisoner knows that the law enforcement officers who are
questioning him lack the authority to affect the length of his sentence.
The Supreme Court held that Fields was not in custody for purposes of
Miranda.
First, Eighth, Supremacy Clause


U.S. v. Alvarez, 132 S. Ct. 2537
(2012) – Stolen Valor Act
Miller v. Alabama, 132 S. Ct. 2455
(2012) – Mandatory life in prison without
parole for juveniles

U.S. v. Arizona, 132 S. Ct. 2492
(2012) – immigration and preemption
U.S. v. Alvarez
Supreme Court struck down, as a
content-based restriction on free speech
violative of the First Amendment, the
Stolen Valor Act, which criminalized the
false claim of receipt of a military
decoration or medal.
Miller v. Alabama
Mandatory life without parole for
those under the age of 18 at the
time of their crimes violates the
Eighth Amendment's prohibition on
"cruel and unusual punishment.”
U.S. v. Arizona
Senate Bill 1070
Four sections of SB 1070 were
challenged by the U.S. as being
preempted by federal law.
 A.R.S. §13-1509 - Willful failure to complete or carry an
alien registration document; assessment; exception;
authenticated records. PREEMPTED

A.R.S. §13-2928(C) – The portion of the statute that
makes it a misdemeanor for an unauthorized alien to seek
or engage in work in the State. PREEMPTED

A.R.S. §13-3883(A)(5) – The portion of the statute that
authorizes officers to arrest without a warrant when an
officer has probable cause to believe a person has
committed any public offense that makes the person
removable from the United States. PREEMPTED
 A.R.S. §11-1051(B) – Cooperation and assistance in the
enforcement of immigration laws. MAYBE…
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6
Amendment
The Court also decided a series of Sixth
Amendment cases, none of which are of
importance to officers, per se, but will be of
interest to those of you who are trying to keep
track of the confrontation clause of the U.S.
Constitution.





Coleman v. Thompson
Maples v. Thomas
Martinez v. Ryan
Missouri v. Frye
Lafler v. Cooper
Preview of coming attractions
Bailey v. U.S. – May officers detain a person who has already left the
premises before the execution of a search warrant?
Florida v. Jardines –
1. Whether a dog sniff at a front door is a Fourth Amendment
search, requiring probable cause?
2. Whether officers waiting outside a house to obtain a search
warrant are participating in a Fourth Amendment search?
Perhaps the most watched case (so far) in the upcoming term is the
affirmative action case of Fisher v. University of Texas.
Questions??
Bev. Ginn
520.444.4469
bevginn@gmail.com
Edwards & Ginn, P.C.
Serving Arizona Law Enforcement
P.O. Box 68097
Tucson, AZ 85737