No. 15-1983
In the Supreme Court of the United States
UNITED STATES,
Petitioner,
v.
ROY CAMPBELL,
Respondent.
On Writ of Certiorari
to the United States Court Of Appeals
for the Thirteenth Circuit
BRIEF FOR RESPONDENT
Color of Cover: Red
Team No. 482
Brooklyn Regional
Brief for Respondent
i
STATEMENT OF THE ISSUES
I.
Whether a police officer has a reasonable expectation of privacy in his
locker absent a written policy notification that supervisors may perform
non-investigatory, work-related searches.
II.
Whether a police officer’s actions in the course of his employment can
constitute a hate crime under 18 U.S.C. § 249.
ii
TABLE OF CONTENTS
STATEMENT OF THE ISSUES ................................................................................... ii
TABLE OF CONTENTS ............................................................................................... iii
TABLE OF AUTHORITIES .......................................................................................... v
JURISDICTIONAL STATEMENT ............................................................................... v
STATEMENT OF FACTS ............................................................................................. 1
STATEMENT OF THE CASE ....................................................................................... 3
STANDARD OF REVIEW ............................................................................................. 4
SUMMARY OF THE ARGUMENT .............................................................................. 5
ARGUMENT .................................................................................................................. 6
I.
A POLICE OFFICER HAS A REASONABLE EXPECTATION OF
PRIVACY IN HIS LOCKER ABSENT A WRITTEN POLICY NOTIFICATION
THAT SUPERVISORS MAY PERFORM NON-INVESTIGATORY, WORKRELATED SEARCHES. ......................................................................................... 6
A.
A Police Officer Has a Constitutionally Protected Expectation of Privacy
in the Contents of His Department-Issued Locker. ............................................... 6
B.
The Police Department has No Written Policy Giving Officers Notice
that Their Lockers are Subject to Warrantless Searches. ................................... 10
C.
The Search was Not Conducted for a Work-Related Purpose and No
Exigency Exception to the Warrant Requirement Applies. ................................ 12
II. A POLICE OFFICER CANNOT COMMIT A HATE CRIME UNDER 18 U.S.C.
§ 249 BECAUSE THE UNDERLYING FACTORS PRESENT WHILE ON DUTY
OVERRIDE ANY RACIAL ANIMUS. ................................................................................. 16
A.
18 U.S.C. § 249 Has Never Been Applied to Police Officers. ..................... 16
iii
B.
If 18 U.S.C. § 249 Does Apply, the Standard Should be Higher for Police
Officers................................................................................................................... 18
i. Racial Animus Must Be the Motivating Factor Because Being Racist Alone is
Insufficient. ........................................................................................................... 18
ii. The Miller Standard Needs to be Interpreted in Light of the Circumstances
Surrounding an Officer’s Duties. .......................................................................... 22
CONCLUSION............................................................................................................. 26
iv
TABLE OF AUTHORITIES
Cases
UNITED STATES SUPREME COURT
California v. Ciraolo, 476 U.S. 207 (1986) ............................................................ 4
Camara v. Municipal Court, 387 U.S. 523 (1967) ................................................ 13
Graham v. Connor, 490 U.S. 386 (1989) ............................................................... 24
Katz v. United States, 389 U.S. 347 (1967) .......................................................... 6,7
Kentucky v. King, 563 U.S. 452 (2011) ................................................................. 13
Mancusi v. DeForte, 392 U.S. 364 (1968) ............................................................. 7
Maryland v. Wilson, 519 U.S. 408 (1997) ............................................................. 23
Michigan v. Summers, 452 U.S. 692 (1981).......................................................... 24
New Jersey v. T.L.O., 469 U.S. 325 (1985) ........................................................... 13
O’Connor v. Ortega, 480 U.S. 709 (1987)………………………………………..passim
Pearson v. Callahan, 555 U.S. 223 (2009) ............................................................ 17
United States v. Burrage, 134 S. Ct. 881 (2014) .................................................. 18
United States v. Jones, 132 S. Ct. 945 (2012) ...................................................... 6
Wisconsin v. Mitchell, 508 U.S. 476 (1993) .......................................................... 19,20
v
UNITED STATES COURT OF APPEALS
Biehunik v. Felicetta, 441 F.2d 228 (2d. Cir. 1971) ............................................. 14,15
Kirkpatrick v. City of Los Angeles, 803 F.2d 485 (9th Cir. 1986) ....................... 14
Schowengerdt v. United States, 944 F.2d 483 (9th Cir. 1991)............................. 10,11
Terrell v. Smith, 668 F.3d 1244 (11th Cir. 2012) ................................................. 25
United States v. Bunkers, 521 F.2d 1217 (9th Cir. 1975) .................................... 8,9
United States v. Cannon, 750 F.3d 492 (5th Cir. 2014) ....................................... 4
United States v. Grant, 683 F.3d 639 (5th Cir. 2012) .......................................... 4
United States v. Harris, 293 F.3d 863 (5th Cir. 2002) ......................................... 4
United States v. Maybee, 687 F.3d 1026 (8th Cir. 2012) ..................................... 18
United States v. Miller, 767 F.3d 585 (6th Cir. 2014)…………………………passim
United States v. Speights, 557 F.2d 362 (3rd Cir. 1977) ..................................... 8,10
United States v. Steed, 548 F.3d 960 (11th Cir. 2008) ......................................... 4
United States v. Taketa, 923 F.2d 665 (9th Cir. 1991) ........................................ 10,11
Vaughan v. Cox, 343 F.3d 1323 (11th Cir. 2003) ................................................. 26
vi
UNITED STATES DISTRICT COURTS
Chicago Fire Fighters Union, Local 2 v. City of Chicago, 717 F. Supp. 1314 (N.D. Ill.
1989)………………………………………………………………………………. 10,11
Kirk v. City of Kokomo, 772 F. Supp. 2d 983 (S.D. Ind. 2011) ............................ 10
Lowe v. City of Macon, 720 F. Supp. 994 (M.D. Ga. 1989)................................... 14,15
Rosales v. City of Bakersfield, 2007 WL 1847628 (E.D. Cal. June 27, 2007)...... 17
STATE COURTS
Ayers v. State, 335 Md. 602 (1994) ....................................................................... 20
Dobbins v. State, 605 So.2d 922 (Fla. 5th DCA 1992) .......................................... 20
In re M.S., 10 Cal.4th 698 (Cal. 1995) .................................................................. 21
Pacheco v. City of New York, 104 A.D.3d 548 (N.Y. App. Div. 2013) .................. 23,24
People v. Brown, 83 Ill. App. 3d 741 (Ill. App. 1980) ........................................... 25
People v. Davis, 285 Ill. App. 3d 875 (Ill. App. Ct. 1996) ..................................... 19
People v. MacKenzie, 34 Cal.App.4th 1256 (Cal. App. 1995)............................... 19
People v. Prisinzano, 170 Misc.2d 525 (N.Y. Crim. Ct. 1996) .............................. 20
People v. Superior Court (Aishman), 32 Cal.App.4th 1350 (Cal. App. 1993) ...... 19
Richards v. State, 608 So.2d 917 (Fla. 3rd DCA 1992) ........................................ 20
vii
Schultz ex rel. Schultz v. Pojoaque Tribal Police Dep't, 317 P.3d 866 (N.M. Ct. App.
2014) ............................................................................................................ 21,23
State v. Furne, 642 S.W.2d 614, 615 (Mo. 1982) .................................................. 25
State v. Hennings, 791 N.W.2d 828 (Iowa 2010) .................................................. 20-22
Watson v. State, 986 A.2d 1165 (Del. 2010) ......................................................... 25
White v. Beasley, 453 Mich. 308 (1996) ................................................................ 23
Constitution
U.S. CONST. AMEND. IV. ......................................................................................... 6
Federal Rules
FED. R. CRIM. P. 12(b)(3)(C). ............................................................................... 4
Federal Statutes
18 U.S.C. § 249………………………………………………………………………passim
28 U.S.C. § 1254(1) ................................................................................................ 1
42 U.S.C. § 1983 ..................................................................................................... 17
State Statutes
CAL. PENAL CODE § 832.5 ....................................................................................... 17
D.C. Code Ann. § 5-1104 ........................................................................................ 17
IOWA CODE § 792A.2............................................................................................... 21
viii
Other Authorities
Liza I. Karsai, You Can't Give My Name: Rethinking Witness Anonymity in Light of
the United States and British Experience, 79 TENN. L. REV. 29 (2011) ... 23
Yanan Wang, Should attacking police officers become a hate crime? A Minnesota
city says yes., WASHINGTON POST (Oct. 8, 2015),
https://www.washingtonpost.com/news/morning-mix/wp/2015/10/08/shouldattacking-police-officers-become-a-hate-crime-a-minnesota-city-saysyes/............................................................................................................... 23
ix
JURISDICTIONAL STATEMENT
The decision of the court of appeals was filed on October 20, 2015. R. at 17. The
order granting certiorari was entered on November 3, 2015. R. at 18. The jurisdiction
of this Court is invoked under 28 U.S.C. § 1254(1).
STATEMENT OF FACTS
On June 19, 2013, Officer Roy Campbell—a twenty-three year old rookie
member of the New Jacksonville police force in New Jacksonville, Old York—was on
his first day on patrol by himself. Id. Officer Campbell was wearing a police
department issued Axon body camera on this day. R. at 5. Michael Jennings was
driving a black 2013 Mercedes sedan when Officer Campbell observed Mr. Jennings
changing lanes without signaling. R. at 3. Upon witnessing this traffic infraction,
Officer Campbell pulled Mr. Jennings over. Id. Officer Campbell believed that there
was something suspicious about Mr. Jennings driving that particular car. Id.
As Officer Campbell approached the car and asked Mr. Jennings for his license
and registration, Mr. Jennings became combative and immediately started
questioning Officer Campbell as to why he pulled him over. Id. Officer Campbell
proceeded to ask Mr. Jennings where he got the car, to which Mr. Jennings replied
that it was a birthday gift from his father. Id. Officer Campbell did not believe this
statement and asked Mr. Jennings to step out of the car, which Mr. Jennings refused
to do. Id. Mr. Jennings proceeded to ask if he had been pulled over for “Driving While
Black”. R. at 4. Officer Campbell did not indicate why Mr. Jennings had been pulled
1
over. Id. Officer Campbell then asked Mr. Jennings to remove his seatbelt and
proceeded to open the car door. Id. Mr. Jennings again did not comply with Officer
Campbell’s lawful order, but instead closed the car door and restarted his car. Id.
The body camera that Officer Campbell was wearing captured the following
events after Mr. Jennings restarted the car: Officer Campbell stepped back, Mr.
Jennings revved his engine, and Officer Campbell reached into the car and grabbed
the steering wheel with his left hand; Officer Campbell then yelled “stop” and “turn
off the engine”, he then drew his gun, fired once, and fell backwards. Id. This
interaction happened in less than ten seconds. Id.
After the incident, Officer Campbell was placed on desk duty while a standard
officer-involved shooting investigation was pending. R. at 6. Officer Campbell had a
department issued locker at the police station, on which he replaced the departmentissued lock with a personal lock. R. at 7. Officer Campbell used the department locker
to hold not only police department property, but also personal effects including family
photographs, a change of clothes, his wallet, and his cell phone. R. at 14. Two days
after the Jennings incident, Officer Graham, an officer within the New Jacksonville
Police Department holding the same rank as Officer Campbell, used bolt cutters to
cut Officer Campbell’s personal lock off of his locker at the police station. R. at 7.
Officer Graham was not Officer Campbell’s supervisor, nor was he acting as part of
the pending investigation into the Jennings incident. Id. A year before Officer
Campbell joined the New Jacksonville Police Department, the department conducted
2
an unannounced search of all lockers as part of a large-scale corruption investigation.
R. at 9.
STATEMENT OF THE CASE
Officer Campbell was subsequently indicted under 18 U.S.C. § 249. R. at 2.
Officer Campbell waived his right to a jury trial and received a bench trial presided
over by Judge Marshall. R. at 2, 13. The district court determined that Officer
Campbell did not have a reasonable expectation of privacy in his locker and denied
the motion to suppress. R. at 10. The district court further determined that Officer
Campbell was guilty of a hate crime under § 249. R. at 13. Judge Marshall stated that
regardless of the interpretation applied to § 249, but for the race of Mr. Jennings
Officer Campbell would not have pulled him over, and that Officer Campbell’s alleged
comments represented a substantial motivating factor in the incident. Id.
Officer Campbell appealed the district court’s decision denying the motion to
suppress evidence and the conviction to the United States Court of Appeals for the
Thirteenth Circuit. R. at 14. Chief Judge Beauregard reversed both the district court’s
denial of the motion to suppress and the judgment against Officer Campbell under §
249. R. at 17. The Court held that a warrant was required to conduct a search of
Officer Campbell’s locker, and without the video provided by the body cam, there was
no evidence to support a hate crime charge under § 249. Id. The Court further found
that even with the evidence provided by the body cam, Officer Campbell would not be
guilty of a hate crime. Id. The Government petitioned this Court for further review of
these issues. R. at 18. This Court granted certiorari to determine whether Officer
3
Campbell had a reasonable expectation of privacy in his locker and whether his
actions constituted a hate crime under 18 U.S.C. § 249. Id.
STANDARD OF REVIEW
A Motion to Suppress evidence obtained from an unlawful search must be
raised before trial. FED. R. CRIM. P. 12(b)(3)(C). The legality of a search hinges on
whether an individual has a constitutionally protected expectation of privacy under
the Fourth Amendment. California v. Ciraolo, 476 U.S. 207, 207 (1986). The moving
party bears the burden of proving that the expectation of privacy was objectively
reasonable, and consequently, the non-moving party conducted an illegal search in
violation of his Fourth Amendment rights. Id. Following the denial of a Motion to
Suppress, the district court’s findings of fact are reviewed under a clearly erroneous
standard and construed in the light most favorable to the prevailing party—in this
case, Officer Graham. United States v. Steed, 548 F.3d 960, 966 (11th Cir. 2008). The
Court’s application of the law to those facts—whether Officer Graham’s conduct
infringed upon Officer Campbell’s Fourth Amendment rights—is subject to de novo
review. Id.
The standard of review for challenging the sufficiency of the evidence in
relation to § 249(a)(1) is de novo. United States v. Cannon, 750 F.3d 492, 506 (5th Cir.
2014) (citing United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012)). The review
is “highly deferential to the verdict.” United States v. Harris, 293 F.3d 863, 869 (5th
Cir. 2002).
4
SUMMARY OF THE ARGUMENT
The Appellate Court correctly reversed the denial of the Motion to Suppress,
because Officer Campbell had a reasonable expectation of privacy in his police locker
under the Fourth Amendment. The New Jacksonville Police Department did not have
a written policy notifying officers that their lockers would be subject to warrantless
searches. The search and seizure of the body camera was also performed by a nonsupervisory employee and was conducted for an improper law enforcement purpose.
In order to succeed in a charge under 18 U.S.C. § 249, the prosecution must
prove that actions were committed “because of” the perceived race of the victim. 18
U.S.C. § 249. In United States v. Miller, the court held that “because of” requires that
racial animus by the defendant has a “but for” causal link to the actions charged. 767
F.3d 585 (6th Cir. 2014). When dealing with the conduct of police officers, it cannot
be said that any racial animus which may exist is the “but for” cause of any actions
due to the underlying motivations all police officers have when acting within the
course of their duty. These considerations include the overarching need for the safety
of the public and the safety of themselves. As such, when an officer is charged with a
hate crime under 18 U.S.C. § 249, these considerations must be taken into account
and the charge cannot stand without a clear showing that racial animus was the
motivating factor of such conduct. In the current case, the Appellate Court was correct
in finding that there was no evidence of racial animus influencing Officer Campbell’s
actions.
5
ARGUMENT
I.
A POLICE OFFICER HAS A REASONABLE EXPECTATION OF
PRIVACY IN HIS LOCKER ABSENT A WRITTEN POLICY NOTIFICATION
THAT SUPERVISORS
RELATED SEARCHES.
MAY
PERFORM
NON-INVESTIGATORY,
WORK-
The Fourth Amendment of the United States Constitution protects the right of
citizens “to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures” and maintains that “no warrant shall issue, but
upon probable cause … describing the place to be searched, and the person or things
to be seized.” U.S. CONST.
AMEND.
IV. The Fourth Amendment is not a general
constitutional right to privacy. Katz v. United States, 389 U.S. 347, 350 (1967). At
the time of its adoption, the Fourth Amendment’s protective reach was tied to the
common-law trespass test. United States v. Jones, 132 S. Ct. 945, 947 (2012). Later
cases have deviated from the Founders’ exclusively property-based approach and
have added a “reasonable-expectation-of-privacy test” to the inquiry into the legality
of a government search and seizure. See generally Katz, 389 U.S. 347. The Katz test
consists of two prongs: (1) Whether the individual exhibits “an actual [subjective]
expectation of privacy” and (2) whether his expectation is “one that society is prepared
to recognize as [objectively] ‘reasonable.’” Id. at 361 (Harlan, J., concurring).
A. A Police Officer Has a Constitutionally Protected Expectation of Privacy in the
Contents of His Department-Issued Locker.
Searches and seizures conducted by government employers or supervisors of
their employees’ private property are subject to Fourth Amendment restraints.
6
O’Connor v. Ortega, 480 U.S. 709, 715 (1987). The Fourth Amendment’s protection
against unreasonable searches does not diminish merely because the individual
works for the government instead of a private employer. Id. at 717. Although the
workplace includes areas that are related to employment and generally under the
employer’s control, the legality of a workplace search does not turn on the employee’s
property interest in the invaded space, but whether the area is one where he has a
reasonable expectation of freedom from governmental intrusion. Mancusi v. DeForte,
392 U.S. 364, 368 (1968) (citing Katz, 389 U.S. at 352). The standard for determining
whether an employee’s private property may be searched is “reasonable under all the
circumstances” and must be addressed according to the specific facts of each case.
Ortega, 480 U.S. at 710, 718.
In Ortega, state hospital officials concerned about a physician’s inappropriate
management of the psychiatric residency program placed him on administrative
leave, selected several hospital personnel to conduct an investigation of his office, and
seized both personal and state property from his desk and file cabinets. 480 U.S. at
709. The Court ruled that although “operational realities of the workplace” may
entitle supervisors to make reasonable intrusions, the physician had a reasonable
expectation of privacy in the areas searched, as evidenced by his exclusive use of the
office and storage of non-work-related personal correspondence. Id. at 717-8. See also
Mancusi, 392 U.S. 364 (holding that an union employee had standing to challenge the
warrantless search and seizure of records from his desk and file cabinet in a shared
office, because he was entitled to a reasonable expectation that his personal effects
7
would not be disturbed except with his permission or by his superiors); United States
v. Speights, 557 F.2d 362 (3rd Cir. 1977) (ruling that a police officer had a reasonable
expectation of privacy in the contents of his locker—even though the locker was
owned by the police department, was designed for storing police equipment, and could
be opened by a master key—due to the absence of regulations concerning using
private locks and stowing personal items). Contra United States v. Bunkers, 521 F.2d
1217, 1219 (9th Cir. 1975) (finding that a postal employee’s locker was government
property, furnished as incident to her employment, and subject to search upon
reasonable suspicion of criminal activity).
The Appellate Court correctly reversed the district court’s denial of Officer
Campbell’s motion to suppress, because he is entitled to a reasonable expectation of
privacy in his locker under the Fourth Amendment. Similar to the physician’s
personal and employment-related use of his office space in Ortega, Officer Campbell
used his department-assigned locker to store police equipment (body camera) as well
as personal property, including family photographs, a change of clothes, his wallet,
and his cell phone. R. at 14. Following the Court’s reasoning in Ortega, Officer
Campbell may reasonably expect that such effects would remain private absent his
consent to a search or a warrant based on probable cause. He further manifested an
expectation of privacy in the contents of his locker by replacing the department-issued
lock with a personal lock. R. at 7. The facts in the present case are analogous to those
in Speights, which extended the Ortega Court’s determination that public employees,
such as police officers, do not lose Fourth Amendment rights simply because they
8
work for the government. Although the New Jacksonville Police Department is in
charge of assigning individual lockers to its officers, the record is silent with regard
to the existence of any regulations concerning the use of private locks or keeping
personal items in these lockers. Without such policies, the fact that the Police
Department provides locks and presumably keeps a master key is immaterial to the
Fourth Amendment analysis. R. at 16.
Petitioner argues that Ortega accepted that “operational realities of the
workplace” may render certain privacy expectations unreasonable or reduces the
privacy expectation by “virtue of actual office practices and procedures.” 480 U.S. at
717. As illustrated in Bunkers, the warrantless search of a postal employee’s
government-owned locker was not unreasonable, because she had been fully advised
of existing regulations authorizing such investigations. However, Ortega clearly
explained that public employee’s privacy expectations may be unreasonable only
when the intrusion is by a supervisor rather than a law enforcement official. Officer
Graham acted out of the scope of his authority when he used bolt cutters to get into
Officer Campbell’s locker and removed the body camera. R. at 7. The appropriate
course of action would have been to report his suspicions to his superiors. R. at 14.
Bunkers is also distinguishable, because the New Jacksonville Police Department has
no policy that allows officers to search the personal spaces of their coworkers. Officer
Campbell had a reasonable expectation of privacy in the contents of his locker;
accordingly, the warrantless search and seizure of his body camera violates the
Fourth Amendment and any evidence obtained from the video must be suppressed.
9
B.
The Police Department has No Written Policy Giving Officers Notice that
Their Lockers are Subject to Warrantless Searches.
A government employee enjoys a reasonable expectation of privacy in areas
given over to his exclusive use unless he is put on notice by his employer that searches
may occur from time to time for work-related purposes. Schowengerdt v. United
States, 944 F.2d 483 (9th Cir. 1991). Otherwise reasonable privacy expectations in
personal spaces may be reduced or defeated by the existence of legitimate regulations.
Ortega, 480 U.S. at 717; see also United States v. Taketa, 923 F.2d 665, 672 (9th Cir.
1991).
In Schowengerdt, a Navy civil engineer challenged the warrantless search of
his locked desk and credenza, which uncovered personal photographs and
correspondence showing his involvement in homosexual activities and resulted in his
discharge from the Naval Reserve. 944 F.2d at 485-6. The court dismissed his claim
that the search violated his Fourth Amendment rights, because he was notified by
his employer that security precautions include frequent scheduled and random
searches of private work spaces by security agents. Id. at 489. See also Chicago Fire
Fighters Union, Local 2 v. City of Chicago, 717 F. Supp. 1314 (N.D. Ill. 1989) (ruling
that firefighters have no reasonable expectation of privacy in their lockers pursuant
to the broadcasting of a General Order authorizing warrantless searches for evidence
of alcohol and drug use). But see Speights, 557 F.2d 362 (holding that a police officer
had a reasonable expectation of privacy in his locker, because he was not notified that
lockers may be subject to warrantless searches); Kirk v. City of Kokomo, 772 F. Supp.
10
2d 983 (S.D. Ind. 2011) (finding that a warrantless search of the offices and desks of
two police officers by department officials, where the officers were not notified of any
investigation and the official did not have reasonable belief that the search would
produce evidence of misconduct, violates the Fourth Amendment); Taketa, 923 F.2d
at 672-3 (holding that a DEA regulation requiring employees to maintain clean desks
does not reasonably serve as an ”after-the-fact rationalization” of the DEA’s forced
entry and warrantless search of an agent’s office).
The Appellate Court correctly reversed the district court’s denial of Officer
Campbell’s motion to suppress, because the New Jacksonville Police Department
failed to put officers on notice that their lockers may be subject to warrantless
searches. The circumstances in the present case are distinguishable from those in
Schowengerdt. The Navy engineer in Schowengerdt had worked at the top-secret
weapons facility for thirteen years, was well aware of the facility’s “extremely tight
security procedures,” and had personally observed his office being searched to
ascertain compliance with storage regulations. In contrast, Officer Campbell was a
“rookie member” of the New Jacksonville Police Department, the Department has no
written policy notifying officers that their lockers are subject to “for cause” or random
searches, and there is no history of such searches, except for an isolated incident that
occurred a year before Officer Campbell joined the department. R. at 9, 15. Unlike
the General Order in Chicago Fire Fighters Union, the New Jacksonville Police
Department never published a written policy that would create an expectation of
future locker searches. R. at 16. The Police Department’s possible possession of a
11
master key does not automatically defeat Officer Campbell’s right to be free from
unreasonable searches of his personal effects. Moreover, Officer Graham’s suspicion
that he would find Officer Campbell’s body camera in the locker, his anger towards
his colleague’s derogatory comments about ethnic minorities, and his sympathy for a
fellow black man do not amount to a reasonable belief that the search would produce
evidence of misconduct.
Petitioner’s argument that the large-scale search of all department lockers for
drugs and cash constitutes sufficient notice of all subsequent warrantless searches
fails for two reasons. First, the objective of the prior search was to discover
contraband. The present case involves searching an officer’s locker for lawful police
equipment. Second, the drug search was conducted as part of a work-related
corruption investigation of the entire Police Department. No individual officer(s) were
targeted for the inspection. The search of Officer Campbell’s locker was conducted for
an improper law enforcement purpose—namely, to aid investigators in prosecuting
Officer Campbell for the Jennings shooting. Without a valid warrant based on
probable cause, such a search constitutes a violation of an officer’s Fourth
Amendment rights. For the foregoing reasons, the body camera video is tainted by
the illegal search and seizure and is not admissible into evidence.
C. The Search was Not Conducted for a Work-Related Purpose and No Exigency
Exception to the Warrant Requirement Applies.
Although the text of the Fourth Amendment does not specify when a warrant
must be obtained, courts have adhered to the principle that warrantless searches and
12
seizures are presumptively unreasonable. Kentucky v. King, 563 U.S. 452, 459 (2011).
However, exceptions to the warrant requirement apply in certain carefully defined
classes of cases where the burden of obtaining a warrant is likely to frustrate the
objective of the governmental purpose behind the search. Camara v. Municipal Court,
387 U.S. 523, 533 (1967). Searches by government employers of their employee’s
private property for noninvestigatory, work-related purposes or investigations of
work-related misconduct are judged by a standard of reasonableness under all
circumstances. Ortega, 480 U.S. at 710. Under this standard, both the inception and
scope of the search must be reasonable. Id. A search of an employee’s personal space
by a supervisor is “justified at its inception” when there are reasonable grounds for
suspecting that the search will uncover evidence of work-related misconduct or that
the search is necessary for noninvestigatory purposes; a search is permissible in scope
when the measures adopted are reasonably related to the objective of the search and
not excessively intrusive in light of the nature of the misconduct. Id. at 726 (quoting
New Jersey v. T.L.O., 469 U.S. 325, 342 (1985)). However, if the purpose of the search
is to uncover evidence of criminal conduct for use in a later criminal prosecution, it is
unreasonable absent a warrant based on probable cause. See generally O’Connor v.
Ortega, 480 U.S. 709 (1987). Exigent circumstances, such as the imminent
destruction of evidence, may also make the needs of law enforcement so compelling
as to justify a warrantless search. King, 563 U.S. at 452.
In Ortega, hospital officials claimed that the warrantless search of a
physician’s office was conducted for the purpose of securing and inventorying state
13
property; the physician contended that the purpose was to secure evidence for use
against him in later disciplinary proceedings. 480 U.S. at 713. The Court recognized
that in order to ensure the efficient and proper operation of the workplace, public
employers must be given greater latitude to enter the private spaces of their
employees for non-investigatory or work-related reasons. Id. at 723. In Kirkpatrick v.
City of Los Angeles, 803 F.2d 485, two police officers accused of stealing money from
an apprehended suspect were forced to undergo an investigatory strip search at the
station. The court held that although the government has an interest in police
integrity, which must be considered in evaluating the reasonableness of the search,
such an invasive method of investigation requires reasonable suspicion that
incriminating evidence will be uncovered. Id. at 488. Contra Biehunik v. Felicetta,
441 F.2d 228, 230 (2d. Cir. 1971) (ruling that a public line-up investigation of sixtytwo police officers suspected to have been involved in neighborhood assaults did not
violate the Fourth Amendment, due to the substantial public interest in identifying
and disciplining officers responsible for unlawful behavior in the line of duty). Finally,
in Lowe v. City of Macon, 720 F. Supp. 994 (M.D. Ga. 1989), the court held that a
warrant was required to search a police officer’s office, desk, and gym bag for evidence
of wiretapping, because the officer was out of town at the time of the search, thereby
eliminating any exigency exception.
The Appellate Court correctly reversed the district court’s denial of Officer
Campbell’s motion to suppress, because the search and seizure was not conducted for
a legitimate work-related purpose and no exigency exception to the warrant
14
requirement applies. Ortega distinguished searches conducted for work-related
purposes from searches made for investigatory purposes—this case falls under the
latter category and requires a warrant. Although Officer Graham testified that he
was not involved in the Jennings shooting investigation, he admitted that he hoped
the body camera video would result in a more thorough investigation. R. at 7.
Additionally, the Appellate Court correctly reasoned that if Officer Campbell was
truly lying about the shooting, pursuant to Department policy, he would be subject to
a criminal investigation and prosecution. R. at 17. Even if this Court determines that
the warrantless search of Officer Campbell’s locker was work-related, it must find
that Officer Graham had reasonable grounds for suspecting that the body camera was
in the locker and that his method of accessing the locker were not excessive. His bare
suspicion and emotionally charged motive for forcibly entering Officer Campbell’s
private locker are insufficient to satisfy these requirements. More importantly, all
precedent cases authorizing work-related searches involved an employer or
supervisor. Officer Graham is not employed in the same capacity as the Police
Commissioner in Biehunik or the hospital officials in Ortega.
Petitioner may argue that the court’s reasoning in Beihunik should apply to
the present case. While the New Jacksonville Police Department and the public does
possess a substantial interest in efficient performance and police integrity, Beihunik
is more comparable to the Department’s prior random search for drugs and cash as
part of a corruption investigation of the entire police force. As decided in Lowe, where
a public employer harbors individualized suspicion towards a particular employee,
15
there is no reasonable for bypassing the Fourth Amendment’s warrant requirement.
In the present case, the investigation was already focused on Officer Campbell, who
had been placed on desk duty as is custom following an officer-involved shooting
incident. R. at 6. Under such scrutiny, there is no risk of imminent destruction of
evidence necessitating immediate police action. Officer Campbell’s locker could have
easily been secured while the Department obtained a search warrant.
II.
A POLICE OFFICER CANNOT COMMIT A HATE CRIME UNDER 18 U.S.C.
§ 249 BECAUSE THE UNDERLYING FACTORS PRESENT WHILE ON DUTY
OVERRIDE ANY RACIAL ANIMUS.
In deciding whether a certain course of conduct was undertaken “because of”
the perceived race, color, religion, or national origin of another, the circumstances
surrounding the conduct must be taken into consideration. Specifically, when dealing
with the conduct of police officers, the underlying motivations all police officers have
when acting within the course of their duty must be considered, including the need
for the safety of both the public and the officers themselves. As such, when an officer
is charged with a hate crime under 18 U.S.C. § 249, these considerations must be
taken into account and the charge cannot stand without a clear showing that racial
animus was the motivating factor of such conduct.
A. 18 U.S.C. § 249 Has Never Been Applied to Police Officers.
As the courts below noted, 18 U.S.C. § 249 has never been applied to a police
officer. R. at 17. This is due to the numerous factors that go into each decision a police
officer must make, often while under stressful circumstances. See Id. As a primary
16
public policy concern, society needs officers who are not afraid to do their jobs and
finding that 18 U.S.C. § 249 applies to police officers would severely undercut this
policy. C.f. Pearson v. Callahan, 555 U.S. 223, 231 (2009) (noting the reasoning
behind qualified immunity and “the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably”). Furthermore,
there are other remedies available through private action when citizens feel that they
have not been treated fairly by the police. See e.g., 42 U.S.C. § 1983 (allowing civil
actions for the deprivation of rights against any person).
If a civil action is inappropriate, most police forces have internal disciplinary
processes in place to deal with citizen complaints. See e.g., Rosales v. City of
Bakersfield, 2007 WL 1847628, at *32 (E.D. Cal. June 27, 2007) (noting the
availability of internal disciplinary proceedings and the ability to file a citizen
complaint against police officers); CAL. PENAL CODE § 832.5 (allowing agencies to
establish a procedure for handling citizen complaints); D.C. Code Ann. § 5-1104
(noting the establishment of a Police Complaints Board to review citizen complaint
review process). As such, applying 18 U.S.C. § 249 to a police officer is not appropriate
and should not be allowed. Thus, if Jennings believes that his civil liberties were
deprived by Officer Campbell’s conduct, the appropriate course of action would be to
file a Section 1983 claim against Officer Campbell or to submit a citizen complaint
and allow the internal disciplinary measures to handle the situation with an
appropriate response.
17
B.
If 18 U.S.C. § 249 Does Apply, the Standard Should be Higher for Police
Officers.
i. Racial Animus Must Be the Motivating Factor Because Being Racist Alone is
Insufficient.
In order for a person’s conduct to rise to the level of a hate crime under 18
U.S.C. § 249 it must be shown that they caused or attempted to cause bodily injury
to another person “because of the actual or perceived race, color, religion, or national
origin…” 18 U.S.C. § 249 (emphasis added). The District Court relies on United States
v. Maybee, 687 F.3d 1026 (8th Cir. 2012) in support of the proposition that “because
of” could be interpreted to mean that race or national origin was a “substantial
motivating factor” of the Defendant’s conduct. See R. at 12. The court’s reliance on
Maybee is misplaced. In United States v. Miller, the Sixth Circuit held that “the
phrase ‘because of’ indicates a but-for causal link between the action that comes
before it and the circumstances that comes afterwards.” Miller, 767 F.3d at 591. This
interpretation was upheld by this Court in United States v. Burrage, 134 S. Ct. 881
(2014).
In the present case, the District Court found the “but for” standard to have
been met because “but for the race of the victim, he would not have been pulled over
in the first place.” R. at 13. This reasoning confuses the issue. So long as the stop was
lawful, as it was in this case, any underlying biases by an officer in doing so are
irrelevant. Several courts have expressly held that merely being a racist is not
sufficient to prove the requirements of a hate crime. See Miller, 767 F.3d at 592
(“[p]unishment of a defendant's abstract beliefs, no matter how morally reprehensible
18
they may be, violates the First Amendment.”)(internal quotations omitted); see also
Wisconsin v. Mitchell, 508 U.S. 476, 485 (1993) (noting “[t]he defendant's motive for
committing the offense is one important factor ... [b]ut it is equally true that a
defendant's abstract beliefs, however obnoxious to most people, may not be taken into
consideration.”). While an officer’s comment may be reprehensible and per se racist,
it must still be proven that the assault was motivated by racial animus. People v.
Davis, 285 Ill.App.3d 875, 880 (Ill. App. Ct. 1996). The law requires this causal
connection between a defendant's biased attitudes and his impermissible actions to
ensure that the criminal law targets conduct, not bigoted beliefs that have little
connection to the crime. See Miller, 767 F.3d at 592.
It is irrelevant whether an officer has racist beliefs so long as he initiated the
contact with the person by lawful means. When a police officer has a valid reason to
pull someone over, it cannot be said that any racial animus was the “but for” cause of
the contact—the “but for” cause would be the traffic violation or other legitimate
reason for the stop. Furthermore, various courts have required a clear showing of
racial animus as the cause of the attack in upholding hate crime convictions—
something that is simply not present when dealing with a police officer engaged in a
lawful stop. See e.g., People v. MacKenzie, 34 Cal.App.4th 1256, 1264-66 (Cal. App.
1995) (before brandishing a .45-caliber handgun at a black family, white defendant
said: “This is my [f---ing] neighborhood, I'm sick of you mother [f---ing] bozo niggers;
“Nigger bitch, you're dead”; “You are just as [f---ed] as those f---ing nigger dope dealers
in Oakland”); People v. Superior Court (Aishman), 32 Cal.App.4th 1350 (Cal. App.
19
1993) (group of white men, one tattooed with a swastika and “Thank God I'm White,”
talk about “hitting home runs with Mexicans” before driving to a Hispanic
neighborhood and beating three Mexican men with baseball bats); Mitchell, 508 U.S.
at 480 (After seeing the movie “Mississippi Burning,” a member of a group of young
black men said, “Do you all feel hyped up to move on some white people?” and “You
all want to [f--k] somebody up? There goes a white boy; go get him,” before the group
beat a white 14-year-old causing brain damage); Richards v. State, 608 So.2d 917
(Fla. 3rd DCA 1992) (before assaulting a black man, white assailant said, “I am tired
of you [f---ing] niggers being down here. Got a job? Boat people ... You niggers down
here playing music and keeping me up); Dobbins v. State, 605 So.2d 922 (Fla. 5th
DCA 1992) (group of “skin-heads” beat Jewish youth, saying, “Die Jew boy”); Ayers v.
State, 335 Md. 602, 611 (1994) (group of white men decided to “go nigger hunting”);
People v. Prisinzano, 170 Misc.2d 525 (N.Y. Crim. Ct. 1996) (white neighbor
constructed and burned cross on the lawn of the neighboring home as black
prospective buyers visit).
Courts have also looked at this issue in terms of legislative intent. See e.g.,
State v. Hennings, 791 N.W.2d 828, 835 (Iowa 2010). The court in Hennings found:
“The legislature's use of the words ‘because of’ in section
729A.2 requires that the defendant's prejudice or bias be a
factual cause of the act… [T]o find a defendant guilty under
section 729A.2, the jury must determine beyond a
reasonable doubt the defendant would not have acted
absent the defendant's prejudice. Therefore, if a defendant
is partially motivated by bias, but would still have
committed the acts regardless of the bias, the defendant
usually cannot be guilty under section 729A.2.”
20
Id. (emphasis added).1 Because police officers, like Officer Campbell, generally have
some other motivation to resort to violence—such as an uncooperative citizen refusing
to follow lawful orders and attempting to drive away from a lawful traffic stop—to
find a police officer guilty under 28 U.S.C. § 249, the prosecution would need to prove
beyond a reasonable doubt that there was not another motivation.
The Hennings court went on to find that “[t]here are essentially three
categories of defendants to whom the state might try to apply hate-crime laws.” Id.
at 833. The first category is a person whose singular motivation for committing a
crime is something other than the protected status of the victim. Id. This category
cannot lead to a conviction because “it cannot be said that such individual acted
‘because of’ the victim’s protected status.” Id. (citing In re M.S., 10 Cal.4th 698 (Cal.
1995)). An officer’s conduct could very well fall into this category often. Officers,
unlike private citizens, have a duty to protect and serve society. See Schultz ex rel.
Schultz v. Pojoaque Tribal Police Dep't, 317 P.3d 866, 875 (N.M. Ct. App. 2014).
Therefore, even if the officer is biased against the offender in some way, when an
officer takes action it could be completely motivated by the officer’s responsibility to
protect society.
The second category—at the other end of the spectrum—is someone whose
actions are solely motivated by the victim’s protected status. This category requires
no “altercation between the victim and defendant, but instead are often a seemingly
CODE § 792A.2 mirrors 18 U.S.C. § 249 in that it uses the phrase “because of” to establish an
element of causality.
1 IOWA
21
random act of violence.” Hennings, 791 N.W.2d at 834. An officer who is acting within
the scope of his employment can never fall into this category due to the present
motivations to protect and serve, as noted above.
The third category represents the middle ground—where there are mixed
motivations of both prejudice and some other factor. Id. In order for a defendant to be
found guilty, it must be shown that the defendant would not have acted “but for” the
victim’s protected status. Id. Although an officer may be motivated by bias to stop an
individual, as Officer Campbell was in this case, he cannot be convicted if he would
have still committed the acts regardless of the bias. The facts of this case do not rise
to the level of proving beyond a reasonable doubt that Officer Campbell would not
have acted “but for” the bias. Officers always have an underlying interest in both
their own safety and the safety of society when taking action against a suspected or
actual offender. Therefore, in order for an officer’s conduct to satisfy the requirements
under 18 U.S.C. § 249, it must be so egregious or malicious as to show that the officer
was clearly motivated by his bias. As in this case, such facts will rarely exist due to
the officer’s underlying motivations.
ii. The Miller Standard Needs to be Interpreted in Light of the Circumstances
Surrounding an Officer’s Duties.
As mentioned above, there is a very small subset of situations where hate crime
charges could apply when an officer is acting within the scope of his employment.
Officers are routinely put in very stressful and life-threatening situations, they must
act quickly, and they must try to reduce the risks of injury to themselves and society
22
when engaged in an encounter with a suspected or actual criminal. Each of these
factors must be taken into consideration when deciding whether an officer has
committed a hate crime. Recently, violence against officers has been increasing at
alarming rates, prompting an even greater concern for officer safety.2 See White v.
Beasley, 453 Mich. 308, 317 (1996) (noting that there is a “dangerous work
environment inherent in police activities”); Schultz, 317 P.3d at 875 (noting “various,
and often serious, risks faced by police officers); see also Liza I. Karsai, You Can't
Give My Name: Rethinking Witness Anonymity in Light of the United States and
British Experience, 79 TENN. L. REV. 29, 63 (2011) (noting that the number of hate
crimes committed against law enforcement officers has been increasing).
Furthermore, the large volume of case law that exists in regards to whether an officer
used “reasonable force” against a citizen can shed additional light on the present
issue. If an officer used “reasonable force,” then he certainly did not commit a hate
crime because his actions would have to have some underlying justifications aside
from the perceived race of the suspect.
One factor that the court looks to in determining “reasonable force” is whether
the suspect actively resisted arrest and posed an immediate threat to officer safety.
Pacheco v. City of New York, 104 A.D.3d 548, 549-50 (N.Y. App. Div. 2013); see also
Maryland v. Wilson, 519 U.S. 408, 413 (1997) (noting a “weighty interest” in officer
2
In fact, this has become so worrisome that many states are considering making violence against
police officers a hate crime. See e.g., Yanan Wang, Should attacking police officers become a hate
crime? A Minnesota city says yes., WASHINGTON POST (Oct. 8, 2015),
https://www.washingtonpost.com/news/morning-mix/wp/2015/10/08/should-attacking-police-officersbecome-a-hate-crime-a-minnesota-city-says-yes/.
23
safety). In the present case, Jennings was actively resisting arrest with violence when
he slammed the door closed and attempted to drive away from Officer Campbell when
the officer requested that he exit the vehicle. These actions by citizens who have been
engaged by the police certainly play a role in determining what our officers are
allowed to, and supposed to do in situations. Additionally, in determining whether
the use of force was reasonable, “the trier of fact must allow for police officers'
frequent need to make ‘split-second’ judgments about how much force is necessary ‘in
circumstances that are tense, uncertain, and rapidly evolving.’” Pacheco, 104 A.D.3d
at 549-50 (citing Graham v. Connor, 490 U.S. 386, 396–397 (1989). Taking into
account all of the various uncertainties police officers face on a daily basis in dealing
with citizens, it is clear that actions of police officers can rarely be proven to be
motivated solely by prejudiced intentions.
Another important thing to consider is that officers acting within the scope of
their duties have valid reason to confront people, whereas private citizens may not.
As in this case, Jennings had been lawfully pulled over due to a traffic infraction and
became combative with Officer Campbell. It is a very reasonable possibility that this
made Officer Campbell wary and more likely to take action to protect himself and
society. Whatever underlying racism may have existed within Officer Campbell, he
acted lawfully in pulling over Jennings. Regardless of personal feelings, the law
allows officers to stop people who are or may be breaking the law and to take actions
to minimize the risk of injury involved in these situations. See Michigan v. Summers,
452 U.S. 692, 702-03 (1981) (“The risk of harm to both the police and the occupants
24
is minimized if the officers routinely exercise unquestioned command of the
situation.”). Once a person is pulled over they are legally not allowed to leave and
must obey lawful orders by police officers. See People v. Brown, 83 Ill. App. 3d 741,
743 (Ill. App. 1980) (finding sufficient evidence to convict for resisting arrest when
defendant “refused to leave his vehicle and attempted to drive away”). Therefore,
when Jennings shut the door and revved his engine to drive away he was resisting
arrest, which is a felony in many jurisdictions. See e.g., State v. Furne, 642 S.W.2d
614, 615 (Mo. 1982) (resisting arrest is a Class D felony); Watson v. State, 986 A.2d
1165 (Del. 2010) (noting “Felony Resisting Arrest Statute”). There is a large public
interest in not allowing people to drive away from a lawful traffic stop. This interest
justifies allowing officers to take action against citizens and shows additional
underlying motivations by the officers in doing so.
Finally, an officer’s actions are justified by public safety motivations and
consequently cannot constitute a hate crime when the officer has reason to believe
the suspect is dangerous. The law is clear that police may use reasonable judgment
in determining whether a person is dangerous. See e.g., Terrell v. Smith, 668 F.3d
1244 (11th Cir. 2012). For example,
“An officer may use deadly force to stop a fleeing felony
suspect when the officer: (1) ‘has probable cause to believe
that the suspect poses a threat of serious physical harm,
either to the officer or to others’ or ‘that he has committed
a crime involving the infliction or threatened infliction of
serious physical harm;’ (2) reasonably believes that the use
of deadly force was necessary to prevent escape; and (3) has
given some warning about the possible use of deadly force,
if feasible.”
25
Id. at 1251 (quoting Vaughan v. Cox, 343 F.3d 1323, 1329–30 (11th Cir. 2003)).
Officer Campbell’s conduct meets this requirement because Jennings was in the
process of fleeing a lawful stop, which can constitute a felony, and Officer Campbell
had probable cause to believe that Jennings posed a threat to Officer Campbell’s
safety. Furthermore, Officer Campbell could have reasonably believed that his use of
force was necessary to stop Jennings from escaping and, because Jennings was in the
process of trying to drive while Officer Campbell was right next to the vehicle, it
would not have been feasible for Officer Campbell to give warning.
When an officer is lawfully conducting his duties, the underlying factors that
are contained therein must be considered when determining whether any prejudice
was the “but for” cause of the officer’s actions. By looking to these numerous factors,
it is clear that in order to promote public and officer safety and remain a lawful society
an officer’s actions can rarely meet the requirements established in Miller. As such,
Officer Campbell did not commit a hate crime in violation of 18 U.S.C. § 249.
CONCLUSION
The Thirteenth Circuit was correct in finding that Officer Campbell had a
reasonable expectation of privacy in his locker and in reversing the judgment against
him. Based on the foregoing Officer Campbell respectfully requests that this
honorable Court affirm the decision of the United States Court of Appeals for the
Thirteenth Circuit granting the Motion to Suppress and vacating the conviction
under 18 U.S.C. § 249.
26