The Current Supreme Court Term and Police Practices
by Jack E. Call
Professor of Criminal Justice
Radford University
E-mail: jcall@radford.edu
The United States Supreme Court has one term of court a year. The term begins on the first Monday in October (October 7, 2013, for the current term) and typically ends the last week in June, so the present term is nearing completion.
Of the 80+ cases presently on the Court’s docket, only five relate to police practices. The first of these cases, Fernandez v. California, was decided by the Court on February 27. The issue in the case concerned the validity of the consent given the police to search an apartment by a person living in the apartment. The decision of the Court and its significance are discussed in a separate article in this issue of the Bulletin.
The second police practices case this term is Navarette v. California, a case dealing with application of the reasonable suspicion standard. That case involved the reliability of an anonymous tip about a reckless driver and whether the tip provided reasonable suspicion to think the reckless driver was also intoxicated. The case was decided by the Court on April 22 and is also discussed in a separate article in this issue of the Bulletin.
The third Supreme Court case dealing with police practices, Plumhoff v. Rickard, was argued on March 4. The case deals with whether West Memphis, Arkansas, police officers should have been granted qualified immunity for their use of deadly force in a highly unusual situation.
In the summer of 2004, West Memphis Officer Forthman stopped a car driven by Donald Rickman because only one of the car’s headlights was operating. Kelly Allen was a passenger in the car. Officer Forthman noticed an indentation in the windshield of Rickard’s car. When the responses Forthman received to his questions about the indentation were considered less than satisfactory by Forthman, he ordered Rickard out of the car. Instead of complying with Forthman’s instruction, Rickard drove off. A high speed chase ensued that ended up across the Mississippi River in Memphis, Tennessee, with a total of five police cars in pursuit.
Eventually, Rickard ended up spinning his car in a parking lot. The police cars penned him against a building, but he was still able to back his car through the police blockade. One officer fired three shots at Rickard at about this point in time. After Rickard backed through the blockade, reversed gears, and moved forward, one officer fired ten shots at Rickard’s car and another officer fired two shots. Of the fifteen shots fired at the car, twelve hit Rickard and one hit Allen. Shortly after the gunfire stopped, Rickard’s car crashed into a building. Rickard and Allen were both killed.[1]
The estates of Rickard and Allen sued the police under 42 USC §1983, alleging a violation of Allen’s Fourth Amendment rights against excessive use of force by the police. Prior to trial, the police moved for summary judgment on the basis that they were entitled to qualified immunity. The judge in this case should have granted the motion only if the judge believed that even if Allen’s estate (the plaintiff) proved what it alleged, it would be insufficient to establish that the police violated clearly established law. In other words, the judge would be determining whether a trial was necessary. If the plaintiff would lose even if it convinced a jury that its version of the facts was true, then there would be no need for a trial.
The trial judge ruled against the police, concluding that if the jury believed the plaintiff’s version of the facts it could reasonably conclude that the officers violated the Fourth Amendment. A 3-judge panel of the U.S. Court of Appeals for the Sixth Circuit unanimously upheld the trial judge’s ruling. In doing so, the court relied heavily on the Supreme Court’s decision in Scott v. Harris.[2]
In the Scott case, Deputy Sheriff Scott had pursued Harris at a high rate of speed and rammed Harris’ car in an effort to stop it. As a result, Harris wrecked his car and suffered injuries that made him a quadriplegic. The Supreme Court ruled that Scott’s ramming of Harris’ vehicle was reasonable under the circumstances because Harris’ actions had created a substantial and immediate risk of serious physical injury to others.
The Sixth Circuit panel of judges did not believe that the Scott case demanded a ruling in favor of the police, because the court perceived important differences between the two cases. First, the court noted that in Scott, the fleeing motorist was still fleeing at very high speeds when the police applied substantial force to him. By contrast, the appellate court in Rickard concluded that Rickard’s vehicle “was essentially stopped and surrounded by police officers and police cars although some effort to elude capture was still being made.”
The court also thought it was significant that the police in Rickard used gunfire to try to bring the incident to a conclusion, although the court is not clear as to why this difference in the two cases is important. The implication seems to be that firing fifteen shots at Rickard constituted significantly more force than ramming Harris’ car.
The appellate court also thought that the facts were more complex in Rickard than they were in Scott. Although there was videotape of both incidents, the court in Rickard did not view the videos as providing as much clarification of what happened as did the videos in Scott. Whether the Supreme Court will find these differences between Rickard and Scott significant remains to be seen.
The last two cases, Riley v. California and U.S. v. Wurie, involve police searches of cell phones incident to a valid arrest of a suspect and were argued on April 29. In Riley, the police impounded Riley’s car and conducted an inventory of the car. This inventory search resulted in the discovery of two firearms under the car’s hood. When the police arrested Riley for carrying concealed and loaded weapons, they seized the smartphone they found on Riley’s person. At this time, the arresting officers scrolled through the text messages on the smartphone and saw some combinations of words and letters that suggested that Riley might be a member of a gang. Two hours later, the police looked through photographs, videos, and phone numbers contained on Riley’s smartphone. A couple of photographs showed Riley making hand signals typically associated with gang activity and also showed in the background of one photo a car that the police suspected was involved in an earlier shooting. At trial, Riley sought suppression of these photos as products of an unlawful, warrantless search of his phone.
In Wurie, the police arrested Wurie after observing what they concluded was a drug transaction. Incident to Wurie’s arrest, the officers seized his cell phone. Shortly after arriving with Wurie at the police station, Wurie’s phone rang. The display on his phone said “our house.” The police then used the phone’s call log to find the phone number associated with “our house” and used an online directory to find a street address associated with that phone number. This led eventually to procurement of a search warrant for the home at that address, which resulted in the discovery of contraband linked to Wurie.
In both cases, the defendants argue that a search of cell phones found on an arrestee exceeds the proper limits of a search incident to arrest. Of course, present Supreme Court case law permits a warrantless search of lawfully arrested persons and the area within their immediate control.[3] The Court has indicated that such searches are justified by a need to protect the arresting officer and to prevent the destruction of evidence by the person arrested. The defendants in these two cases argue that permitting the warrantless search of the contents of an arrestee’s cell phone would needlessly reveal to the police a vast amount of highly private information of the sort that is commonly stored on individual smartphones. The U.S. Court of Appeals for the First Circuit ruled in favor of the defendant in the Wurie case; the California Court of Appeal for the Fourth Appellate District ruled in favor of the government in the Riley case.
The government took somewhat different approaches to their arguments that the cell phone searches in these cases should be permitted. In Riley, the state of California takes a rather straightforward, if somewhat simplistic, approach to the issue. It argues that the contents of a cell phone should be treated no differently than the contents of any other article or object found on or within arm’s length of a person arrested. It argues that personal communications, contact information, video clips, and photographs stored on a cell phone are “not different in kind from wallets, address books, personal papers, or other items that have long been subject to examination by police if carried on the person of an individual who is validly arrested.”[4]
In Wurie, the federal government takes a much more nuanced approach. It advances a three-tiered argument that the police should be able to search cell phones found on a person arrested or within that person’s immediate control.[5] (That case only involves a search of the call log of the phone, but much of the government’s arguments would also extend to searches of other cell phone contents as well).
Its first argument is that the cell phone often will contain information relevant to the case giving rise to the arrest, and that evidence can be easily removed, locked behind a password, or concealed by the person arrested or by others at locations removed from the scene of the arrest. In addition, the search can quickly alert the police if it has been used to call or text confederates of the arrestee or others who may be coming to the scene of the arrest and pose a threat to the safety of the officers.
The second government argument in Wurie is that if the police are not permitted to search the call log in every case, they should be able to search the call log “when it is reasonable to believe that evidence of the offense of arrest might be found” on the phone. This argument relies heavily on the Supreme Court’s decision in Arizona v. Gant.[6] In Gant, the Court limited the authority of the police to search a vehicle incident to an arrest of someone at the vehicle to situations where either the person arrested is not secured and is still within reaching distance of the vehicle or “when it is reasonable to believe that evidence of the offense of arrest might be found” in the vehicle.
The third government position in Wurie is that, even if the police are not permitted to search the contents of a cell phone incident to every arrest, the Court could limit the cell phone search to “what is reasonably necessary to serve legitimate law-enforcement interests.” Under this approach, “a cell-phone search incident to arrest would be lawful if the officer has an objectively reasonable basis to believe that each area of the phone she searches contains information related to a legitimate law-enforcement interest, such as finding evidence of the crime of arrest, identifying the suspect, or protecting officers’ safety.”
It is always dangerous to attempt to draw very specific conclusions from questions asked by Justices during oral argument. However, the initial reactions (from a journalist who covers the Court for Scotusblog[7] and a law professor who closely follows Supreme Court cases on the 4th Amendment[8]) suggest that the Court is likely to take a middle-of-the-road approach. This approach would reject the notion that cell phones are no different from other things found on a person arrested (essentially rejecting the California argument), while also rejecting what is being called a “seize-and-hold” rule – a rule that would permit no warrantless search whatsoever.
Another curious aspect of this case is the Court’s decision to hear this case so late in its term. The commentators referred to in the previous paragraph recognize that a middle-of-the-road approach is going to be difficult to determine and then to explain carefully and clearly, especially if the Court wants to have a majority that agrees on the approach to be taken. Given the ground-breaking nature of the rule to be established in these cases, the need for a majority agreement seems particularly desirable. However, as indicated earlier, the Court typically ends its term the last week in June. This gives the Court very little time to work out any disagreements that may exist among the Justices constituting a majority, especially when one considers that the Court is also attempting to reach resolution on the backlog of undecided cases that invariably accumulate at the end of a term.
In a future issue of the Bulletin, there will be a discussion of the Supreme Court’s decisions in these cases. In the meantime, anyone interested in listening to the oral arguments in these cases can go to www.oyez.org and listen to them (although it sometimes takes several days after the oral argument for the audio recording to appear on that website). You can also find interesting, short commentaries at www.scotusblog.com.
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1] The facts are quite complicated and are not described in as much detail here as they are in the lower court’s opinion. Readers are encouraged to read a more thorough description of the facts at http://www.ca6.uscourts.gov/opinions.pdf/12a1178n-06.pdf.
[3] Chimel v. California, 395 U.S. 752 (1969).
[4] http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v3/13-132_resp_amcu.authcheckdam.pdf.
[5] http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v3/13-212_pet.authcheckdam.pdf.
[7] http://www.scotusblog.com/2014/04/argument-analysis-limiting-a-search-sure-but-how/.
[8] http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/04/29/initial-impressions-from-the-oral-argument-in-the-supreme-court-cell-phone-search-cases/.
Disclaimer: The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.