SUPREME COURT WATCH 

2005 Term—Police Case Roundup

By Lani L. Williams

Lani L. Williams volunteers with the Local Government Lawyer's Roundtable.

The Court decided several cases in its 2005 Term affecting police officers. Each of the cases described below deals with aspects of the Fourth Amendment: the sufficiency of “anticipatory” search warrants, “knock and announce” violations, consent searches, and warrantless entries.

Anticipatory Search Warrants

In United States v. Grubbs, 126 S. Ct. 1494 (2006), the Court held that anticipatory search warrants 1 are not unconstitutional and that the triggering condition of an anticipatory search warrant need not be stated on the face of the warrant. To comply with the Fourth Amendment’s probable cause requirement, a conditioned anticipatory warrant must satisfy two prerequisites: (1) there must be a fair probability that specific contraband will be found if the triggering event occurs, and (2) there must be probable cause to believe that the triggering condition will occur. A supporting affidavit must provide a magistrate with sufficient information to evaluate both issues.

An anticipatory warrant need not set forth the triggering conditions of the warrant because the text of the Fourth Amendment requires only that the place to be searched and the things to be seized be set forth with particularity. The Court found that the policy arguments to the contrary were unavailing. Grubbs argued that setting forth the triggering condition assured the individual whose property is being searched or seized of the officer’s lawful authority and the limits on his or her power to search. Justice Scalia noted this argument pre-supposed that an officer must present the warrant to the property owner at the outset of the search. However, neither the Fourth Amendment nor the Federal Rules of Criminal Procedure require this. The Court stated the protection offered by the Fourth Amendment was the interposing of a judicial officer with impartial judgment between the police and citizens and the right of citizens, ex post, to seek the suppression of evidence improperly obtained, not the right to monitor the search itself.

Justice Souter’s concurring opinion cautioned the government and police officers against relying on warrants that do not specify the triggering conditions on their face. The concurrence made specific reference to Groh v. Ramirez, 540 U.S. 551 (2004), noting a warrant that fails to delineate what a magistrate authorized cannot inform officers of the limits of their authority, which could have significant consequences when the officers who execute a warrant are not the ones who applied for it. Without the triggering condition appearing on the face of the warrant, the executing officer might not be aware that a triggering condition must be met before the warrant can be executed. The concurrence also stated the right of a property owner to demand to see a copy of the search warrant before the search begins has not yet been determined. This is certainly an invitation for a petition for certiorari.

Execution of Warrants

In Hudson v. Michigan, 126 S. Ct. 2159 (2006), the Court held that a violation of the “knock-and-announce” rule does not require the suppression of all evidence found in the search. The case dealt only with the appropriate remedy for a violation of knock-and-announce. It did not deal with how long officers must wait after knocking and announcing before entering when they are dealing with a situation involving possible danger to themselves or possible destruction of evidence.

Under common law and the Fourth Amendment, law enforcement officers must announce their presence and provide residents an opportunity to open the door. See Wilson v. Arkansas, 514 U.S. 927, 931–32 (1995). However, this principle is not easy to apply and many situations exist in which it is not necessary to knock and announce. For instance, knock-and-announce is not necessary when “circumstances presen[t] a threat of physical violence,” or if there is “reason to believe that evidence would likely be destroyed if advance notice were given,” Wilson, 514 U.S. at 936, or if knocking and announcing would be “futile,” Richards v. Wisconsin, 520 U.S. 385, 394 (1997). When waiting is required, the Court has struggled with the appropriate amount of time, acknowledging that the “reasonable wait time” standard is necessarily vague. SeeUnited States v. Banks, 540 U.S. 31, 41 (2003) (Banks held the proper measure of wait time was how long it would take to dispose of the suspected drugs (fifteen-to-twenty seconds in that case)—the time would necessarily be extended when the suspected contraband was not easily concealed). The Court did not have to address this issue, as a violation of knock-and-announce was conceded.

Because the police had a valid warrant and would surely have discovered the drugs and weapons if they had waited the appropriate amount of time (whatever that amount of time is), the exclusion of the evidence was an inappropriate remedy for the violation. Even if the police would not have discovered the sought after evidence absent the knock-and-announce violation, the exclusionary rule is not the appropriate remedy for knock-and-announce violations. This is because the knock-and-announce rule is designed to protect “life and limb,” avoid destruction of property, and allow persons a “moment to collect” themselves before answering the door. The majority asserted that a civil suit under § 1983 is the appropriate remedy for such violations.

Consent Searches

In Georgia v. Randolph, 126 S. Ct. 1515 (2006), the Court held a search conducted with the consent of one residential occupant over the objection of the other occupant was not reasonable under the Fourth Amendment. This opinion changes the law for a majority of jurisdictions that have considered the issue. It applies to any co-occupant situation. The bright line announced by the Court is that “if a potential defendant with a self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search.” However, if the potential objector is nearby, but “not invited to take part in the threshold colloquy,” he “loses out.” Chief Justice Roberts wrote his first dissent in this 5–3 case, terming the rule announced by the majority a “complete lack of practical guidance for the police in the field.”

Justice Souter stated that while police officers may not be able enter and search a home themselves because of conflicting matters of consent, nothing prevents the consenting occupant from, of his own initiative, delivering evidence to the police. And nothing prevents the officers from seeking a warrant to search the home. Even when a conflict exists on the issue of consent, other circumstances may exist under which officers can gain entry to the premises without a warrant. For instance, if the police are not able to prevent the objecting occupant from destroying evidence, an exigency may exist that would allow the officers to search the premises without a warrant. Further, circumstances involving “hot pursuit,” officer safety, recent or imminent injury to others, and possible flight of the suspect may also vitiate the need for a warrant when one occupant has denied consent to enter the premises. Officers would also be allowed to seize evidence in plain view if they were on the premises to assist a domestic violence victim with the retrieval of personal possessions.

The Chief Justice points out that there is some confusion regarding the scope of the new rule, as the majority opinion states that it applies merely to evidentiary issues, yet it is written predominately in terms of being able to enter the premises. He further criticized the majority because the opinion generally prevents officers from entering and searching premises when one occupant consents, but another objects, yet it allows officers to enter when they have a “good reason,” such as the exigent circumstances listed above. Chief Justice Roberts questions the ability of officers and lower courts to determine what a sufficiently “good reason” under the Fourth Amendment is for entering premises in light of conflicting answers on the question of consent. A far easier solution is to find that consent by one party overrides nonconsent by another party.

Warrantless Entries

In Brigham City, Utah v. Stuart, 126 S. Ct. 1943 (2006), the Court held police officers may enter a home without a warrant when they have an objectively reasonable belief that an occupant is seriously injured or imminently threatened with serious injury.

Although warrants are generally required to search a person’s home, exigent circumstances may make the needs of law enforcement so compelling that a warrantless entry is objectively reasonable. Mincey v. Arizona, 437 U.S. 385, 393–94 (1978). An example of a compelling exigency is the need to assist someone who is seriously injured or threatened with serious injury. Mincey, 437 U.S. at 392.

Regardless of these principles, the respondents argued the police violated the Fourth Amendment when they entered the home in this case because they did so not to prevent serious injury, but to make arrests and seize evidence. In addition, the respondents argued, their actions were not serious enough to qualify as a level of violence justifying the police entry. The Court rejected both arguments, finding that the standard for judging reasonableness is an objective one, not a subjective one, and that ongoing violence sufficed as a justification to enter the home. “The role of a peace officer includes preventing iolence and restoring order, not simply rendering first aid to casualties: an officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided.”

It should be noted that this case was decided solely on the basis of the federal constitution. The Utah Supreme Court’s opinion makes it clear that court wants to decide the issue under the state constitution because it may grant greater rights than the federal constitution. 122 P.3d 506, 508 (Utah 2005). States whose constitutions provide greater rights than the federal constitution, or whose courts have not yet decided the extent of the protections afforded by their constitutions, should not look to this case as carte blanche for police officers to enter homes without a warrant under these circumstances. Justice Stevens would not have granted certiorari in this case because of the likelihood of the Utah constitution offering greater protections. He termed this case an “odd flyspeck of a case.”

With respect to whether police officer actions should be judged objectively or subjectively, the Court’s cases have repeatedly held the circumstances surrounding a case should be judged objectively, regardless of an officer’s state of mind. SeeScott v. United States, 436 U.S. 128, 138 (1978); Bond v. United States, 529 U.S. 334, 338, n.2 (2000); Whren v. United States, 517 U.S. 806, 813 (1996); Graham v. Connor, 490 U.S. 386, 397 (1989). One exception to this is “programmatic” searches conducted without individualized suspicion—drunk driving or drug trafficking checkpoints. See Indianapolis v. Edmond, 531 U.S. 32 (2000); Florida v. Wells, 495 U.S. 1, 4 (1990). There, the courts are interested in discerning the purpose behind the program and ensuring it is distinguishable from a general interest in crime control. The officer’s subjective intent is still not at issue, though. Note, in Edmonds, the Court stated it had never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Every checkpoint program it has approved was designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety.

Police Cases on the 2006 Docket as of August 2006

Wallace v. Kato, No. 05–1240. Question presented: When does a claim for damages arising out of a false arrest or other search or seizure forbidden by the Fourth Amendment accrue when the fruits of the search were introduced in a person’s criminal trial and he was convicted?

Endnotes

1. An anticipatory search warrant is a warrant based upon an affidavit showing probable cause that, at some future time (but not presently), certain evidence of a crime will be located at a specified place. Most anticipatory warrants can be executed not merely by the passage of time, but rather by the occurrence of a specific event or triggering condition.