“The war is basically a question of numbers: stop enough cars and you’re bound to discover drugs,” wrote Senior Judge Kathryn H. Vratil of the Federal District Court. “And what’s the harm if a few constitutional rights are trampled along the way?”
Always nice, especially given its rarity, to see a federal judge sticking up for the rights of ordinary citizens. The Fourth Amendment to our Constitutional prohibits unreasonable searches and seizures of our persons and things.
"No" the Supreme Court has answered in Collins v. Virginia. The case arises from an intersection of two prongs to the Fourth Amendment: (1) the protection offered a home and its immediate surroundings (called "curtilage") and, (2) the automobile (better called the motor vehicle) exception to the warrant requirement.
Here's what happened. Police became suspicious that Ryan Collins had and was operating a stolen motorcycle. They set up surveillance of Collins'residence and saw parked there at the top of the driveway a motorcycle covered by a tarp. A police officer walked up the driveway, lifted up the tarp, recorded the license plate and VIN numbers, which were then used to confirm that the motorcycle was stolen. Collins was later arrested at the house, while standing in its front door, and charged with receiving stolen property.
Collins argued that the Fourth Amendment prohibited police from walking up the driveway of his residence and examining the motorcycle. The state, having nothing better to rely upon, argued that the vehicle exception to the Fourth Amendment applied and allowed the warrantless search.
The Court held that the vehicle "exception [to the Fourth Amendment] does not permit an officer without a warrant to enter a home or its curtilage in order to search the vehicle therein."
This seems an easy case and, indeed, the ruling commanded an 8-1 majority. Unsurprisingly, Justice Alito dissented and colorfully lambasted the majority:
An ordinary person of common sense would react to the Court's decision the way Mr. Bumble famously responded when told about a legal rule that did not comport with the reality of everyday life. If that is the law, he exclaimed, "the law is a ass – a idiot." C. Dickens, Oliver Twist 277 (1867).
That is harsh and misdirected criticism since all the Court was doing was applying the very core of the Fourth Amendment's purpose:
When it comes to the Fourth Amendment, the home is first among equals. Florida v. Jardines, 569 U.S. 1, 6 (2013).
To give full practical effect to that right, the court considers curtilage – "the area 'immediately surrounding and associated with the home -- to be part of the home itself for Fourth Amendment purposes. Oliver v. United States, 466 U.S. 170, 180 (1984).
The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened. California v. Ciraolo, 476 U.S. 207, 212-13 (1986).
Justice Alito will likely go his entire tenure on the Supreme Court without ever voting for a criminal defendant; for some umpires with some batters it is a strike every time. According to him, government agents should be able to walk right onto your property and rummage around in your belongings. Wake up, Sam!
Does the Fourth Amendment apply when a rental car is stopped and the driver is not an authorized driver? As a general rule, yes, the Supreme Court ruled recently in Byrd v. United States.
Terrence Byrd and his girlfriend, Latasha Reed, drove to Budget car rental center. Reed went in and rented a Ford Fusion, while Byrd stayed in his car. Reed signed the rental contract stating that she would be the only driver, and it included notice that the agreement would be violated if an unauthorized driver drove the vehicle. Nevertheless, Byrd drove off in the Fusion and Reed left driving Byrd's car, a Honda.
Byrd headed toward Pittsburgh. He provoked suspicion, according to the Court, "because he was driving with his hands at the '10 and 2' position on the steering wheel, sitting far back from the steering wheel, and driving a rental car." The opinion does not identify Byrd's race, but that explanation strongly suggests that Byrd provoked suspicion for driving while black. In any event, Byrd was stopped "for a possible traffic infraction." The police officer described him as "visibly nervous." After inspecting the rental agreement and finding that Byrd was not an authorized driver, the law enforcement officers decided that Byrd had no Fourth Amendment protections, search the car and recovered drugs.
The Court ruled in Byrd's favor holding that, "as a general rule, someone an otherwise lawful possession and control of a rental car is a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver."
The Court didn't give Byrd a complete victory, however. The case was sent back to the lower courts to address the question of whether one who intentionally uses a third-party to procure a rental car by fraudulent scheme for the purpose of committing a crime may have Fourth Amendment protections. In other words, did Byrd use Reed to get a rental car for the purpose of using the rental car to deliver drugs to Pittsburgh?
"Many good Fourth Amendment stories begin with dogs" and, so it is, a dog's sniff alerted law enforcement to the presence of methamphetamine in a package addressed to "B. PERKINS" at an address in Belvidere, Tennessee. B. PERKINS, according to information known to law enforcement and a trusted confidential informant, was a meth trafficker. A DEA officer obtained an anticipatory warrant to search Perkins' residence.
An anticipatory search warrant is one for which probable cause is contingent upon an anticipated future event; in other words, if this happens, it will establish probable cause for the warrant that may then be executed. The contingent event, as set out in the warrant, was for a DEA officer, a Brewer, to "hand deliver the above mentioned package to PERKINS." So, upon hand-delivery of the package to PERKINS the contingency would be fulfilled, and the warrant effective.
But things got fouled up, perhaps because agent Brewer didn't read the warrant the court suggests, and the package was not delivered to PERKINS but to an unknown woman (later determined to be Perkins' fiancee) who answered the door. Nevertheless, law enforcement then executed the search warrant and recovered at least the meth in the package.
The government's argument was that hand-delivery to the unknown woman at the residence was close enough. Not good enough the Court ruled:
In this case, requiring delivery to Perkins is the only common sense reading of the warrant's triggering event. Hand-deliver "to Perkins" means hand-deliver "to Perkins." This reading is hardly hypertechnical.
By contrast, the government's interpretation lacks common sense. In its view, there is no need to read the triggering event to require hand-delivery "to Perkins." Instead, we should just read it to say "to anybody inside the residence with apparent authority to accept delivery." But the replace-some-words canon of construction has never caught on in the courts. And there is no reason it should here. Plus, it is not as if requiring delivery "to Perkins" was unintended.
The Supreme Court ruled in Rehberg v. Paulk, 566 U.S. 356 (2012), there is absolute immunity for any grand jury witness, law enforcement or otherwise, from any civil action derived from their grand jury testimony, even if the grand jury testimony was knowingly or recklessly false or even where law enforcement officers have "conspired to present false testimony." This is, as some courts have observed, a harsh result and the Sixth Circuit questioned in Sanders v. Jones, 845 F3d 721 (6th Cir. 2017), "whether malicious prosecution remains a viable claim" after Rehberg in light of the difficulty it creates of overcoming the presumption of probable cause created by an indictment. The Sixth Circuit Squarely answered the question recently in King v. Harwood.
The Sixth Circuit concluded that malicious prosecution remains a viable claim even where there has been a grand jury indictment but only in the most limited of circumstances:
We hold that where (1) a law-enforcement officer, in the course of setting a prosecution in motion, either knowingly or recklessly makes false statements (such as in affidavits or investigative reports) or falsifies or fabricates evidence; (2) the false statements and evidence, together with any concomitant misleading omissions, are material to the ultimate prosecution of the plaintiff; and (3) the false statements, evidence, and omissions do not consist solely of grand jury testimony or preparation for that testimony (where preparation has a meaning broad enough to encompass conspiring to commit perjury before the grand jury), the presumption that the grand jury indictment is evidence of probable cause is rebuttable and not conclusive.
The case of King v. Harwood, a malicious prosecution case decided recently by the Sixth Circuit, begins with a body found floating in the Ohio River. An autopsy revealed the cause of death as two non-exiting .22 caliber gunshots to the head; the body's legs were bound by a guitar-amplifier cord.
The murder investigation turned attention to Susan King, because she had had an "on/off again relationship" with the deceased, Kyle Breeden, and because, during the 10 day time when Breeden was missing, King had shared with others her premonitions of "Breeden being found in water." Two attempts to obtain a search warrant for King's home were unsuccessful; she also denied consent during an interview of "several hours" conducted by investigators. Nevertheless, a Kentucky state police sergeant was escorted into the residence by King's boyfriend, and he discussed with her bullet holes in the house's kitchen floor stemming she said from an incident some years before when she had been compelled to resist aggressively a paramour's advances. The sergeant's investigative notes concluded that he "did not believe that King was responsible for Breeden's death."
The case then went cold for nearly seven years, from November 1999 to May 2006.
In May 2006, KSP detective Todd Harwood took up the investigation. Harwood interviewed King on May 31 and June 12, 2006, although neither interview was documented.
On June 12, 2006, Harwood applied for a search warrant, although, as the Sixth Circuit pointed out, "he had only the same information that [KSP investigators] had when they had previously sought and failed to obtain a search warrant." Nevertheless, Harwood was successful and the warrant was issued.
Despite the warrant's issuance and without ruling that it should not have been issued, the Sixth Circuit takes pains to criticize omissions in Harwood's affidavit:
The affidavit omits the fact that the bullet wounds in Breeden's head were non-exiting(thus leaving open the possibility that the bullet holes in King's floor were made by the bullets that killed Breeden, which was not possible). The affidavit also omits the fact that King had one leg (and, though she now has a prosthetic leg, she did not at the time) and weighed 100 pounds, while Breeden weighed 187 pounds, which would make it less probable than otherwise that King killed Breeden in her kitchen, tied up his body, dragged him to her car, drove 40 miles north, and dumped his body into the Kentucky River.
The search of King's home recovered a .22 caliber bullet from her kitchen floor. However,, a forensic examination determined that the bullet from King's floor did not match the bullets that killed Breeden.. Subsequently, a second search warrant was obtained based on Harwood's same affidavit and the search recovered 130 bullets from a tree and King's backyard. None of these matched the bullets found in Breeden's skull.
Nevertheless, Harwood apparently identified King as Breeden's murderer, testified before the grand jury that indicted King for murder. Subsequently, King was also indicted for tampering with physical evidence, a charge arising from the allegation that she cleaned up the murder scene, which was her kitchen. The Sixth Circuit noted that "a KSP lab report indicates that no cleaning solvents were identified on King's floor."
King entered an Alford plea pursuant to a plea agreement that included a 10 year sentence for manslaughter and a concurrent five-year sentence for tampering. She was sentenced to 10 years of imprisonment on October 23, 2008, about two weeks short of 10 years from the day Breeden's body was found in the river. The Sixth Circuit noted that "Harwood received a KSP 'Commissioner's Commendation for his outstanding achievement in solving Breeden's murder."
In May 2012, "a serial murderer named Richard Jarrell confessed to a Louisville Metro Police (LMPD) detective that he had in fact killed Breeden." Jarrell was seeking leniency for a brother facing federal drug charges and apparently was able to relate specific details about the murder that had not been publicly disclosed. A second interview with Jarrell was recorded. Harwood himself later interviewed Jarrell, and, according to King, "intimidated Jarrell into recanting his prior confession." The Sixth Circuit noted that "Harwood's tape recorder went missing."
The LMPD detective "apparently forwarded a copy of Jarrell's confession to the Kentucky Innocence Project (which had been investigating King's case since 2009)." King filed a motion for a new trial based on Jarrell's confession, which the Spencer Circuit Court denied based on her guilty plea. She appealed and on July 18, 2014, the Kentucky Court of Appeals ruled in her favor based on King's evidence of "actual innocence," vacated her Alford plea and remanded the case for trial on the indicted offenses. The charges against King were dismissed by the Spencer Circuit Court on October 9, 2014, and the criminal prosecution terminated.
On October 1, 2015, less than a year later, King filed suit pleading claims of malicious prosecution pursuant to 42 U.S.C. 1983 and various tort claims. On June 1, 2016, prior to the taking of any discovery, U.S. District Judge Gregory Stivers granted summary judgment to all of the defendants on all of King's claims. That ruling was reversed by the Sixth Circuit. One aspect of the Sixth Circuit's ruling has been discussed in a previous post, An Alford Plea Does Not Bar a Later Malicious Prosecution Claim, Sixth Circuit Rules, and others will be discussed in subsequent posts.
A malicious prosecution claim depends on an absence of probable cause for the charge. One would think that an Alford plea, a guilty plea that does not admit guilt but admits that sufficient evidence exists to support a conviction, would bar a later malicious prosecution claim, since the plea acknowledges not only evidence establishing probable cause but also proof beyond a reasonable doubt. Not necessarily so the Sixth Circuit has ruled recently and surprisingly in King v. Harwood, a most interesting decision that threads the needle among the various immunities and other barriers that the courts have created through the years to prevent citizens harmed by unfounded prosecutions to get relief.
The Sixth Circuit explained:
But King's Alford plea does not help Defendants on summary judgment for two reasons. First, the district court's position requires inferring from King's Alford plea that King herself must have believed, at the time of entering the plea, that there was probable cause to prosecute her. But what King believed is either irrelevant to Harwood's actions, or is only evidentiary as to the factual issue of the existence of probable cause and is, therefore, inappropriate for resolution at summary judgment. Second, even if King did impliedly concede probable cause by signing the Alford plea, that does not retroactively prove that there had been probable cause to support King's prosecution all along.
The first point makes sense: it doesn't matter what King believed or didn't believe, it matters what she did. The second point, even for this plaintiff's lawyer, is hard to understand. The Alford plea is evidentiary and would seem to resolve not only the question of probable cause but also acknowledges the existence of evidence constituting proof beyond a reasonable doubt for the charge. Put another way, the Alford plea would seem to end any factual dispute about probable cause.
King v. Harwoodis a most interesting and notable case. The Alford plea was later vacated when a third party confessed to the murder with which King was charged. We will discuss this most unusual case in further posts.
Generally, under American law an unreasonable act equates with negligence giving rise to liability for the wrongful conduct. The Fourth Amendment, of course, prohibits unreasonable searches and seizures, at least until the Supreme Court's distressing decision last week in Utah v. Strieff.
The initial sign of a bad moon rising was the identity of the majority opinion's author, Justice Clarence Thomas.
The case started with an anonymous tip to police about drug trafficking activity going on at a particular residence. Police conducted some surveillance but apparently or presumably not enough to establish probable cause, since no search warrant was sought, although one was not needed and will not in the future be sought given the Court's decision. Police observed Strieff leave the location and stopped him in the parking lot of a nearby convenience store, conducting what is known as an "investigatory stop,", which means detaining an individual to find out who he or she is and what he or she claims to be up to. It was conceded that there were no lawful grounds for this investigatory stop, a stop that requires only a reasonable suspicion that criminal activity may be afoot. So it would seem, as far as the Fourth Amendment is concerned, that there no reasonable basis to make this investigatory stop.
Nevertheless, the stop was made, a warrant check run, which revealed some type of outstanding traffic tickets and warrant, the defendant was arrested and the search incident to his arrest revealed a small quantity of drugs.
The Court reversed the Utah Supreme Court and held that the unconstitutionality of the initial stop could be disregarded because of the fact of the outstanding warrant, which, in turn, allowed an arrest and, in turn, allowed a search incident to arrest.
Part of the court's rationale was that "the stop was an isolated instance of negligence [.]" Nearly all stops of all individuals are isolated instances. This is how the law disappears, by being made meaningless.