A summary of 2012 and early 2013.
This article discusses the U.S. Supreme Court opinions of significance to law enforcement officers decided in 2012 and the first two months of 2013. There will be more opinions released by June, 2013 and they will be discussed in future articles.
Incarcerated Prisoners and Miranda Custody
Howes v. Fields, 132 S.Ct. 1181 (2012)
This case deals with law enforcement interrogations of incarcerated individuals serving a jail or prison term inside a correctional facility. Here, two law enforcement officers questioned Fields, an inmate serving a jail sentence, about a criminal matter unrelated and occurring prior to his incarceration. Fields was involuntarily removed from his cell and escorted to an isolated interrogation room. He was told he could return to his cell at any time and was not given Miranda warnings. After two hours of questioning, he confessed.
The Court made three important rulings concerning interrogations of persons serving sentences: 1) imprisonment, in and of itself, does not constitute custody for purposes of Miranda; 2) isolating a prisoner for attempted questioning, in and of itself, does not constitute custody for purposes of Miranda; and 3) accusatory questioning about one’s criminal involvement does not constitute custody for purposes of Miranda.
The key fact in this case was that Fields was told he could return to his cell at any time and yet he chose to remain and participate in questioning. This fact rendered his interrogation non-custodial despite the fact it was occurring in a confinement facility.
Out-of-Court Eyewitness Identification Procedures
Perry v. New Hampshire, 132 S.Ct. 716 (2012)
This case asks and answers the question, “Is a questionable out-of-court eyewitness identification procedure subject to suppression as a violation of due process if the procedure is not born out of improper law enforcement action?” The answer is “No.”
Here, Perry was detained by officers in an apartment complex parking lot after a resident of the complex witnessed someone breaking into cars. One of the officers went to the witness’ apartment to speak with her and asked her to describe the suspect. She responded by pointing out her window and saying the man she had seen was now standing next to a police officer. The witness spontaneously identified Perry; the officers did nothing here to arrange for the witness to identify the suspect. Perry was arrested following the identification.
An unduly suggestive eyewitness identification procedure, if arranged by law enforcement, may cause a resulting identification to be suppressed as courtroom evidence because its use would be unfair and a violation of the defendant’s due process rights.
The Court held this identification, although possibly unreliable due to its circumstances, is not subject to suppression because the police did nothing to arrange the identification. Only eyewitness identifications that result from faulty procedures organized by law enforcement are subject to suppression. It is up to the jury to determine how much weight, if any, to give to eyewitness identifications not arranged by law enforcement.
What is a “Search”?
United States v. Jones, 132 S.Ct. 935 (2012)
Law enforcement officers attached a GPS tracking device to a vehicle known to be operated by Jones, whom officers suspected of drug trafficking. A search warrant had been obtained authorizing the attachment of the device, but the parameters of the search warrant were not followed. The device was installed at a date later than prescribed by the warrant and in a different city than authorized.
So, in effect, the GPS device was installed without a warrant. Over the course of several weeks, officers tracked Jones’ movements and ultimately arrested him. At his trial, Jones moved to suppress any evidence obtained as a result of the GPS monitoring due to the unreasonableness of the warrantless attachment and use of the device.
The Court declined to rule on the reasonableness of the law enforcement action. Instead, it clarified what type of law enforcement action constitutes a “search” within the meaning of the Fourth Amendment and sent the case back to the lower court for further proceedings.
Prior to 1967, a search by a law enforcement officer was deemed to have occurred if the officer physically intruded upon a constitutionally protected area—namely “persons, houses, papers and effects.” In 1967, there came the “reasonable expectation of privacy” test arising from United States v. Katz. There, the Court broadened the definition of a search to include non-physical intrusions by law enforcement, such as secretly listening to a telephone conversation.
In Jones, the Court made it clear that the Katz reasonable expectation of privacy test did not replace the physical intrusion test—Katz merely added another layer of inquiry. Therefore, in accordance with Jones, a “search” is defined as a physical intrusion by an officer upon a constitutionally protected area or any intrusion upon a reasonable expectation of privacy.
Reliability of Drug Detection Canine
Florida v. Harris, February 19, 2013
This case involves whether a particular drug detection canine’s alert to the presence of drugs established probable cause. The Florida Supreme Court had established an elaborate set of training and field performance criteria that need to be proven by the State in order to establish probable cause via a dog alert.
In this case, the United States Supreme Court rejected such a technical approach. Probable cause is established when, according to the Court, “the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing.”
In particular, the Florida Supreme Court had expressed in its opinion that a dog’s negative field performance—i.e., the number of false positives—should weigh heavily in the probable cause determination regardless of the quality of the dog’s performance during training exercises. Therefore, according to that court, if an officer failed to maintain such field records the dog could never be used to establish probable cause.
The United States Supreme Court was critical of the emphasis that the Florida court put on the dog’s field performance because of the impracticality of accurately tracking it. It found that a dog’s performance in a monitored and controlled training environment is a more accurate measure of reliability and suffices to make the canine probable cause worthy.
Detention of Persons During Execution of a Search Warrant
Bailey v. United States, Feb. 19, 2013
In this case, as officers were preparing to execute a search warrant at an apartment, they saw Bailey and another man leave the apartment, get into a vehicle, and drive away. Officers stopped the vehicle approximately one mile from the search warrant scene, frisked the occupants, recovered incriminating evidence, and returned them to the scene of the search warrant. The officers used the rule established in Michigan v. Summers, which permitted officers executing a search to detain individuals on the premises, as their basis for the detention of Bailey and his companion.
The Court held the rule established in Summers pertains only to those individuals who are present in the immediate vicinity of the area to be searched and not to these subjects who were allowed to leave that area. There are three legitimate law enforcement interests that justify the existence of the Summers rule: 1) officer safety, 2) facilitation of the completion of the search, and, 3) preventing the flight of individuals present.
None of these interests, according to the Court, apply with the same force when seeking to justify the detention of individuals outside the immediate vicinity of the premises to be searched. In this case, the officers chose to let the men leave the immediate vicinity before stopping them because they were concerned that apprehending them in front of the apartment would have likely alerted anyone still inside the apartment to the presence of the police. There was nothing that required the officers to stop the men in the car.
If there was reasonable suspicion of the two mens’ involvement in criminal activity—possibly due to their earlier presence in this particular apartment—then a Terry stop would have been justified at a location away from the immediate vicinity of the apartment and there would be no need to attempt use of the Summers rule.
In March through May of 2013, the Court is expected to rule on issues relating to warrantless blood draws in DUI cases, using a drug detection dog at the front door of a private residence, and the routine taking of DNA samples from arrestees without a warrant. These decisions will be discussed in an upcoming article.
Randy Means is a partner in Thomas & Means, a law firm specializing entirely in police operations and administration. He has served the national law enforcement community full time for more than 30 years and is the author of “The Law of Policing,” which is available at LRIS.com. He can be reached directly at firstname.lastname@example.org.