recent term of the United States Supreme Court concluded on June 30 and, until
June 25, the term was not especially significant to police law watchers. But
with the Court’s end-of-term decisions in Riley
v. California and its companion case, United
States v. Wurie, the Supreme Court took a much anticipated and monumental
leap into the realm of 21st century technology, carrying the Fourth
Amendment along with it.
unanimously affirming core Fourth Amendment principles and applying the
traditional balancing-of-interests test, the Court laid the groundwork for the
manner in which law enforcement officers, moving forward, must view individual
privacy interests when seeking digital evidence of a crime. Riley and Wurie are discussed below, along with other constitutional law
cases of interest to law enforcement.
There were a total of six cases dealing with the Fourth Amendment but no
Fifth or Sixth Amendment police law cases.
Hot Foot Pursuit/Qualified
case of Stanton v. Sims (Nov. 4, 2013) involved the question of whether an
officer in “hot pursuit” can enter private premises—in this case a solidly
fenced and gated residential curtilage—to arrest a suspect for a minor but jailable
misdemeanor offense, here the failure to obey an officer’s order to stop.
bystander was injured when the foot pursuit continued onto the curtilage of her
fenced property and she was inadvertently struck by her gate when the officer
forced it open to continue his pursuit. Her civil lawsuit alleged, among other
things, that the officer violated her Fourth Amendment right to be free from
unreasonable searches when he entered the curtilage of her property without a
warrant or consent.
type of lawsuit, an officer is entitled to immunity from civil liability if he
can show that his actions did not violate clearly established constitutional
principles—that he was operating in a grey area in which the law was not
clearly settled. In a per curiam opinion, the Supreme Court reversed the Ninth
Circuit and held that the officer was indeed entitled to qualified immunity. The
law regarding the involved constitutional question was not clearly established
at the time of the incident.
still isn’t. Although the officer in this instance was shielded from civil
liability, it is important to understand what the Court did not do in this
case. Although the officer won, the Court did not hold that the officer’s
warrantless entry was lawful. It only held that the law in this area is
unsettled and that the officer therefore qualified for immunity from civil
liability. Like many other cases in which federal courts grant qualified
immunity to a law enforcement officer, law enforcement officers should not
necessarily read such a pronouncement as judicial approval for the actions of
the officers involved.
federal law currently stands, it is pretty clear that an officer who is in hot
pursuit of a suspect based on probable cause to arrest for a felony offense may
continue that pursuit into private premises without a warrant or consent as
necessary to complete the arrest process. If, however, the suspect’s offense is
a misdemeanor, there is a pronounced split of opinions among the federal courts
of appeals and among state appeals courts. That is, in many (but not all)
jurisdictions the seriousness and/or dangerousness of the suspected offense
will be determinative, as in situations applying the exigent circumstances
exception to the warrant requirement.
the Supreme Court squarely addresses this issue, officers in hot pursuit
situations unfortunately will need to remember the law of their own appeals
courts to know what they can and cannot do under the Fourth Amendment. Even if
the Supreme Court resolves the federal issue, state appeals courts may
interpret state law to be more restrictive than the federal Constitution. The
safe choice, at least as long as these uncertainties continue, would be to
refrain from entering private premises in hot pursuit unless it involves
relatively serious and/or dangerous subject matter—as in exigent circumstances.
v. California (Feb. 2, 2014), the Supreme Court considered an extension of the
rule first announced in Georgia v.
Randolph, 547 U.S. 103 (2006). Randolph
held that where both adult co-residents of a jointly occupied residence are
present, the denial of consent to search the common areas of the premises by
one party overrules an otherwise valid consent to do so given by the other
party. In Fernandez, the question
presented was whether the refusal to grant consent remains prohibitive even
after the objecting party has left the premises and the consenting party
remains, continuing to consent.
and his girlfriend were both present in their shared apartment when officers
arrived there as part of a robbery investigation. During the course of the
investigation, Fernandez refused to give his consent to search the apartment. By
that time, though, officers had developed probable cause to arrest Fernandez for
assaulting his girlfriend, so he was lawfully arrested and taken to jail.
returned to the apartment approximately an hour later and received consent from
the girlfriend to search the apartment, where they located evidence implicating
Fernandez in the robbery. At his trial, that evidence was used against him to
secure his conviction. His subsequent appeals led to the U.S. Supreme Court,
where the question was whether the Randolph
rule still applies, even after the party denying consent has left the premises
(in this case courtesy of the arresting officers).
Supreme Court held that Randolph will
be interpreted narrowly to mean that the denial of consent is only effective
while the objecting party remains actually
present. Since Fernandez was no longer present, his acknowledged refusal to
grant consent no longer applied and his girlfriend’s consent was
sufficient. The Court further explained
that the manner in which Fernandez left the premises—here at the hands of the
police—was not a relevant factor so long as the police action was objectively
reasonable. Any subjective motivation that the officers may have had in making
the arrest was irrelevant because the arrest of Fernandez was objectively
Anonymous Tips/Drunk Driving
In the very
strange decision in Navarette v. California (April 22, 2014), the Court
addressed the question of whether an anonymous tip from a motorist, alleging an
act potentially indicative of drunk driving by another motorist, can, by
itself, form reasonable suspicion to stop the alleged drunk driver. Here, an
unnamed motorist called the police to state that a particular vehicle just ran
her off the road.
time later, officers located the vehicle on the road, followed it a short
distance but noticed no law violation, then stopped the vehicle based upon the
anonymous complaint. Arrest and conviction ensued. Appeals wound their way to the Supreme Court.
The Supreme Court held that, under the specific circumstances of this case,
there was reasonable suspicion for the stop.
the holding in this case relied on strained facts very specific to this case
and because the 5-4 majority opinion was not well developed or even very
understandable (see the blistering dissent), officers should use considerable
caution when relying on the holding of this case as authority to make a similar
officers who find themselves in a like situation are better advised to either
(1) attempt to gather more information from the caller, (2) develop independent
reasonable suspicion, (3) or attempt to engage the driver of the vehicle in a
purely voluntary contact, should the vehicle being followed come naturally to a
Vehicle Pursuit/Deadly Force
v. Rickard (May 27, 2014) involved a vehicle pursuit, which ended in the death
of the driver and passenger of the fleeing vehicle. During the pursuit,
numerous officers’ lives were threatened by the manner in which the fleeing
vehicle was being driven. Police officers shot and killed both (eventually
learned to be unarmed) occupants while they remained non-compliant in the
vehicle as it came to a stop. The deceased
driver’s family sued the officers alleging, among other things, a violation of
the driver’s Fourth Amendment rights in the officers’ use of deadly force. The
Supreme Court held for the officers.
particular interest was the Court’s response to the plaintiff’s allegation that
the officers’ firing of 15 shots in 10 seconds was unreasonable. The Court held
that the officers were not required to stop shooting until it was clear that
the threat has been stopped. Since this was a lawsuit filed by the driver’s
family, the Court did not consider the reasonableness of the deadly force
against the other occupant. Also, the fact that the officers’ actions were not
unconstitutional does not rule out a state law-based tort claim in a similar
case where state law might be friendlier to plaintiffs than Fourth Amendment
Cell Phone Searches
v. California and United States v. Wurie (June 25, 2014) involve the
warrantless search of an arrestee’s cell phone incident to a lawful arrest.
Under the rule first announced in United
States v. Robinson, 414 U.S. 218 (1973), every lawful custodial arrest
carries with it the authority for an officer to conduct a full warrantless search
of the arrestee’s person, any carried belongings and the area within his
immediate control, to include opening and examining the contents of any closed
case identified two underlying rationales: (1) the need of the police to disarm
an arrestee prior to taking him into custody and (2) the need to secure any
evidence or contraband in the arrestee’s possession that might otherwise be
lost or destroyed.
appeals courts have been deeply divided as to whether the Robinson bright-line rule extended to the warrantless viewing of
the digital contents of a cell phone found in an arrestee’s possession—but the
answer is now found in the Supreme Court’s new rulings in Riley and Wurie. Such
warrantless searches of the digital contents of a cell phone (and presumably
other types of computers) are unreasonable under the Fourth Amendment. A search
warrant is now the rule. Warrantless searches of digital content on electronic
devices incident to arrest are out.
officer conducting a search incident to arrest is still permitted to open a
cell phone (such as a flip phone) or otherwise physically examine the device to
determine that it is not a weapon. There are exceptions to the warrant
requirement, even regarding digital content. If there is probable cause to believe
that an actual emergency exists where there is an immediate need to examine the
digital contents of the phone to avert serious injury or death, or the loss or
destruction of evidence of a serious crime, or the escape of a serious
criminal, a warrantless search would be permitted. Of course, seeking consent
to search from the owner or possessor of the phone is always an option.
Zachary Miller is a police officer and serves
as Associate Director of the Police Authority Training System (PATS), a national
computer-based legal training initiative of the Thomas & Means Law Firm.
Randy Means is formerly head of the legal
department at a state law enforcement training center, in-house counsel to a
major city police department, past head of the national association of police
attorneys (IACP-LOS). He can be reached at firstname.lastname@example.org. His book, The Law of Policing, is available online.