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Home  >  Topics  >  Legal

December 21, 2012
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Terrence P. Dwyer, Esq. Police Liability and Litigation
with Terrence P. Dwyer, Esq.

2012 in Review: Supreme Court decisions affecting cops

From GPS warrants to eyewitness testimony to governmental immunity, this past year has been a mixed bag of legal goodies for law enforcement

It is that magical time of year once again when all that was possible has been realized and we anxiously look ahead to see what will come. I am, of course, referring to the annual review of the past year’s U.S. Supreme Court cases.

Did you expect anything else?

From GPS warrants to eyewitness testimony to governmental immunity, this past year has been a mixed bag of legal goodies for law enforcement.

Fourth Amendment Issues
We began the year with the Court’s dubious assertion of privacy protection in the context of law enforcement’s use of a global positioning device on a suspected drug dealer’s vehicle in United States v. Jones. The question presented by the Court for argument was whether warrantless use of a tracking device on the suspect’s vehicle to monitor its movements on public streets violated the Fourth Amendment.

However, the Court decided the case on narrower grounds by finding that the vehicle operated by Jones was an “effect” within the meaning of the Fourth Amendment and this “effect” was trespassed upon by the government.

Left unanswered — presumably for another day — was the issue of the reasonableness of prolonged government monitoring via GPS. The Jones facts show that the government originally applied for a warrant to install the GPS in the District of Columbia. The 10 day installation period provided in the warrant was not met and installation did not occur until the 11th day in the State of Maryland.

Law enforcement proceeded to monitor Jones’ movements for 28 days. At trial he subsequently made a motion to suppress evidence obtained from the GPS surveillance. The majority opinion of Justice Scalia resurrected the trespass standard from the 1928 case Olmstead v. United States which required a physical government intrusion in order to find an unlawful search or seizure of evidence.

In 1967 the Court adopted a broader “reasonable expectation of privacy” standard in Katz v. United States thereby not necessarily requiring a physical intrusion to find a Fourth Amendment violation.

The Court found the trespass upon the Jones vehicle caused by the placement of the GPS to be dispositive of the Fourth Amendment issue without providing any further guidance. The lower court D.C. Circuit Court opinion in United States v. Maynard, from which the Jones case came, offers a clearer and sounder explanation of the law in this area. The bottom-line analysis to take away from Jones is to favor caution and proceed with a warrant.

Fallibility of Eyewitness Testimony
When it comes to the reliability of eyewitness identification, the Court has been quiet since it last looked at the issue in the 1977 case of Manson v. Brathwaite. Four years later in Watkins v. Sowders, the Court last considered due process related issues concerning the conduct of a hearing related to a defendant’s challenge of eyewitness testimony.

In Perry v. New Hampshire, issued this past July, the Court held that the due process clause of the Fourteenth Amendment did not require a preliminary judicial inquiry into the reliability of eyewitness identification when the identification was not procured by the police. Perry involved a suspect who broke into a vehicle at an apartment complex during early morning hours.

Police were called and found Barion Perry in the parking lot with stereo amplifiers. While an officer spoke with Perry, the owner of the amplifiers arrived and told police the amplifiers were his and, though he did not see who took the amplifiers, he was notified by his neighbor who had contacted the police.

A second officer — along with the amplifier owner — went to speak to the neighbor witness. While interviewing the neighbor, she made an unprompted positive identification of Perry who remained in the parking lot speaking with the first officer.

Perry was arrested and several days later. The neighbor witness was unable to pick him out of a photo lineup shown to her by police.

Before the trial, Perry moved to suppress the identification by as being suggestive and unreliable. The motion was denied and at trial the neighbor testified to her identification of Perry at the scene but was not asked to point him out in the courtroom. On appeal, Perry argued the inherent fallibility of eyewitness testimony and the due process implications of faulty identification.

The Supreme Court said that Perry’s reliance on the Court’s prior eyewitness identification cases involved police-initiated identifications which involved improper police action. Here there was no improper police action or police initiated identification procedure. Additionally, despite studies which point to unreliability among eyewitnesses, there is no due process requirement for independent judicial review.

According to the Court, the credibility and reliability of a witness is left to the jury and the defense has the ability to offer evidence to challenge or discredit the witness.

Strip Searches and Privacy Rights
The invasiveness of strip searches and privacy rights were the subject of Florence v. Board of Chosen Freeholders of the County of Burlington.

Albert Florence had to submit to two strip searches at two different county jails after his vehicle was pulled over and he was arrested on a warrant for failure to pay a fine. Florence had actually paid the fine but the warrant was not removed from the system.

The treatment of Florence as he was processed at each jail did not differ from other detainees. However, he objected based on the fact his arrest was for a minor offense.

He brought suit under 42 U.S.C. §1983 alleging constitutional violations of his Fourth and Fourteenth Amendment rights.

The Court, in rejecting his argument, deferred to the legitimate security interests of correctional facilities. Justice Kennedy also addressed Florence’s minor offense rationale by stating that “the seriousness of an offense is a poor predictor of who has contraband and that it would be difficult in practice to determine whether individual detainees fall within the proposed exemption.”

Kennedy cited the cases of Oklahoma City bomber Timothy McVeigh, New York serial killer Joel Rifkin, and one of the Flight 93 9/11 terrorists, who were all stopped for traffic violations, as examples of the discrepancy between a relatively minor offense and an individual’s threat level.

As long as there is a reasonable balance between inmate privacy and the security needs of the facility search procedures will not be subject to individualized review under the Fourth and Fourteenth Amendments.

The Florence case sought damages under the Civil Rights Statute (42 U.S.C. §1983) from several governmental entities and law enforcement officials.

In a PoliceOne article this past June, I analyzed the Supreme Court’s decisions in three 2012 cases concerning the extent of public officer liability when sued under the §1983 statute (“U.S. Supreme Court Examines Scope of Governmental Immunity”).

The three cases — Millender v. Messerschmidt, Rehberg v. Paulk and Filarsky v. Delia — continued the Court’s frequent analysis of governmental immunity cases. In each of the cases, the Court extended qualified immunity coverage to the actions of the involved government agents.

The Millender decision found a “good faith” objective reasonable basis for a police officer’s reliance on his belief in the probable cause established in a search warrant. In Rehberg the Court held that a government official acting as a complaining witness in a grand jury proceeding was entitled to the same immunity in a §1983 lawsuit as a witness who testifies at trial.

The Filarsky decision then held that an individual hired by the government to perform a government function was entitled to qualified immunity.

A fourth case — Reichle v. Howards — joined the trio. The Reichle facts involved a 2006 appearance by then Vice-President Cheney at a Colorado shopping center. Steven Howards, an attendee at the event, verbally criticized Cheney and then reached out and touched him on the shoulder.

Two Secret Service agents arrested Howards for assault.

The criminal charges were dropped by the local prosecutor and Howards sued the agents for retaliatory arrest. His lawsuit was premised upon the First Amendment. The issue before the Supreme Court was whether one can make a First Amendment retaliatory arrest claim when there was probable cause for the arrest and if qualified immunity applied to such a claim.

The district court had denied the agents’ motion for summary judgment ruling that qualified immunity was not available under the circumstances. The Tenth Circuit affirmed the decision of the district court.

The Supreme Court reversed and held the agents were entitled to qualified immunity because the at the time of Howards’ arrest it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation. Justice Thomas, writing for the Court, said the “clearly established” rule was not met in this case and that the Court had not previously recognized a First Amendment right to be free from retaliatory arrest if there was probable cause.

Immigration and Arizona’s SB1070
Last in this year-end review is the case, Arizona v. United States, dealing with Arizona’s SB1070 legislation, otherwise known as the “Support our Law Enforcement and Safe Neighborhoods Act.”

The Act, signed into law on April 23, 2010 by Governor Brewer, contained several provisions pertaining to immigration. Three of the provisions were ruled unconstitutional by the Court.

The stricken provisions required illegal immigrants to carry registration documentation at all times, made it a crime for an illegal immigrant to search for or hold a job in the state, and allowed police to arrest individuals suspected of being illegal immigrants.

The Court, however, did uphold one provision which allowed police officers who have lawfully stopped an individual to make an inquiry into the immigration status of the individual if there is reasonable suspicion to suspect the person may be in the country illegally.

Section 2(B) of SB1070 was not preempted by federal law as presently crafted though the Court said future challenges may arise once the law is implemented and put into practice. It is likely we may hear more from the Court on this issue in years to come, especially as other states have followed Arizona’s lead and put forward similar legislation.

So there it is. As we close out another year and await the Court’s release of its decision next year in the Florida dog sniff cases and its take on the DNA collection case from Maryland among other criminal law related cases before the Court.

But, more importantly as we begin to embark on what is traditionally a reflective time for us all, let us not forget those brave men and women in law enforcement who made the ultimate sacrifice in 2012. They shall continue to be honored and their memory preserved in the professionalism and service that is the mark of American law enforcement.


About the author

Terrence P. Dwyer retired in 2007 from the New York State Police after a 22-year career. He is now an Associate Professor in the Justice and Law Administration Department at Western Connecticut State University and an attorney in private practice representing law enforcement officers in discipline cases, critical incidents, and employment matters.

Contact Terry Dwyer





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