Circuit Splits

Baby Earl and His Opaque Package: When a Container Proclaims Its Contents

Imagine that you are at an airport and you see a traveler carrying the following case:

That the traveler stores his guitar inside that case is a foregone conclusion, wouldn't you agree? To open the case, the Fourth Amendment requires law enforcement to first obtain a warrant, absent some exception.

One such exception to the Fourth Amendment permits warrantless searches of “containers (for example a kit of burglar tools or a gun case) [that] by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance." Arkansas v. Sanders, 442 U.S. 753, 764 n.13 (1979). In other words, where a container has a "distinctive configuration" that "proclaims its contents," its contents are a "foregone conclusion." See Robbins v. California, 453 U.S. 420 (1981) (plurality op.).

This exception is the subject of today’s circuit split. Last week, the Fourth Circuit wrestled with the scope of the “proclaims-its-contents” exception to the warrant requirement in United States v. Davis, No. 09-4890, 2012 U.S. App. LEXIS 17217 (4th Cir. Aug. 16, 2012). In his dissenting opinion, Judge Andre Davis outlined the following division over the proper application of this exception:

The constitutionality of this corollary to the plain view seizure doctrine is widely accepted, but there seems to be a circuit split with respect to whether the "foregone conclusion" analysis incorporates extrinsic evidence and/or an officer's specialized knowledge. In Williams we considered relevant that the officer had years of experience in narcotics investigations. 41 F.3d at 198. Other circuits have instead analyzed the question from the objective viewpoint of a reasonable layperson. See, e.g., United States v. Gust, 405 F.3d 797, 803 (9th Cir. 2005) ("[C]ourts should assess the nature of a container primarily with reference to general social norms rather than solely by the experience and expertise of law enforcement officers.") (internal quotation marks and alteration omitted); United States v. Meada, 408 F.3d 14, 23 (1st Cir. 2005) (holding that the defendant had no reasonable expectation of privacy in the contents of a container that was labeled "GUN GUARD" and thus was "readily identifiable as a gun case"); United States v. Villarreal, 963 F.2d 770, 775-76 (5th Cir. 1992) (holding that even though fifty-five gallon drums were labeled "phosphoric acid," their contents could not necessarily be "inferred"; "The fact that the exterior of a container purports to reveal some information about its contents does not necessarily mean that its owner has no reasonable expectation that those contents will remain free from inspection by others."); United States v. Bonitz, 826 F.2d 954, 956 (10th Cir. 1987) ("This hard plastic case did not reveal its contents to the trial court even though it could perhaps have been identified as a gun case by a firearms expert."). I believe the latter view is the proper one, because it is consistent with the underlying rationale that a person does not maintain a reasonable expectation of privacy in contents of a container that are essentially open to view.

Id. at *130–131 n.13 (Davis, J., dissenting).

(In case you were wondering, "Baby Earl" is the name of the defendant in Davis according to the opinion's caption, which reads: "United States of America, Plaintiff-Appellee, v. Earl Whittley Davis, a/k/a Baby Earl, a/k/a E, Defendant-Appellant." You'll have to read the opinion to find out what was wrapped inside Baby Earl's opaque package.)

Issues in Constitutional Litigation: A Context and Practice Casebook [Book Review - Part 2 of 2]

Yesterday I reviewed Professor Sarah Ricks and Professor Evelyn Tenenbaum's new casebook entitled Current Issues in Constitutional Litigation: A Context and Practice Casebook (Carolina Academic Press 2011). In case you missed it yesterday, you can find my review of the professors' new casebook here.

Today I wanted to encourage readers to check out the following two sample chapters, which you can download for free on SSRN:

• Chapter Five - 42 U.S.C. § 1983 Action Under Color of Law. To give you a better idea of the layout of each chapter, here is a screenshot of chapter five's table of contents:

• Chapter Fourteen - Protecting Freedom of Religion in Prison: The Free Exercise Clause and RLUIPA. And here is a screenshot of what you can expect to find in this chapter:

Is the Langdellian case method finally showing signs of aging? Should law professors abandon the casebook/Socratic method of teaching law in favor of the "context-and-practice method"? I invite readers to share their thoughts by leaving a comment below!

Issues in Constitutional Litigation: A Context and Practice Casebook [Book Review - Part 1 of 2]

Each year new crops of wide-eyed 1Ls listen to law professors opine that they must learn how to "think like a lawyer.” Yet, as the New York Time’s David Segal pointed out in a recent article entitled “What They Don’t Teach Law Students: Lawyering,” the law-school curriculum has, for more than a century now, “emphasized the theoretical over the useful.” But to quote the great Bob Dylan, “The times they are a-changin.’”

According to an article in the Wall Street Journal (here), many of the nation’s top law schools “are throwing out decades of tradition by replacing textbook courses” with courses like Indiana Law’s “course of so-called emotional intelligence,” Harvard Law’s new “problem-solving class for first-year students,” and Stanford’s “full-time clinical course” in which students must complete “several 40-hour plus weeks of actual case work” to graduate.

Professor Sarah Ricks of the Rutgers School of Law was nice enough to send me a courtesy copy of her new casebook, which she coauthored with Professor Evelyn Tenenbaum of Albany Law School, entitled Current Issues in Constitutional Litigation: A Context and Practice Casebook (Carolina Academic Press 2011). As the title suggests, this casebook is designed to help students think about the law from the perspective of a practicing lawyer. Like many of the great casebooks on the subject that have come before it, Issues in Constitutional Litigation covers the landmark Supreme Court cases with intelligent commentary and thoughtful organization. Unlike many of the great casebooks on the subject that have come before it, the book also focuses on federal circuit decisions, with a particular emphasis on both established and emerging circuit splits. Each chapter also strives to capture the human element of practicing law--something that legal opinions frequently fail to convey. Students will read letters from inmates, review historical documents like the 1867 cover of Harper's Weekly depicting black men casting their "first vote," receive practice pointers from seasoned veterans, and receive exposure to a host of other "real-world" issues that help bring the cases to life.

To be clear, Issues in Constitutional Litigations does not trash the traditional casebook model. The important cases are all still there. Instead, the book improves upon the old casebook model in two important ways. First, it places each case in a broader context that helps explain the doctrinal developments that might otherwise feel counterintuitive or arbitrary to students who limit their study of the subject to the four corners of the opinions.

Second, the book emphasizes the advocate's role in shaping the development of constitutional law. This is a critical component of thinking like a lawyer; and one that the casebook/Socratic method tends to neglect. The biggest criticism I have heard from seasoned attorneys about their freshly minted colleagues--which I largely attribute to the casebook/Soctratic method of teaching--is that law students graduate with the impression that they are supposed to analyze and apply the law in a disinterested, neutral manner as they might in the classroom when called on by their professor to recite the previous night's reading assignment. Issues in Constitutional Litigation does an excellent job illustrating the relationship that attorneys have with the court and their client, as well as the active role attorneys play in shaping the law through zealous advocacy for their client's interests. In other words, the book focuses the reader's attention on the process through which constitutional law is made, not solely on the finished product of that process.

The book, Professor Ricks explains, accomplishes this by "plac[ing] students in roles as practitioners handling simulated law practice problems" and provides a more engaging learning experience through the use of "exercises, visual aids, and questions to guide student reading." The book also "includes materials that help students reflect on their professional roles.” You can purchase Current Issues in Constitutional Litigation online here. Tomorrow’s post will feature an excerpt from the book that you won’t want to miss. 

Consenting to "Quick Look" Police Searches

To my knowledge, no academic articles have used this moniker to describe cursory, warrantless searches of cars or premises, but the phrase appears to be emerging as part of the nomenclature of appellate courts, and seems to be a regular part of police jargon.  A “quick look” appears fairly consistently as part of police requests for consent to a search, and courts must then analyze the scope of the authorized search when a suspect acquiesces to such verbiage.  

The phrase “quick look” semantically suggests something like a plain view/plain touch search, but some courts hold that the scope is the same as for a full search, including the opening of closed containers.

 See, e.g., U.S. v. Rosborough,  366 F.3d 1145, 1151 (10th Cir. 2004)(distinguishing case from "the case in Wald, where we held that an officer's request to take a "quick look” constitutes a limited request to search); U.S. v. Wald, 216 F.3d 1222, 1228 (10th Cir. 2000) (scope of consent exceeded because officer's statement that he just wanted to take a “quick look inside the vehicle” limited consent to vehicle interior and did not extend to trunk). Within the 10th Circuit, however, these cases must be reconciled with U.S. v. Ramstad, 308 F.3d 1139, 1146-47 (10th Cir. 2002)(consent to let officer take a "quick look" around motor home authorized a search of closed containers as well).  The Sixth and Eighth Circuit seems to be taking a similar approach – see U.S. v. Walsh, 299 F.3d 729, 733 (8th Cir. 2002)(holding that officers' "quick look" into storage shed was justified by exigent circumstances, but "quick look" into bedroom was not, leading to admissible of evidence from the former and exclusion of evidence from the latter); U.S. v. Purcell, 526 F.3d 953, 957 (6th Cir. 2008)(discussing "consent for quick look around bedroom" as opposed to subsequent consent for more complete search).  [click below to read more]

 

Why the GPS-Tracking Case is Just the Beginning for the Supreme Court

So far, the Supreme Court’s October 2011 term has lived up to the hype. Yesterday, the Supreme Court issued its highly anticipated opinion in the GPS-Tracking Case, in which it unanimously held “that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’” under the Fourth Amendment. Although the Court avoided directly addressing the issue, this may mean that law enforcement must now obtain a search warrant before installing a GPS-tracking device on a suspect’s car. You can read the full opinion on the Supreme Court's website here.

It's worth noting that when the Court first surveyed the privacy landscape some forty years ago in Katz v. U.S., telephones were connected by wires and global positioning required a map and compass. Today, however, modern technology allows us to connect by "texting," "tweeting," or "facebooking." And finding our precise latitude and longitude on the globe is a matter of simply turning on our cell phones.

The reasonable expectation of privacy test is, not suprisingly, beginning to show signs of aging. As emerging technologies continue to reshape the nature and volume of personal information we share with others, expect to see courts continue to struggle with hitting the moving target that is our "reasonable expectation of privacy." Take, for example, the following circuit conflict over the warrantless search of cell phones, which was recently identified by a federal court in Oregon:

Compare, e.g., United States v. Hill, 2011 WL 90130 (N.D. Cal. Jan. 10, 2011) (upholding warrantless search of iPhone photos incident to arrest); United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007) (upholding warrantless search of cell phone incident to arrest); United States v. Wurie, 612 F.Supp.2d 104, 109-111 (D. Mass. 2009) (same); People v. Diaz, 2011 WL 6158 (Cal. Jan 3, 2011), (same) with United States v. Quintana, 594 F.Supp.2d 1291, 1298-99 (M.D. Fla. 2009) (holding warrantless search of cell phone not justified as search incident to arrest); United States v. Park, 2007 WL 1521573 (N.D. Cal. May 23, 2007) (same); United States v. Lasalle, 2007 WL 1390820 (D.Hawai'i May 9, 2007) (finding warrantless cell phone search invalid where it was not clear that phone was on defendant's person and search not contemporaneous with arrest); State v. Smith, 920 N.E. 2d 949 (Ohio 2009) (suppressing warrantless cell phone search). . . . 

Schlossberg v. Solesbee, No. 10-6014-TC, at n.2 (D. Or. Jan. 13, 2012).

Related Reading

• Julia Angwin & Scott Thurm, Judges Weigh Phone Tracking, WSJ.com (Nov. 9, 2011) (available here).

• Bill Mears, Justices rule against police, say GPS surveillance requires search warrant, CNN.com (Jan. 23, 2012) (available here).

• Adam Liptak, Justices Say GPS Tracker Violated Privacy Rights, NY Times (Jan, 23, 2012) (available here).

• Mike Sacks, Warrantless GPS Tracking Unconstitutional, Supreme Court Rules, HuffingtonPost.com (Jan. 23, 2012) (available here).

(Image courtesy of WSJ.com).

New Exception Allowing Warrantless Home Entries Headed to the High Court?

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . .” Although the Fourth Amendment predates the invention of Henry Ford’s famous Model-T by more than a century, today, automobiles fit squarely within the Fourth Amendment’s definition of “effects.” As such, a police officer must obtain a warrant before searching a person’s car, absent some exception justifying the warrantless search.

One such exception is the “community caretaking exception,” which justifies an otherwise unconstitutional warrantless search of an automobile where the search is conducted by law enforcement in an attempt to protect the general public from harm, as opposed to a search conducted during the course of a criminal investigation. In carving out this exception to the warrant requirement, the Supreme Court was willing to permit law enforcement acting as “community caretakers” to search an individual’s vehicle without a warrant because, among other things, the invasion of privacy is relatively minimal compared to the intrusion that occurs when law enforcement decides to invade the inner sanctity of one's home.

As such, a conflict between the circuits has developed over whether the community caretaking exception extends beyond cars to also justify warrantless searches of the home. A case issued by the Southern District of Texas on January 3, 2012 highlights this split:

Although the Supreme Court has carved out a community caretaking exception for searches of vehicles, Cady v. Dombrowski, 413 U.S. 433, 439, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973), "[t]here is some confusion among the circuits as to whether the community caretaking exception set forth in Cady applies to warrantless searches of homes." Ray v. Township of Warren, 626 F.3d 170, 175 (3rd Cir. 2010). See, e.g., US v. Quezada, 448 F.3d 1005, 1007 (8th Cir. 2006) ("A police officer may enter a residence without a warrant as a community caretaker where the officer has a reasonable belief that an emergency exists requiring his or her attention."); US v. Rohrig, 98 F.3d 1506, 1520-21 (6th Cir. 1996) (finding that precedents suggest a late night disturbance of the peace might present exigent circumstances justifying warrantless searches); US v. Bute, 43 F.3d 531, 535 (10th Cir. 1994) ("We agree with this line of authority holding the community caretaking exception to the warrant requirement is applicable only in cases involving automobile searches."); US v. Erickson, 991 F.2d 529, 531 (9th Cir. 1993) ("The fact that a police officer is performing a community caretaking function, however, cannot itself justify a warrantless search of a private residence."). Yet these cases do not simply rely on the Cady community caretaking doctrine; "[t]hey instead apply what appears to be a modified exigent circumstances test, with perhaps a lower threshold for exigency if the officer is acting in a community caretaking role." Ray, 626 F.3d at 177.

Harvey v. Montgomery Cnty., Civ. No. 11-CV-1815 (S.D. Tex. Jan. 3, 2012) (mem. op.).

In rejecting the plaintiff’s claim that law enforcement violated a clearly established law and were therefore not entitled to qualified immunity, the court added,

The Fifth Circuit has not addressed the issue, and Courts of Appeals disagree about whether a community caretaking exception extends to searches of homes. Therefore, the Court cannot conclude that it would have been apparent to an objectively reasonably officer that the search of Harvey's home was in violation of the law. Id. Indeed, from either the Dispatch Notes or the 9-1-1 call itself, an officer could have operated under a reasonable belief that there was an emergency on Harvey's property. (Ex. A to Mot. Dismiss, p. COU 0004; Ex. A to Compl., Transcription of 9/11 Call of 5/16/09.) As a result, the Deputies are entitled to qualified immunity as to Harvey's unreasonable search claim.

Id. at *55.