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SCOTUS and the Fourth

Some people just know how to party, and those attending a bash in the northeast section of Washington, D.C. a decade ago certainly did.  Strippers, alcohol galore, marijuana, people having sex upstairs; a pretty good time, unquestionably.  At least until the cops showed up.

But it got better for Theodore Wesby and 15 others.  They were arrested and charged with disorderly conduct.  Although the charges were dropped, they decided to do what any red-blooded American would do:  they sued under 28 USC 1983, claiming their rights had been violated. 

A jury gave them a million dollars, but the Supreme Court reversed a few weeks back in District of Columbia v. Wembly.  

1983 actions often involve search issues, but those cases aren't a perfect vehicle for resolving Fourth Amendment questions.  The police get a defense of qualified immunity:  even if a court determines that the search was illegal, the plaintiff must still show that the officers knew or should have known that the law prohibited their actions.  Ginsberg and Sotomayor argued that the law in this area is unsettled, and the Court should have found that and called it a day.

Thomas and the rest of the justices had no trouble getting to the merits -- whether the officers had probable cause to arrest the partygoers.  Thomas and the rest of justices decided that under the "totality of the circumstances" -- the mantra in search and seizure law - the officers had little reason to credit the claim that everyone was there for a bachelor party, particularly since no one was able to identify who the bachelor was.   

The case speaks more to the law on qualified immunity than on search and seizure, but the Court also recently had oral argument in two "real" Fourth Amendment cases. 

In Collins v. Virginia, the police tried to stop somebody on a motorcycle.  Fat chance:  the guy took off at speeds over 100 mph, and the cops halted the chase.  They got word that the rider was Ryan Collins, so they went to the house where he spent several nights a week.  They saw a motorcycle parked under a white tarp in the driveway, and one of the officers lifted the tarp, which allowed him to see the license plate and VIN, which in turn allowed them to determine it had been stolen.

The arguments on both sides were simple.  The state argued that the automobile exception allowed for a search of the vehicle, regardless of its location.  Collins argued that the driveway was part of the curtilage of the home, and the police needed a warrant to enter it.

So much for simplicity.  Alito questioned whether the Court had ever gone so far as to treat the curtilage exactly was it would the home, but Kagan seemed to think it had.  Kennedy asked Collins' attorney whether the mobility of the vehicle was irrelevant to the case.  Roberts used the Ferrari in Ferris Bueller's Day Off to ask whether the state's argument meant that the police could actually enter the home and search a car inside it.  The state's lawyer suggested that the line could be drawn at the house, but Gorsuch didn't care for that:  did that mean the police "can search for cars in garages, closed garages, carports, anywhere on a property no matter how closely attached or even if firmly attached to the house?"

My guess is that the Court's going to split the baby on this one.  Or it might just kick it back to the state courts; the appellate court had determined that exigent circumstances existed because Collins was aware of the police presence, but the state supreme court hadn't addressed that issue.

Terrence Byrd was the victim of a Bullshit Traffic Stop™ (drivers must use the right-hand lane whenever possible) while driving on I-81 in Pennsylvania.  Things got worse:  the cops tossed the car and found heroin and a bullet-proof vest in the trunk, and the trial court found that Byrd didn't have standing to argue that the search was unconstitutional, because he was driving a rental car, his girlfriend had rented it, and the rental agreement provided that only the listed driver -- the girlfriend -- could drive it.  Since he wasn't listed as the driver, he had no privacy interest in the car.

The normal rule here would be that someone driving a car with the owner's permission has standing to contest a search, and some justices had problems with allowing Fourth Amendment rights to be determined by contract principles revolving around a rental agreement.  Gorsuch suggested that the whole privacy thing was a bit too hard to calculate in these types of cases, and suggested that property rights were the appropriate focus:  under those principles, Byrd would have a superior right to possession against everyone except the girlfriend and the rental car company. 

Breyer didn't buy into the property rights analysis, but did seem somewhat agreeable to Byrd's privacy argument, posing the question of whether someone in Byrd's position "has a reasonable expectation of privacy, unless in driving or possessing it, he's committing a crime?"  And Alito raised another issue:  would that mean that even the listed driver would lose a reasonable expectation of privacy if they had violated any other provision of the rental agreement?  Roberts, on the other hand, apparently bought into the state's argument:  "If it's not an authorized driver, that's it."

Last year, the Supreme Court didn't hand down any significant 4th Amendment decisions.  Collins and Byrd will probably change that.  One thing's for sure, especially in Byrd:  the Court has to make a decision.  Byrd's petition for certiorari notes that the Federal Circuits and many state courts are split on this.  Texas, for example, has held that there is no privacy interest in a rental car if you're not listed on the agreement, while the 5th Circuit, which covers Texas, has ruled to the contrary.  That means if you're stopped in Texas in that situation, what happens depends upon whether the state or the Federales take the case.


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