A Very Police-Filled Tuesday—Where Was Sting?

To continue with last week’s theme of “recently-heard Supreme Court cases that have to do with the way the American police force operates,” this week I’m taking a look at two cases for which the Supreme Court handed down decisions yesterday, February 19. The first, Florida v. Harris, (see here or here) was argued on October 31, 2012, and the second, Bailey v. United States, (see here or here) was argued on November 1, 2012. Both cases, similar to last week’s Missouri v. McNeely, address how policemen carry out the investigative aspect of the jobs, and the Fourth Amendment is the main focus in each case.

The main question in Florida v. Harris was whether a drug-sniffing dog’s alert is sufficient enough “probable cause” to allow its police officer handlers to search a vehicle’s interior without a warrant. Clayton Harris was charged by the State of Florida with the possession of pseudoephedrine and the intent to make methamphetamine; however, like in McNeely, he moved to suppress the evidence because his car had been searched (and the pseudoephedrine found) without a warrant. Police had originally searched his car when, as they pulled Harris over for expired registration, a drug-sniffing dog alerted its handlers. The dog was not specifically trained to find pseudoephedrine, though, so Harris claimed that its alert could not provide the police with the probable cause necessary to conduct a warrantless search. The trial court denied Harris’ motion and the First District Court of Appeal affirmed the decision, but the Florida Supreme Court reversed it, and as such the case came to the Supreme Court.

The court decided today, in a 9-0 decision written by Justice Elena Kagan, that police did not have to prove the “reliability in the field” of a drug-sniffing dog in order to claim probable cause. The court also decided that, “a probable cause hearing for a dog alert should proceed like any other, allowing each side to make their best case with all evidence available” (from Oyez). Therefore, the outcome of Florida v. Harris serves to clarify police procedure, and to me seems like a rather “benign” decision—nobody’s rights are being egregiously infringed upon, and no outrageous precedent has been established.

However, there is the slight question of what this means for Fourth Amendment rights. As we saw last week in McNeely, police must have a warrant to perform searches and seizures; they can’t take your blood from you without one! And even though a) probable cause has been widely recognized for some time as a legitimate reason to bypass the warrant process, and b) I trust drug-sniffing dogs and their handlers, might this case have strange repercussions in the future? If the suspicions of drug-sniffing dogs are enough to bypass a warrant, what else will the Court deem acceptable for proving probable cause in the future? Probable cause can be sketchy at times, and so this decision serves to clarify one aspect of this grey area. But how often can probable cause be claimed before someone’s Foruth Amendment right of “no unreasonable search and seizure without a warrant” is actually being infringed upon? I don’t know, and I don’t have the answers. Kagan’s opinion could provide some insight, or we might just have to wait until another probable cause case comes down the pipeline.

Bailey v. United States also deals with search and seizure, making it a Fourth Amendment case, but in a somewhat different way than McNeely or Harris. In July 2005, a Suffolk County policeman obtained a warrant to search an apartment where an informant had purchased crack cocaine. The warrant stipulated that an individual known as “Polo” was living in the apartment, and when the apartment was supervised, two men were observed leaving it. Policemen followed the men, pulled them over, and patted them down. They found keys in the pocket of Chunon Bailey, handcuffed both men, and told the men that they were going to “detain,” not “arrest,” them. Once the men were in detention, police searched Bailey’s apartment, they found drugs and a gun, and thus arrested him. Upon being charged with possession of both a firearm as a felon and cocaine with the intent to distribute it, Bailey moved to suppress the evidence based on unlawful detention.  He was convicted, though, and the Second Circuit Court of Appeals upheld the conviction. The main question here is, as Oyez puts it, “Did Suffolk County police officers lawfully detain Bailey incident to the execution of a search warrant when officers saw Bailey leaving the immediate vicinity of his apartment before they executed the warrant?”

There’s a little bit more at play here—the New York trial court rejected Bailey’s motion to suppress the evidence because of the Supreme Court case Michigan v. Summers, a 1981 case which held that a “warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted” (from the decision). The problem with that line of reasoning is the fact that Bailey wasn’t actually on the premises while the search was being conducted; he was leaving the premises while the premises were being monitored. The search hadn’t yet taken place, and instead the Suffolk policemen arrested him after he had already left the premises. The Court saw this problem and agreed, in a 6 to 3 decision written (in a “truly shocking” move) by Justice Anthony Kennedy, that Bailey had been wrongfully detained. The Court also decided that, “Arrests incident to the execution of a search warrant are lawful under the Fourth Amendment, but once an individual leaves the premises being searched, any detention must be justified by another means.”

Aside from the majority opinion, Justice Antonin Scalia wrote a concurrence, which Justices Ruth Bader Ginsburg and Elena Kagan joined, that explained how this decision now gives policemen a more concrete rule to follow when detaining individuals during a search and seizure. Justice Stephen Breyer dissented, joined by Justices Clarance Thomas and Samuel Alito, saying that the majority didn’t actually take into account Fourth Amendment concerns. And that’s what we must look at now: the Fourth Amendment concerns. From a policeman’s standpoint, this decision (along with that of McNeely) is pretty awful. Bailey was clearly involved with the sale of illegal narcotics, and also illegally owned a firearm, so to see his detention dismissed on lofty, Supreme Court grounds is unfortunate. For American citizens as a whole, though, this decision is important. According to our Fourth Amendment right, as I said above, police cannot subject us to unreasonable searches and seizures without going through the proper channels. Probable cause has become an exception to that rule and is often extremely useful in solving crimes; however, the specific use of probable cause to detain a suspect as seen in Bailey violated Fourth Amendment precedent that had been set in Michigan v. Summers, and in the long run could have been damaging.

Taken as a trio, the McNeely, Harris, and Bailey cases make for a slew of Fourth Amendment clarifications. No huge changes have been made to the amendment, but within a span of two weeks certain boundaries have been set for police warrants and searches-and-seizures. I am curious as to why there has been a sudden explosion of Fourth Amendment cases—right now the nation is more focused on guns, marriage equality, and healthcare—and I think that it’s necessary to keep an eye out for more hearings of this nature if and/or when they come down the pipeline.

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