American Policing Goes to the Supreme Court

In the new term, which starts Monday, the justices will hear cases on digital privacy, qualified immunity, and other major criminal-justice issues.

A police officer stands outside the U.S. Supreme Court building
A police officer stands outside the U.S. Supreme Court building (Yuri Gripas / Reuters)

The U.S. Supreme Court is back in more ways than one. Monday marks the first time in two years that nine justices have started a new term, and the Court has a full slate of high-profile cases to resolve. In addition to hearing arguments on LGBT rights and organized labor, the Court will weigh in on several major criminal-justice issues, from digital privacy and vehicle searches to qualified immunity and plea bargains. And like a fresh instrument joining a familiar orchestra, the newest justice could change the tune of those around him on these subjects.

“I’ve been kind of bored the last couple terms because there really hasn’t been that much unpredictably new and exciting,” Douglas Berman, an Ohio State University law professor who studies criminal sentencing, told me. “The patterns were fairly well-established; we know where people are voting.”

This term will be different. It’s the first full one to include Justice Neil Gorsuch, who took his seat in April, midway through the 2016-2017 term and far too late to have any significant sway in its direction. The justices saw fewer marquee cases than in years past, largely because the eight-member Court had avoided major legal issues where it might reach a 4-4 deadlock.

On most issues, Gorsuch is expected to be a reliable conservative vote like the man he replaced, Antonin Scalia, who died in February 2016. But Scalia brought a sometimes unpredictable approach to criminal-justice cases, making it hard to forecast how Gorsuch could change the Court’s dynamic there. In more than a few Fourth Amendment cases, for example, the firebrand Scalia sided with the Court’s liberal wing in favor of stronger restrictions on searches and seizures. It’s unclear whether his successor will follow suit.

Here, a breakdown of the five criminal-justice cases that are already on the docket—and a couple more that could be added in the months ahead.

When Can Cops Access Cellphone Location Data?

None of the cases loom larger than Carpenter v. United States, a long-awaited showdown on digital privacy and the Fourth Amendment. Police arrested the titular defendant, Timothy Carpenter, and his associates for allegedly robbing electronics stores in Michigan and Ohio in 2011. To build the case against them, federal prosecutors obtained historical cellphone location records from telecommunications companies. These records, compiled from the phones’ interactions with cell towers, allowed investigators to recreate the digital footprints of Carpenter’s device, and presumably his real-life footprints with it.

The catch: Officers didn’t get a warrant first, relying instead on a provision in the federal Stored Communications Act that only requires them to have a reasonable suspicion that a crime has taken place—a lower threshold than is usually needed for searches. The records they obtained placed Carpenter near the scene of some of the robberies when they occurred. At trial, he sought to exclude that evidence because it had been obtained without a warrant.

Lower courts disagreed, citing what’s known as the third-party doctrine to uphold the records search. The doctrine states that Americans have no expectation of privacy when they share data with a third party, and therefore the Fourth Amendment’s typical restrictions on searches and seizures don’t apply. Its origins date back to Smith v. Maryland, a 1976 case in which the Court upheld the use of a pen register—an old surveillance device that tracked a phone’s outgoing numbers—because the suspect freely volunteered those numbers to phone companies to make calls.

But technology has slightly changed since then. Elizabeth Joh, a University of California, Davis, law professor who studies policing and surveillance, told me most people don’t realize the data they create when using everyday devices could someday be used against them by law enforcement. In fact, they probably don’t know much about their data at all. “Number one, we’re not really aware most of the time how much information we’re providing to these third parties,” Joh said. “And number two, it’s really hard to think of that as a voluntary act, because frankly it’s impossible to live a normal life without providing this kind of locational information.”

Nevertheless, the doctrine is still a core part of Fourth Amendment case law, even as phones became mobile supercomputers over the past 15 years. This incongruity hasn’t gone unnoticed by scholars and judges. In United States v. Jones, a 2012 case in which the Court ruled that warrantless GPS tracking violates the Fourth Amendment, Justice Sonia Sotomayor wrote in a concurrence that the doctrine was “ill-suited” for modern life.

Whatever ruling the Court hands down in the case will shape the legal implications of new technologies for years to come. Carpenter revolves around cellphones, but in a digital age where even coffeemakers and alarm clocks can swap data with their manufacturers, its implications will be vast. Joh pointed to the autonomous car, which is under development in Silicon Valley and could be in mass production in the next decade.

“When you think about it, that’s just another giant, quasi-voluntary transmission of information you’re going to be providing to Tesla or whatever company,” she said. “Is that going to be a case where the police will say, ‘Well, we don’t need a warrant because the driver decided to give all that information to Tesla or another carmaker?’” The Court’s ruling in Carpenter, she added, “will provide an answer, one way or another, to what I think is going to be a very important question.”

When Can Cops Search a Person’s Car?

The Court added two more Fourth Amendment cases in its first orders of the new term on Thursday, both of which involve automobile searches. Generally speaking, courts have long ruled that drivers have a reduced expectation of privacy when they’re traveling by car. As a result, officers typically don’t need a warrant to execute a search of a car so long as they have probable cause to believe it contains evidence of a crime. The Supreme Court traditionally interprets “automobile” to broadly include vehicles like trucks, motor homes, motorcycles, and so forth.

In Collins v. Virginia, the Court will ponder whether the automobile exception applies to an unoccupied vehicle parked in a person’s driveway. An officer in Virginia approached the house of petitioner Ryan Collins’s girlfriend in 2013 while investigating a motorcyclist who’d eluded him and his partner in two high-speed chases. They believed Collins to be responsible. Sitting in the driveway behind a car they saw a motorcycle covered by a tarp. The officer walked onto the property, lifted the tarp, and ran the vehicle identification number, which matched that of a stolen bike from New York.

Officers then arrested Collins for possessing stolen goods. At trial, he asked the court to suppress evidence taken during the officer’s trespass onto the property, arguing it went beyond the automobile exception’s limits. The trial court, the Virginia Court of Appeals, and the Virginia Supreme Court all disagreed with the request and ruled that the exception applies on private property. If the U.S. Supreme Court follows that pattern, it would give police officers broader leeway to search cars, trucks, and other vehicles on private property for evidence of a crime.

The other automobile-related case, Byrd v. United States, explores whether a driver has a reasonable expectation of privacy in a rental car when they’re not the one who rented it. After Terrence Byrd’s girlfriend rented a car for him in 2014, he was pulled over in Pennsylvania for driving suspiciously. State troopers searched his car without a warrant and found heroin and body armor in the trunk. The Third Circuit, which covers Pennsylvania, rejected the argument and ruled he had no expectation of privacy because he wasn’t a listed driver. Other federal courts have reached the opposite conclusion in similar cases, creating an incongruity that the Supreme Court will have to resolve.

When Can a Person Sue the Police?

The Court will also tackle when police officers can lawfully make arrests in District of Columbia v. Welby. The city government is appealing lower-court rulings against its police officers for a series of arrests they made at a house party in 2008. Neighbors had alerted police to a vacant house where they found more than two dozen people loudly partying. The house itself lacked furnishings or any other signs of habitation, but partygoers told them they had been invited by a new resident known only to them as “Peaches,” who wasn’t there. The officers were skeptical and investigated further.

When they contacted the property’s owner, he told them nobody had permission to be inside. Those present insisted they thought “Peaches” rightfully lived there. Twenty-one were arrested, and after prosecutors declined to bring charges, 16 of them sued the police department. Both the district court and the D.C. Circuit Court of Appeals sided with the partygoers, who argued the police didn’t have probable cause to detain them. The courts ruled that the officers were liable for the unlawful arrest because D.C. law had long required proof that trespassers knew they were doing so against an owner’s will.

At first glance, it might seem strange for the Court to involve itself in the minutiae of a local trespassing case. But the justices will have to delve into an increasingly controversial legal issue along the way in Welby: qualified immunity. Government officials—including police officers—are generally immune from personal lawsuits for acts they commit while on the job, but there’s an exception if they violate a person’s civil rights in the course of their official duties.

Qualified immunity is an exception to that exception: If the official’s actions didn’t violate “clearly established” law or policy at the time, they are still immune from being sued in a personal capacity. More often than not, that threshold favors the officials instead of those whose rights may have been violated. Years of Supreme Court precedents have bolstered the doctrine to the point where some legal experts now believe it’s far too difficult for Americans to seek redress for official wrongdoing.

But a glimmer of light emerged last term for qualified-immunity critics. In Ziglar v. Abbasi, a labyrinthine case on post-9/11 detention of non-citizens, Justice Clarence Thomas wrote a concurring opinion wondering aloud whether the Court’s qualified-immunity jurisprudence should be revisited. Among the articles he cited was an influential analysis by University of Chicago law professor William Baude, who argued the doctrine lacked historical or statutory foundations and that the Court “ought to be beating a retreat” away from it. The ACLU filed an amicus brief in Welby raising similar concerns, making it the first case to test whether Thomas and his colleagues will heed Baude’s advice.

Can Defendants Who Plead Guilty Challenge Their Sentences?

Finally, in Class v. United States, the justices will ponder an unusual legal question: If a defendant pleads guilty to a crime, does he or she lose the right to challenge that crime’s constitutionality? Bringing the case before the Court is Rodney Class, a retired veteran who parked his Jeep within the outer limits of the U.S. Capitol grounds without realizing it in 2013.

When Class returned to his parking spot after visiting House and Senate buildings, he discovered a group of Capitol Police officers scrutinizing his vehicle because it lacked the proper parking permit. Officers said he told them he was a “constitutional bounty hunter” and a “private attorney general” who hoped to enforce federal law against federal judges he believed violated the Constitution. During the encounter, he informed the officers that he had three lawfully owned firearms securely stored in the Jeep out of sight. Capitol Police then arrested him for bringing weapons onto the grounds, which is a federal offense.

Class, who mostly represented himself, initially argued in court that his arrest violated the Second Amendment and that he hadn’t been properly notified that guns were forbidden in the parking lot. The court rejected both arguments. After the judge issued a bench warrant against Class for failing to appear at a hearing, he made a deal with prosecutors to plead guilty to the original charges in exchange for them dropping the failure-to-appear charge. He then asked the D.C. Circuit to overturn the sentence on the same grounds as before. The appellate court rejected his claims by ruling that Class had waived his right to challenge his arrest when he accepted a plea agreement.

What makes Class’s case significant is the central role of the plea bargain in the modern American criminal-justice system. The courtroom trials of film and television are largely vanished, with deals between prosecutors and those they prosecute replacing them. At least 95 percent of federal criminal cases are resolved through plea agreements; experts believe the rate is similar in the 50 states as well. How the Supreme Court resolves this case could potentially impact how plea bargains are crafted throughout the country.

What Else Could the Justices Soon Consider?

In addition to the criminal-justice cases the Court has already agreed to hear, there’s always the chance that it could add more to its docket as the term progresses. Berman, the Ohio State University law professor, said one area he expects the justices to revisit soon is post-conviction restrictions on sex offenders, which can affect their housing, employment, and travel. Courts typically give such constraints broad latitude. But in Packingham v. North Carolina earlier this year, the Court overturned a state law that forbid people convicted of sex-related crimes from using social-media websites on First Amendment grounds.

“Especially in wake of Packingham seemingly getting the entire Court comfortable saying, ‘This is the state just going too far to restrict the lives of sex offenders after their convictions,’ there’s a perhaps justifiable hope [among advocates] that the Court might want to follow up on that and take a hard look at some of these other kinds of restrictions,” he said.

He pointed to two cases currently pending before the Court. In Snyder v. Doe, the Sixth Circuit struck down a series of new limits for some people on Michigan’s sex-offender registry. Applying those changes retroactively, the court reasoned, violated the Constitution’s ban on ex post facto punishments. Michigan asked the Supreme Court to intervene last December, although it hasn’t yet said whether it will. The justices took the rare step of asking the U.S. solicitor general to weigh in on the matter while they mull whether to take it up.

The other case worth watching for, Berman said, is Karsjens v. Piper. The lawsuit challenges Minnesota’s civil-commitment scheme for sex offenders, which it enacted in 1994. Since then, the law has indefinitely confined more than 700 people in psychiatric facilities, allowing Minnesota to keep them in custody long after their prison sentences have ended. A federal district-court judge declared the law unconstitutional in 2015 because it didn’t offer the inmates a reasonable chance of release, but the Eighth Circuit reversed the ruling. The inmates asked the Supreme Court to reinstate the original decision over the summer. Agreeing to hear either of those cases would add an emotionally charged subject to an already blockbuster term for criminal-justice cases.