In his most recent Huffington Post piece titled Parking While Black, Prof. Bennett L. Gershman reviews a recent Circuit Court decision, United States v. Johnson, which is currently pending re-hearing at the 7th Circuit after it initially upheld the lower court’s decision. Prof. Gershman raises a fair question: “[Are the courts] about to decide if police have another legal method for harassing black citizens[?]”
In the middle of a Wisconsin winter with streets covered in snow, local Milwaukee police decided to harass a parked car with four black passengers inside after one just returned from a liquor store, citing Milwaukee parking ordinance (alleging the car was parked too close to a crosswalk), pulling all passengers out of the car, handcuffing them, searching the entire car and finding a gun as a result.
While the court’s majority sided with the government and held that the police did not violate the defendant’s Fourth Amendment rights and reasoned that police had probable cause (based on the parking ordinance) and as such “could forcibly detain the car and search the occupants,” Judge David Hamilton delivered a worth-to-read dissent, calling the police conduct “terrifying,” “outrageous,” and “extraordinary.” As Prof. Gershman points out, Judge Hamilton carried on by saying:
Imagine that the police tried that approach in Milwaukee’s affluent east side. Citizens would be up in arms, and rightly so.” … “No police officer could expect to keep his job if he treated a standing car as worthy of a [forcible] stop.”
Prof. Gershman concludes that:
The panel decision was vacated last month, and reargument has been ordered. It remains to be seen whether the entire circuit court will see it as Hamilton did or whether “parking while black” will sadly become as common a phrase as “driving while black.”
In case you didn’t have a chance to read this when it first came out, we bring to you another post by Professor Bennett L. Gershman, titled On the Death of Raynette Turner.
Prof. Gershman introduces his piece by saying,
The fifth death of a woman of color in US police custody in July. An unspeakable tragedy by itself, but arguably symbolic of the legal profession’s failure to examine the factual and logical foundation for our system of modern policing and mass incarceration.
Last week, on June 25, 2014, the U.S. Supreme Court issued a decision in Riley v. California, a decision combining California and Massachusetts cases challenging the warrantless search an arrestee’s cellphone incident to arrest. The Court unanimously concluded that the police are not entitled to search a cell phone incident to arrest without a warrant, absent exigent circumstance, and as such must seek a properly executed warrant to search a cellphone. This decision was almost instantaneously covered by a number of newspapers, reporters, and bloggers, and we bring you a short compilation of some of the online coverage.
The U.S. Supreme Court Decisions
- Riley v. California, No. 13-132 and 13-212, 2014 BL 175779, 2014 WL 2864483, 2014 U.S. LEXIS 4497 (U.S. June 25, 2014).
- Riley v. California, LII Supreme Court Bulletin.
- Riley v. California, OYEZ Project.
- Adam Gershowitz, Symposium: Surprising Unanimity, Even More Surprising Clarity, SCOTUS Blog (June 26, 2014).
Post-Decision Newspaper Articles & Blog Posts
- Kristen J. Matthews, Landmark Supreme Court Ruling Protects Cell Phones from Warrantless Searches, National Law Review (June 30, 2014).
- Marjorie Cohn, Police State America: Will the U.S. Supreme Court Apply Cell Phone Privacy to NSA Metadata Collection?, Global Research Canada (June 30, 2014).
- Orin Kerr, Initial Impressions from the Oral Argument in the Supreme Court Cell Phone Search Cases, The Washington Post (June 29, 2014).
- Bennett L. Gershman, Smartphones, Smart Ruling, HuffPost (June 27, 2014).
- William Welsh, Warrantless Cellphone Searches Illegal, Supreme Court Rules, Information Week: Government (June 26, 2014).
- Orin Kerr, Are Jones and Riley Explained by the Justices Imagining Themselves as Targets?, The Washington Post (June 26, 2014).
- Andy Greenberg, Why the Supreme Court May Finally Protect Your Privacy in the Cloud, WIRED (June 26, 2014).
- Jess Bravin, Supreme Court: Police Need Warrants to Search Cellphone Data, WSJ Online (June 25, 2014).
- Bill Mears, Supreme Court: Police Need Warrant to Search Cell Phones, CNN Justice (June 25, 2014).
- John Cassidy, The Supreme Court Gets It Right On Cell-Phone Privacy, The New Yorker (June 25, 2014).
- Orin Kerr, The Significance of Riley, The Washington Post (June 25, 2014).
- Adam Liptak, Major Ruling Shields Privacy of Cellphones: Supreme Court Says Phones Can’t Be Searched Without a Warrant, New York Times (June 25, 2014).
- Eric Posner, How Exactly Does This Court Know How Significant the Privacy Interest Is?, Slate.com (June 25, 2014).
- Damon Root, ‘Get a Warrant’: John Roberts Gives the Cops a Benchslap in Riley v. California, Hit & Run Blog (June 25, 2014).
- Robert Barnes, Supreme Court to Decide Case on Police Cellphone Searches, The Washington Post (Jan. 1, 2014).
Click here, to explore recent (2014 on) scholarly articles on the subject.
Providing compensation for wrongfully convicted individuals has been an ongoing dilemma within the United States and for governments abroad. A recent blog, Compensating Exonerees: US v. UK, by Professor Lissa Griffin of Pace Law School discusses the UK’s current struggle to articulate a standard of proof for exonerees who are seeking compensation.
- Griffin, Lissa, International Perspectives on Correcting Wrongful Convictions: The Scottish Criminal Cases Review Commission, William & Mary Bill of Rights, Vol. 21, No. 4 (2013).
- Griffin, Lissa, Correcting Injustice: Studying How the United Kingdom and the United States Review Claims of Innocence, 41 University of Toledo Law Review 107 (Fall 2009).
- Griffin, Lissa, The Correction of Wrongful Convictions: A Comparative Perspective, 16 American University International Law Review 5 (2001).
- Wrongful conviction compensation statutes, CNN U.S. (last visited March 5, 2014).
For the past forty years, the United States Supreme Court has continually tinkered with the exceptions to the Fourth Amendment’s general prohibition on warrantless searches, including the allowance of warrantless searches that are conducted after the police have obtained voluntary consent from the individual whose property is being searched. In 1974, the United States Supreme Court ruled that the Fourth Amendment recognizes a warrantless search of a premises when the police obtain the consent of an occupant who shares common authority over the property. United States v. Matlock, 415 U.S. 164, 170 (1974). Thereafter, the Court expanded its decision in Matlock to include situations where a warrantless search of a premises was conducted based upon the “consent of a third party whom the police, at the time of the entry, reasonably believe to possess common authority over the premises, but who in fact does not.” Illinois v. Rodriguez, 497 U.S. 177, 186 (1990). In 2006, the Court again modified its prior decisions on this issue, ruling that the consent of one co-occupant was insufficient to authorize police to conduct a warrantless search of a premises if another objecting occupant was “physically present” at the time. Georgia v. Randolph, 547 U.S. 103 (2006).
On Tuesday, the Court decided to rework its decision in Randolph, and severely limit its future application. In Fernandez v. California, the Court held that the rule set forth in Randolf was “extremely narrow,” and does not apply to situations when the police have received consent from one co-occupant after the objecting occupant had been removed from the premises. The Court explained that the co-occupant’s initial objection to the police’s entry is not everlasting, and can be overridden by the consent of a co-occupant after the objecting party is no longer present. Notably, the Court held that the consent of a co-occupant will authorize a search even when the objecting party has been removed from the premises involuntarily, including when removal occurs as a result of police conduct. The Court explained that searches occurring after the police have removed the objector will be permissible so long as the reason for removing the occupant was “objectively reasonable.” In Fernandez, the police had removed the objecting co-occupant after he was suspected of being involved in a robbery and believed to have battered his girlfriend moments before the police had arrived. Several hours later, the police returned to the residence and conducted a warrantless search of the premises based upon the girlfriend’s consent.
Three members of the Court (Justices Ginsburg, Sotomayor, & Kagan) disagreed with the majority’s decision, noting that “[i]n its zeal to diminish Randolph, today’s decision overlooks the warrant requirement’s venerable role as the “bulwark of Fourth Amendment protection.” They explained that “[r]educing Randolph to a “narrow exception,” the Court declares the main rule to be that “consent by one resident of jointly occupied premises is generally sufficient to justify a warrantless search. Such a declaration “has it backwards, for consent searches themselves are a “`jealously and carefully drawn’ exception” to “the Fourth Amendment rule ordinarily prohibiting the warrantless entry of a person’s house as unreasonable per se.” (citations omitted).