The Lawletter Vol 43 No 4
Early in the morning on March 16, 2008, the D.C. Police received a complaint of loud music coming from a house in Northeast D.C. District of Columbia v. Wesby, 138 S. Ct. 577, 583 (2018). When officers responded to the house, they found it in a state of disarray with beer bottles and cups of liquor all over. Id. The floor was so dirty, the officers noted, "that one of the partygoers refused to sit on it while being questioned." Id. Although it had working electricity and plumbing, the house contained no furniture aside from a few folding chairs. A further inspection of the house found the living room transformed into "a makeshift strip club," and "more debauchery upstairs." Id.
While many of the 21 individuals found in the house claimed to be throwing a bachelor party, none could identify the supposed bachelor. Id. A woman identified only as "'Peaches' or 'Tasty,'" was allegedly renting the house, but when the officers attempted to contact her, "Peaches" refused to meet with police "because she was afraid of being arrested." Id. "Peaches" eventually admitted that she did not have permission to be in the house and a call to the owner confirmed this. Id. at 583-84. Based upon their investigation, the officers arrested all 21 individuals present for unlawful entry, id. at 584, although a lieutenant later decided to charge them with disorderly conduct. Id. All charges were ultimately dropped. Id.
Following the dismissal of the charges, 16 of the partygoers sued the District and officers for false arrest under 42 U.S.C. § 1983 and District law. Id. On a cross-motion for summary judgment, the trial court concluded that the officers lacked probable cause to arrest the plaintiffs for unlawful entry and that the officers were not entitled to qualified immunity. Id. On appeal, a divided panel of the D.C. Circuit Court of Appeals affirmed. Id. at 585. The Supreme Court granted certiorari on two questions: "whether the officers had probable cause to arrest the partygoers, and whether the officers were entitled to qualified immunity." Id.
With respect to the first question, the Court reiterated that probable cause depends upon the totality of the circumstances and that "it is 'a fluid concept' that is 'not readily, or even usefully, reduced to a neat set of legal rules.'" Id. at 586 (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). Turning to the facts of the case, the Court held that "[c]onsidering the totality of the circumstances, the officers made an 'entirely reasonable inference' that the partygoers were knowingly taking advantage of a vacant house as a venue for their late-night party." Id.
The Court reasoned that "[m]ost homeowners do not live in near-barren houses. And most homeowners do not invite people over to use their living room as a strip club, to have sex in their bedroom, to smoke marijuana inside, and to leave their floors filthy." Id. at 587. The partygoers' reactions to the officers' presence only heightened this conclusion with many scattering at sight of the officers and two attempting to hide. Id. "[D]eliberately furtive actions and flight at the approach of . . . law officers are strong indicia of mens rea." Id. (quoting Sibron v. New York, 392 U.S. 40, 66 (1968)). Accordingly, "[a] reasonable officer could infer that the partygoers' scattering and hiding was an indication that they knew they were not supposed to be there." Id.
The Wesby Court explained that the lower courts had engaged in "excessively technical dissection" of the facts and failed to recognize that "the whole is often greater than the sum of its parts—especially when the parts are viewed in isolation." Id. at 588. Moreover, the lower court appeared to mistakenly believe that it could dismiss circumstances that were susceptible to an innocent explanation. Id. Probable cause, however, "does not require officers to rule out a suspect's innocent explanation for suspicious facts." Id. While this probable cause determination resolved the case, the Court examined the qualified immunity question, explaining that the lower court's analysis could undermine "the values qualified immunity seeks to promote." Id. at 589.
Qualified immunity, the Court explained, protects an officer unless (1) s/he violated a federal statutory or constitutional right, and (2) the unlawfulness of the conduct was clearly established. Id. The "clearly established" standard "requires that the legal principle clearly prohibit the officer's conduct in the particular circumstances before him." Id. at 591. Taken together, qualified immunity is a "demanding standard [that] protects 'all but the plainly incompetent or those who knowingly violate the law.'" Id. at 589 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Applying this standard to the facts before it, the Court readily concluded that the officers were entitled to qualified immunity. Id. at 590.
In reaching a contrary conclusion, the lower court had reasoned that the officers needed evidence that the partygoers knew or should have known that they were entering against the will of the lawful owner and that Peaches's invitation to the other partygoers prevented such evidence. Id. at 584-85. The Court explained that this approach assumed (1) that the officers could not infer intent from other circumstances, and (2) that they could not disbelieve the partygoers' story. Id. at 591. Such an approach was not clearly established, however, with existing precedent giving "the officers reason to doubt that they had to accept the partygoers' assertion of a bona fide belief." Id. 592.
In an opinion concurring in the judgment, Justice Sotomayor disagreed with the Court's decision to reach the merits of the probable cause question given the existence of qualified immunity. Id. at 593. Justice Ginsburg also wrote separately to express her concerns about "whether this Court, in assessing probable cause, should continue to ignore why police in fact acted." Id. While agreeing that qualified immunity should apply, the Justice was concerned that existing jurisprudence "sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection." Id. at 594.
Federal courts have been quick to utilize the Wesby Court’s logic and language. In United States v. Tagg, 886 F.3d 579 (6th Cir. 2018), the district court had suppressed evidence against the defendant, finding that the materials supporting the affidavit did not provide probable cause that the defendant had actually accessed a website with the intent to view child pornography. Id. at 585. The Tagg court found such a conclusion "incorrect, particularly considering the Supreme Court's recent instructions in [Wesby]." Id. The court explained that, as the Wesby Court recently reminded, "[p]robable cause 'requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. '" Id. (citing Wesby, 138 S. Ct. at 586). Accordingly, a court reviewing the search warrant need only "ask whether the facts in the affidavit justified an officer of reasonable caution in suspecting that Tagg had accessed Playpen with the intent to view child pornography, and that evidence of that crime would be found on his home computer." Tagg, 886 F.3d at 587. Because the affidavit "unquestionably" met this standard, the search warrant was valid. Id.The court in Gonzalez v. United States, No. 16-CV-1494(KAM), 2018 WL 1597384 (E.D.N.Y. Mar. 31, 2018), applied Wesby to a case challenging the probable cause of a warrant on which Gonzalez was detained given that the statute of limitations for the underlying offense had run. Id. at *11. Finding this argument unpersuasive, the Gonzalez court noted that criminal statute of limitations is a waivable affirmative defense. Id. As a result, "the running of the statute of limitations is not dispositive of, and of little, if any, relevance to, the existence of 'a probability or substantial chance of criminal activity, ' which, to reiterate, 'is not a high bar. '" Id. (quoting Wesby, 138 S. Ct. at 586).