Amicus Curiae Brief — David Zachary Morgan, Petitioner v. Washington

No. 19-494

IN THE

Supreme Court of the United States

————

DAVID ZACHERY MORGAN,

Petitioner,

v.

STATE OF WASHINGTON,

Respondent.

————

On Petition for a Writ of Certiorari to the

Supreme Court of Washington

————

BRIEF OF PROFESSORS BROOKS HOLLAND

AND BENJAMIN LEVIN AS AMICI CURIAE

IN SUPPORT OF PETITIONER

————



LEONID GRINBERG

MOLOLAMKEN LLP

430 Park Avenue

New York, New York 10022

(212) 607-8160

ROBERT K. KRY

Counsel of Record

CALEB HAYES-DEATS

MOLOLAMKEN LLP

The Watergate, Suite 660

600 New Hampshire Ave., N.W.

Washington, D.C. 20037

(202) 556-2000

rkry@mololamken.com

Counsel for Amici Curiae

:,/621(3(635,17,1*&2,1&±  ±:$6+,1*721'&

TABLE OF CONTENTS

Page

Interest of Amici Curiae ............................................

1

Reasons for Granting the Petition ............................

2

I. The Supreme Court of Washington’s

Decision Expands the Plain-View

Exception Beyond Its Traditional

Bounds ..............................................................

4

II. The Supreme Court of Washington’s

Interpretation of the Plain-View

Exception Undermines the Constitution’s

Requirement That a Warrant

“Particularly” Describe the “Things To

Be Seized” .........................................................

7

III. The Interpretation of the Plain-View

Exception Below Incentivizes

Warrantless Seizures by Subjecting

Them to the Same Standard Officers

Would Need To Satisfy To Obtain a

Warrant............................................................. 11

A. Officers Have Strong Incentives To

Postpone Proof of Probable Cause

Until a Suppression Hearing ................... 12

B. Offsetting Consequences Will Not

Adequately Deter Police Officers

from Deferring Proof of Probable

Cause Until a Suppression Hearing ....... 15

IV. The Supreme Court of Washington’s

Interpretation of the Plain-View

Exception Untethers It from Its

Constitutional Foundation ............................. 17

Conclusion ..................................................................... 20

(i)

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Agnello v. United States,

269 U.S. 20 (1925)..............................................

2

Arizona v. Gant,

556 U.S. 332 (2009).................................. 14, 18, 19

Arizona v. Hicks,

480 U.S. 321 (1987)...................................... 4, 6, 17

Ashcroft v. al-Kidd,

563 U.S. 731 (2011)............................................ 16

Beck v. Ohio,

379 U.S. 89 (1964)........................................... 13, 15

Carpenter v. United States,

138 S. Ct. 2206 (2018) ....................................... 7, 9

Collins v. Virginia,

138 S. Ct. 1663 (2018) .................................... 17, 18

Coolidge v. New Hampshire,

403 U.S. 443 (1971)................................. 3, 4, 10, 19

Florida v. Bostick,

501 U.S. 429 (1991)............................................ 12

Florida v. Jardines,

569 U.S. 1 (2013)................................................

9

Groh v. Ramirez,

540 U.S. 551 (2004)............................................

7

Heck v. Humphrey,

512 U.S. 477 (1994)............................................ 16

Horton v. California,

496 U.S. 128 (1990)............................................ 4, 8

Illinois v. Gates,

462 U.S. 213 (1983)............................................

6

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Katz v. United States,

389 U.S. 347 (1967)...................................... passim

Marron v. United States,

275 U.S. 192 (1927)............................................ 10

Maryland v. Pringle,

540 U.S. 366 (2003)............................................

3

Mich. Dep’t of State Police v. Sitz,

496 U.S. 444 (1990)............................................ 12

Minnesota v. Dickerson,

508 U.S. 366 (1993).................................. 4, 5, 6, 17

Missouri v. McNeely,

569 U.S. 141 (2013)............................................ 12

Mitchell v. Wisconsin,

139 S. Ct. 2525 (2019) ....................................... 12

Ornelas v. United States,

517 U.S. 690 (1996).................................... 6, 11, 20

Pearson v. Callahan,

555 U.S. 223 (2009)............................................ 16

People v. Swietlicki,

361 P.3d 411 (Colo. 2015) ................................. 5, 8

Riley v. California,

573 U.S. 373 (2014).......................................... 7, 19

South Dakota v. Opperman,

428 U.S. 364 (1976)............................................ 18

Sprint Commc’ns v. Jacobs,

571 U.S. 69 (2013).............................................. 16

State v. Hudson,

874 P.2d 160 (Wash. 1994) ...............................

2

State v. Morgan,

440 P.3d 136 (Wash. 2019) ......................... passim

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Szajer v. City of Los Angeles,

632 F.3d 607 (9th Cir. 2011).............................

Thornton v. United States,

541 U.S. 615 (2004)............................................

United States v. Chadwick,

433 U.S. 1 (1977)................................................

United States v. Edwards,

415 U.S. 800 (1974)............................................

United States v. Jacobsen,

466 U.S. 109 (1984)............................................

United States v. Jones,

565 U.S. 400 (2012)............................................

United States v. McLaughlin,

170 F.3d 889 (9th Cir. 1999).............................

United States v. Robinson,

414 U.S. 218 (1973)............................................

Wong Sun v. United States,

371 U.S. 471 (1963)............................................

Ybarra v. Illinois,

444 U.S. 85 (1979)..............................................

Younger v. Harris,

401 U.S. 37 (1971)..............................................

16

19

7

4

9

9

19

18

2

3

16

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV .................................. 3, 7, 8, 9

OTHER AUTHORITIES

Oren Bar-Gill & Barry Friedman,

Taking Warrants Seriously,

106 Nw. L. Rev. 1609 (2012) ............ 13, 15, 16, 17

v

TABLE OF AUTHORITIES—Continued

Page(s)

Jonathan Baron & John C. Hershey,

Outcome Bias in Decision

Evaluation, 54 J. Personality

& Soc. Psychol. 569 (1988) ............................... 14

Maureen E. Brady, The Lost “Effects” of the

Fourth Amendment, 125 Yale L.J. 946

(2016) .................................................................. 10

Bernard Chao et al., Why Courts Fail To

Protect Privacy: Race, Age, Bias, and

Technology, 106 Cal. L. Rev. 263 (2018) ........ 14

Lee Epstein, Some Thoughts on the Study of

Judicial Behavior, 57 Wm. & Mary L.

Rev. 2017 (2017) ................................................ 14

Nancy Leong, Making Rights, 92 B.U. L.

Rev. 405 (2012) ............................................... 16, 17

Jeffrey J. Rachlinski, A Positive

Psychological Theory of Judging in

Hindsight, 65 U. Chi. L. Rev. 571 (1998) ...... 14

Joanna C. Schwartz, The Case Against

Qualified Immunity, 93 Notre Dame L.

Rev. 1797 (2018) ................................................ 16

Christopher Slobogin & Josheph E.

Schumacher, Reasonable Expectations

of Privacy and Autonomy in Fourth

Amendment Cases: An Empirical Look

at “Understandings Recognized and

Permitted by Society,” 42 Duke L.J. 727

(1993) ............................................................... 12, 13

William J. Stuntz, Warrants & Fourth

Amendment Remedies, 77 Va. L. Rev. 881

(1991) .................................................................. 13

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Andrew J. Wistrich, Chris Guthrie & Jeffrey

J. Rachlinski, Can Judges Ignore

Inadmissible Information? The

Difficulty of Deliberately Disregarding,

153 U. Penn. L. Rev. 1251 (2005) ....................

14

INTEREST OF AMICI CURIAE 1

Amici curiae are law professors who have a vital interest in the sound development of Fourth Amendment

law, including the plain-view exception. Each teaches

and resides in a state that has adopted the expansive interpretation of the plain-view doctrine that the petition

challenges.

Brooks Holland is a Professor of Law and J. Donald

and Va Lena Scarpelli Curran Faculty Chair in Legal

Ethics and Professionalism at Gonzaga University School

of Law. He also represented indigent criminal defendants in New York City for eleven years, first with the

Legal Aid Society’s Criminal Defense Division, and then

with the New York County Defenders. Even after joining the academy, he has continued to represent indigent

criminal defendants in the United States Court of Appeals for the Ninth Circuit as a member of the Criminal

Justice Act Panel. In Professor Holland’s experience, the

plain-view doctrine has proven central to the outcome of

a significant percentage of the search and seizure issues

he has litigated in both trial and appellate courts.

Benjamin Levin is an Associate Professor of Law at

University of Colorado Law School. Before entering the

academy, he represented plaintiffs in civil rights suits

arising from police misconduct and wrongful convictions.

His scholarship focuses on how laws and institutions

shape the power wielded by both police officers and prosecutors, and the potential for abuse of that power.

1

No counsel for a party authored this brief in whole or in part, no

such counsel or party made a monetary contribution intended to

fund the preparation or submission of the brief, and no person other

than amici curiae or their counsel made such a monetary contribution. All counsel of record received timely notice of amici curiae’s

intent to file this brief, and all parties have consented to the filing.

2

Professors Holland and Levin regularly teach courses

related to criminal law and procedure. They share an interest in preserving the protections afforded by the

Fourth Amendment. They regard the Supreme Court of

Washington’s decision—and the expansive interpretation

of the plain-view exception it adopted—as a significant

erosion of those protections. They thus urge this Court

to grant the petition and restore the full scope of Fourth

Amendment protections in Washington, Colorado, and

any other State that may adopt the same, erroneous rule.

REASONS FOR GRANTING THE PETITION

The Fourth Amendment provides that “no warrants

shall issue, but upon probable cause, supported by oath

or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.” That

constitutional requirement ensures that the “deliberate,

impartial judgment of a judicial officer” will “be interposed between the citizen and the police.” Katz v. United

States, 389 U.S. 347, 357 (1967) (quoting Wong Sun v.

United States, 371 U.S. 471, 481-482 (1963)). It has frequently led this Court to invalidate warrantless searches

and seizures “notwithstanding facts unquestionably

showing probable cause.” Ibid. (quoting Agnello v. United States, 269 U.S. 20, 33 (1925)).

In this case, however, the Supreme Court of Washington upheld a warrantless search based only upon a showing of probable cause. It ruled that police officers can

seize evidence under the plain-view exception when they

“ ‘reasonably conclude’ that the subject evidence is associated with a crime.” State v. Morgan, 440 P.3d 136, 139

(Wash. 2019) (quoting State v. Hudson, 874 P.2d 160, 166

(Wash. 1994)). That approach effectively reduces the

plain-view exception to a finding of probable cause, as the

3

dissent recognized. Id. at 141 (Madsen, J., dissenting);

see also Maryland v. Pringle, 540 U.S. 366, 371 (2003)

(“[T]he substance of all the definitions of probable cause

is a reasonable ground for belief of guilt.” (quoting

Ybarra v. Illinois, 444 U.S. 85, 91 (1979))). The implications are enormous, eroding both the Fourth Amendment’s warrant requirement and the protections afforded

by any warrant officers do obtain. If the plain-view exception requires only a showing of probable cause, officers will bear the same burden of proof regardless of

whether they proceed before a magistrate judge in advance of any seizure, or instead await a subsequent suppression hearing over the applicability of the plain-view

exception. Even where officers do obtain a warrant, the

Supreme Court of Washington’s interpretation of the

plain-view exception effectively transforms that warrant

into the type of general warrant the Framers abhorred,

undermining the Fourth Amendment’s requirement that

the “things to be seized” be described with particularity.

U.S. Const. amend. IV.

The correct interpretation of the plain-view exception

is an issue of critical importance. Where state courts

have previously unmoored an exception to the warrant

requirement from its constitutional foundations, this

Court has intervened, describing the exceptions as “jealously and carefully drawn.” Coolidge v. New Hampshire,

403 U.S. 443, 455 (1971). The decision below threatens to

erode the Fourth Amendment’s protections for a significant part of the country. Amici, two professors who research and teach criminal procedure in the affected

States, urge the Court to review the Supreme Court of

Washington’s decision.

4

I. THE SUPREME COURT OF WASHINGTON’S DECISION

EXPANDS THE PLAIN-VIEW EXCEPTION BEYOND ITS

TRADITIONAL BOUNDS

This Court has “repeatedly emphasized” that “the

most basic constitutional rule in this area is that searches

conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable

under the Fourth Amendment—subject only to a few

specifically established and well-delineated exceptions.”

United States v. Edwards, 415 U.S. 800, 809 (1974) (quoting Coolidge, 403 U.S. at 454-455). The plain-view exception to that basic constitutional rule is a narrow exception

that permits seizure only where (1) an officer is “lawfully

located in a place from which the object can be plainly

seen,” (2) the officer has “a lawful right of access to the

object,” and (3) the object’s “incriminating character” is

“immediately apparent.” Horton v. California, 496 U.S.

128, 136-137 (1990). The Court has grounded the plainview exception in a recognition that, where “contraband”

is plainly visible, “resort to a neutral magistrate * * *

would often be impracticable and would do little to promote the objectives of the Fourth Amendment.” Minnesota v. Dickerson, 508 U.S. 366, 375 (1993); see also Arizona v. Hicks, 480 U.S. 321, 326-327 (1987) (justifying the

exception based on “the inconvenience and the risk—to

[officers] or to preservation of evidence—of going to obtain a warrant”).

The facts of this case do not implicate the principles

underlying the plain-view exception. The seized evidence

was not “contraband,” but clothing. Dickerson, 508 U.S.

at 375. That clothing was not even visible, much less

plainly so: The officer “could not examine the clothing

without removing it from * * * plastic hospital bags.”

Morgan, 440 P.3d at 138; see also ibid. (“Officer Breault

5

did not smell gasoline or see blood through the plastic

hospital bags.”). And far from finding himself in a situation where obtaining a warrant would be “impracticable,”

Dickerson, 508 U.S. at 375, the seizing officer travelled to

the clothing, with a “crime scene technician,” for the specific purpose of collecting it, Morgan, 440 P.3d at 138.

For all of these reasons, both the trial court and the

Washington Court of Appeals rejected the State’s invocation of the plain-view exception. Pet. App. 44a-45a, 58a.

The Supreme Court of Washington reversed those decisions only by fundamentally altering the exception. It

articulated a test for the plain-view exception that focused on whether, “considering the surrounding circumstances, the police can reasonably conclude that the subject evidence is associated with a crime.” Morgan, 440

P.3d at 139. The court’s application of that test rendered

what was in “plain view” irrelevant, permitting it to conclude that the officer could “reasonably” seize the clothing “[w]ithout examining” it and without “having to see

blood or smell gasoline.” Id. at 140 & n.6. The dissent

rightly recognized that such an approach “divorces the

observations of the seizing officer from the seizure.” Id.

at 140 (Madsen, J., dissenting). If the plain-view exception does not depend on the observations, or even perceptions, of the seizing officer, the standard for seizing evidence under that exception becomes identical to the

standard for obtaining a warrant. Id. at 139-140 (majority opinion). In either circumstance, officers need only

show probable cause based on the evidence they have collectively gathered. Ibid.

The Supreme Court of Colorado has adopted a similar—and similarly expansive—view of the plain-view exception. People v. Swietlicki, 361 P.3d 411, 415-416 (Colo.

6

2015). It held that the “immediately apparent requirement of the plain-view exception means nothing more

than the police must possess probable cause without conducting a further search.” Ibid. And like the Supreme

Court of Washington, the Supreme Court of Colorado

considers the evidence available to all officers, not just

the officer who seizes the object in plain view. Id. at 416417. As the petition explains, such an interpretation of

the plain-view exception departs markedly from the one

adopted by numerous other state and federal courts. Pet.

15-20.

The interpretation accepted below cannot be reconciled with this Court’s precedents. This Court’s prior decisions emphasize that a finding of probable cause, standing alone, does not justify a warrantless search, because

the process for obtaining a warrant independently affords valuable protections. See Katz, 389 U.S. at 357

(“Searches conducted without warrants have been held

unlawful notwithstanding facts unquestionably showing

probable cause, for the Constitution requires that the deliberate, impartial judgment of a judicial officer * * * be

interposed between the citizen and the police.” (citations

omitted)); see also Ornelas v. United States, 517 U.S. 690,

699 (1996) (noting the Fourth Amendment’s “strong

preference for searches conducted pursuant to a warrant” (quoting Illinois v. Gates, 462 U.S. 213, 236 (1983))).

The Supreme Court of Washington articulated no reason

for departing from that bedrock principle in plain-view

cases generally. And it did not do so in the specific circumstances here, which raise no concern that obtaining a

warrant would be “impracticable,” Dickerson, 508 U.S. at

375, or pose any “inconvenience” or “risk,” Hicks, 480

U.S. at 327. This Court should intervene to prevent the

7

plain-view exception from eroding the Fourth Amendment protections afforded by a neutral magistrate judge.

II. THE SUPREME COURT OF WASHINGTON’S INTERPRETATION OF THE PLAIN-VIEW EXCEPTION UNDERMINES THE CONSTITUTION’S REQUIREMENT

THAT A WARRANT “PARTICULARLY” DESCRIBE THE

“THINGS TO BE SEIZED”

The decision below has profound implications for seizures both with and without a warrant. Where officers

obtain a warrant, the Supreme Court of Washington’s

decision undermines a significant limitation on the scope

of that warrant. The Fourth Amendment requires warrants to “particularly describ[e]” the “things to be

seized.” U.S. Const. amend. IV. “ The Founding generation crafted the Fourth Amendment as a response to the

reviled general warrants and writs of assistance of the

colonial era, which allowed British officers to rummage

through homes in an unrestrained search for evidence of

criminal activity.” Carpenter v. United States, 138 S. Ct.

2206, 2213 (2018) (quoting Riley v. California, 573 U.S.

373, 403 (2014)). But “the purpose of the particularity

requirement is not limited to the prevention of general

searches.” Groh v. Ramirez, 540 U.S. 551, 561 (2004). “A

particular warrant also ‘assures the individual whose

property is searched or seized of the lawful authority of

the executing officer, his need to search, and the limits of

his power to search.’ ” Ibid. (quoting United States v.

Chadwick, 433 U.S. 1, 9 (1977)).

This Court has previously interpreted the plain-view

exception to apply only where (1) an officer is “lawfully

located in a place from which an object can be plainly

seen,” (2) the officer has “a lawful right of access to the

object,” and (3) the object’s “incriminating character” is

8

“immediately apparent.” Horton, 496 U.S. at 136-137.

As described above, the Supreme Courts of Washington

and Colorado have expanded the plain-view exception by

equating the “immediately apparent” prong with a finding of probable cause. See pp. 5-6, supra; Morgan, 440

P.3d at 139; Swietlicki, 361 P.3d at 415-416 (“ ‘Immediately Apparent’ Means Probable Cause”).

That interpretation expands the scope of any warrant

by lowering the standard officers must meet to seize

property the warrant does not describe. The Court’s decision in Horton clarified that officers need not show “inadverten[ce]” to justify plain-view seizures. 496 U.S. at

138. An officer executing a warrant can seize additional

property under the plain-view exception even though she

“fully expects to find it in the course of a search.” Ibid.

If an officer need only show probable cause to justify

plain-view seizure, then a warrant to seize something

acts as a warrant to seize anything in the same location,

as long as police can ultimately portray what they seize

as suspicious.

A simple example illustrates the point. If police officers executing a warrant expect to have probable cause to

seize ten items, they can do so regardless of whether the

warrant “particularly describ[es]” all ten items, five, or

only one. U.S. Const. amend. IV. That approach disregards the Fourth Amendment’s text. It undermines the

requirement that a warrant particularly describe the

“things to be seized.” Ibid. And authorizing officers to

seize any suspicious object—regardless of whether the

seizing officer herself comprehends why it is suspicious—

resurrects the “general warrant” that the Framers “reviled,” permitting “officers to rummage through” any

place described in a warrant “in an unrestrained search

9

for evidence of criminal activity.” Carpenter, 138 S. Ct.

at 2213.

Undermining the requirement that a warrant “particularly describ[e]” the “things to be seized” offends the

property rights that underpin the Fourth Amendment’s

protections. The Fourth Amendment protects not only

privacy, but also people’s right “to be secure in their * * *

effects.” U.S. Const. amend. IV. Seizures, by definition,

cause “meaningful interference with an individual’s possessory interests in th[e] property” seized. United States

v. Jacobsen, 466 U.S. 109, 113 (1984).

This Court’s recent decisions emphasize the Fourth

Amendment’s “close connection to property.” United

States v. Jones, 565 U.S. 400, 405 (2012). In Jones, this

Court held that affixing a GPS tracking device to an individual’s property offended the Fourth Amendment because it amounted to a “classic trespassory search.” Id.

at 412. Similarly, in Florida v. Jardines, 569 U.S. 1

(2013), the Court held that the Fourth Amendment prohibited officers from gathering evidence by “physically

intruding on * * * property.” Id. at 11. It reached that

conclusion even though “background social norms [typically] invite a visitor to the front door,” the location at

issue. Id. at 9. And the Court’s concern for property

rights caused it to invalidate a search that, in other contexts, had been held not to violate a “reasonable expectation of privacy.” Id. at 10. An interpretation of the plainview exception that permits warrantless seizures of

property simply because the property could have been

described in a warrant is inconsistent with the Fourth

Amendment’s solicitude for property interests.

The Fourth Amendment’s particularity requirement

protects property rights by guaranteeing that citizens

10

receive the “deliberate, impartial judgment of a judicial

officer” for each item of property police officers seize.

Katz, 389 U.S. at 357. It “prevents the seizure of one

thing under a warrant describing another,” and ensures

that “nothing is left to the discretion of the officer executing the warrant.” Marron v. United States, 275 U.S. 192,

196 (1927); cf. Coolidge, 403 U.S. at 471 (plurality opinion)

(“If the initial intrusion is bottomed upon a warrant that

fails to mention a particular object, though the police

know its location and intend to seize it, then there is a

violation of the express constitutional requirement of

‘Warrants * * * particularly describing * * * (the) things

to be seized.’ ”). The requirement has its roots in founding-era concerns about the protection of personal property and common-law actions for conversion and trespass

to chattels. See Maureen E. Brady, The Lost “Effects” of

the Fourth Amendment, 125 Yale L.J. 946, 987-994

(2016). These principles foreclose any broad grant of authority to seize property that, although not described in

the warrant, is seen by officers and regarded as suspicious. But that is precisely what the Supreme Court of

Washington interpreted the plain-view exception to provide when it equated the “immediately apparent” prong

with a finding of probable cause.

The Fourth Amendment’s text—and this Court’s interpretation of it—forbids the approach adopted by the

Supreme Court of Washington. It requires the “deliberate, impartial judgment of a judicial officer” for each item

to be seized, and it invalidates warrantless seizures notwithstanding officers’ subsequent ability to adduce “facts

unquestionably showing probable cause.” Katz, 389 U.S.

at 357. The Court should grant the petition and reaffirm

those longstanding principles.

11

III. THE INTERPRETATION OF THE PLAIN-VIEW EXCEPTION BELOW INCENTIVIZES WARRANTLESS

SEIZURES BY SUBJECTING THEM TO THE SAME

STANDARD OFFICERS WOULD NEED TO SATISFY TO

OBTAIN A WARRANT

The decision below threatens to sharply increase the

number of warrantless seizures under the plain-view exception. It gives officers a choice: prove probable cause

to a magistrate judge before seizure, as the Constitution

requires, or prove it during a subsequent suppression

hearing. Under the decision below, officers will almost

always elect a suppression hearing. They have strong

incentives to avoid the delay and formality of obtaining a

warrant, to advance their investigation, and to defer a

demonstration of probable cause until after they have

gathered additional evidence. The countervailing factors

on which courts rely to deter unjustified searches, in contrast, will have little effect.

This Court has warned that applying the same standard to searches with and without a warrant will undermine officers’ incentives to seek a warrant. In Ornelas v.

United States, 517 U.S. 690 (1996), the Court rejected a

Seventh Circuit rule that gave the same deference to

“warrantless searches” as to a magistrate judge’s “decision to issue a warrant.” Id. at 698. Police officers, the

Court explained, “are more likely to use the warrant process if the scrutiny applied to a magistrate’s probablecause determination to issue a warrant is less than that

for warrantless searches.” Id. at 699. The Seventh Circuit’s rule “would eliminate the incentive,” and thus disserve the Fourth Amendment’s “strong preference for

searches conducted pursuant to a warrant.” Ibid. The

same is true here.

12

A. Officers Have Strong Incentives To Postpone

Proof of Probable Cause Until a Suppression

Hearing

Officers have strong incentives to undertake warrantless searches. The decision below multiplies their opportunities to do so. Whenever officers believe that they can

attain a lawful right of access to potential evidence, the

decision below permits them to decide whether to attempt to prove probable cause to a magistrate judge before seizure, or instead at a suppression hearing.

Faced with that choice, officers have powerful incentives to seize first and justify later. Officers want to advance their investigation, preserve potential evidence,

and disrupt what they suspect is illegal activity. Obtaining a warrant delays that process. “Warrants inevitably

take some time for police officers or prosecutors to complete and for magistrate judges to review.” Missouri v.

McNeely, 569 U.S. 141, 155 (2013); see also Mitchell v.

Wisconsin, 139 S. Ct. 2525, 2539 (2019).

Officers may also enjoy structural advantages at a

suppression hearing, leading them to conclude that they

have a better chance of establishing probable cause if

they seize under the plain-view exception before proving

probable cause. The Court’s Fourth Amendment jurisprudence judges the reasonableness of a search or seizure from the perspective of an “innocent person.” Florida v. Bostick, 501 U.S. 429, 438 (1991); see also Mich.

Dep’t of State Police v. Sitz, 496 U.S. 444, 452 (1990)

(considering “fear and surprise engendered in lawabiding motorists”). By the time of a suppression hearing, the defendant may seem anything but innocent. See

Christopher Slobogin & Joseph E. Schumacher, Reasonable Expectations of Privacy and Autonomy in Fourth

13

Amendment Cases: An Empirical Look at “Understandings Recognized and Permitted by Society,” 42 Duke

L.J. 727, 771 (1993) (“The typical Fourth Amendment

case involves a clearly guilty person, often charged with a

serious crime, whose only argument at a pretrial suppression hearing or on appeal is that the evidence against

him was illegally seized.”). A judge evaluating probable

cause thus balances abstract privacy and property interests against the palpable cost of freeing an incriminated

defendant. See Oren Bar-Gill & Barry Friedman, Taking Warrants Seriously, 106 Nw. L. Rev. 1609, 1623

(2012) (“[T]he exclusionary rule rubs our faces in the

costs of the Fourth Amendment.”).

This Court has contrasted “the safeguards provided

by an objective predetermination of probable cause” with

the “far less reliable procedure of an after-the-event justification for the arrest or search, too likely to be subtly

influenced by the familiar shortcomings of hindsight

judgment.” Beck v. Ohio, 379 U.S. 89, 96 (1964); see also

William J. Stuntz, Warrants & Fourth Amendment

Remedies, 77 Va. L. Rev. 881, 915 (1991) (“Warrants attack distortions that come with the suppression hearing

by changing the timing of the relevant decision. A magistrate grants or denies a warrant application before he

knows whether the police will find the evidence, or

whether the suspect is a criminal.”). Social science confirms the importance of that contrast. By the time of a

suppression hearing, the outcome of any seizure under

the plain-view exception will be known. That knowledge

threatens to trigger two types of psychological bias, both

of which increase the likelihood of a finding of probable

cause.

14

First, hindsight bias may lead an adjudicator to exaggerate the ex ante probability that the “subject evidence

[wa]s associated with a crime.” Morgan, 440 P.3d at 139;

see Jeffrey J. Rachlinski, A Positive Psychological Theory of Judging in Hindsight, 65 U. Chi. L. Rev. 571, 577581 (1998). Most, but not all, studies of judicial behavior

have found that judges exhibit hindsight bias. See Lee

Epstein, Some Thoughts on the Study of Judicial Behavior, 57 Wm. & Mary L. Rev. 2017, 2071 (2017) (“[S]tudies

have documented that judges respond more favorably to

litigants they like or with whom they sympathize * * *

and fall prey to hindsight bias when assessing probable

cause.”); Bernard Chao et al., Why Courts Fail To Protect Privacy: Race, Age, Bias, and Technology, 106 Cal.

L. Rev. 263, 283-285 (2018) (collecting studies).2

Second, and relatedly, knowledge of the outcome affects the assessment of not only the decision to seize, but

also the decision-maker. Where an officer has in fact

seized incriminating evidence, outcome bias may enhance

an adjudicator’s estimation of that officer’s decisionmaking. See Jonathan Baron & John C. Hershey, Outcome Bias in Decision Evaluation, 54 J. Personality &

Soc. Psychol. 569, 571-574 (1988). Thus, a finding of incriminating evidence likely renders judges more inclined

to conclude that officers acted appropriately and accommodated reasonable expectations of privacy.

Officers do not need to study social science to appreciate the fundamental point. Demonstrating probable

2

But cf. Andrew J. Wistrich, Chris Guthrie & Jeffrey J. Rachlinski,

Can Judges Ignore Inadmissible Information? The Difficulty of

Deliberately Disregarding, 153 U. Penn. L. Rev. 1251, 1316 (2005)

(observing a slight, but statistically insignificant, increase in findings

of probable cause based on hindsight).

15

cause is easier after an investigation is complete, officers

have found evidence of crime, and the costs of protecting

Fourth Amendment rights are magnified. By applying

the same standard to requests for a warrant and to warrantless seizures under the plain-view exception, the decision below undermines officers’ incentives to obtain a

warrant. Any officer who expects to have lawful access to

potential evidence can seize first under the plain-view exception and defer proof of probable cause until later.

That approach is inconsistent with the Fourth Amendment’s emphatic preference for the “objective predetermination of probable cause,” Beck, 379 U.S. at 96, that

occurs when the “deliberate, impartial judgment of a judicial officer” is “interposed between the citizen and the

police,” Katz, 389 U.S. at 357.

B. Offsetting Consequences Will Not Adequately

Deter Police Officers from Deferring Proof of

Probable Cause Until a Suppression Hearing

The tools on which courts typically rely to deter unjustified searches—the exclusionary rule and private suits—

will not offset the impact of the decision below. Officers

seizing under the expansive interpretation of the plainview exception adopted below will rarely fear the exclusion of evidence. If they fail to demonstrate probable

cause at a suppression hearing, despite having the benefit of additional time and information, they almost certainly could not have obtained a warrant in the first

place. And officers will confront the exclusionary rule in

only a small percentage of cases. See Bar-Gill & Friedman, supra, at 1622-1626 (“[F]or the most part courts

only consider police conduct in cases in which that conduct paid off.”). If evidence seized under the plain-view

exception does not ultimately advance the case, officers

can ignore it. Indeed, that appears to have occurred in

16

petitioner’s case: Officers seized petitioner’s cell phone,

but never sought to admit it, thereby mooting any application of the exclusionary rule. Pet. 7 n.2.

Neither will the threat of private liability meaningfully

offset the incentive the decision below creates to undertake warrantless seizures under the plain-view exception.

Individuals whose property is seized generally cannot

bring a private suit to enforce their Fourth Amendment

rights for some time. Absent exceptional circumstances,

federal courts abstain from hearing private suits that

challenge the constitutionality of pending state criminal

proceedings. See Sprint Commc’ns v. Jacobs, 571 U.S.

69, 73 (2013); Younger v. Harris, 401 U.S. 37 (1971). And

a criminal proceeding that results in a conviction bars

any private suit to enforce Fourth Amendment rights

that would have the effect of challenging that conviction.

See Heck v. Humphrey, 512 U.S. 477, 485-487 (1994);

Szajer v. City of Los Angeles, 632 F.3d 607, 611-612 (9th

Cir. 2011).

Even if a defendant prevails in a criminal proceeding,

officers are unlikely to fear liability in all but the most

egregious instances. Qualified immunity erects a high

barrier to private suits, protecting “all but the plainly incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011); see also Pearson v. Callahan, 555 U.S. 223, 243-244 (2009); Bar-Gill &

Friedman, supra, at 1629-1630; Joanna C. Schwartz, The

Case Against Qualified Immunity, 93 Notre Dame L.

Rev. 1797, 1814-1820 (2018). And if plaintiffs overcome

that defense, they still must prove damages attributable

to a temporary seizure, which “may be difficult to quantify in financial terms.” Nancy Leong, Making Rights, 92

17

B.U. L. Rev. 405, 430-432 (2012); see also Bar-Gill &

Friedman, supra, at 1628-1629.

As a result of these barriers and others, 71% of published federal appellate decisions concerning the Fourth

Amendment arise in criminal rather than civil cases.

Leong, supra, at 423. When excessive force claims are

excluded, that figure rises to 85%. Id. at 424.

IV.THE SUPREME COURT OF WASHINGTON’S INTERPRETATION OF THE PLAIN-VIEW EXCEPTION UNTETHERS IT FROM ITS CONSTITUTIONAL FOUNDATION

The Supreme Court of Washington’s interpretation of

the plain-view exception disregards the principles that

justify that exception. “The warrantless seizure of contraband that presents itself in [plain view] is deemed justified by the realization that resort to a neutral magistrate under such circumstances would often be impracticable and would do little to promote the objectives of the

Fourth Amendment.” Dickerson, 508 U.S. at 375; see

also Hicks, 480 U.S. at 326-327 (justifying the exception

based on “the inconvenience and the risk—to [officers]

and to preservation of evidence—of going to obtain a

warrant”). The Supreme Court of Washington’s decision

sweeps far more broadly, extending the exception to situations where resort to a neutral magistrate would hardly be “impracticable.” Such extension undermines the

protections of the Fourth Amendment, transforming

“what was meant to be an exception into a tool with far

broader application.” Collins v. Virginia, 138 S. Ct. 1663,

1672-1673 (2018).

This Court has intervened in other cases to restrain

expansive interpretations of exceptions to the warrant

18

requirement that disconnect the exceptions from their

original purposes.

In Collins v. Virginia, 138 S. Ct. 1663 (2018), for example, the Court considered the application of the automobile exception to the search of a vehicle parked in

front of a home. Id. at 1673. The Court had previously

explained that the automobile exception is justified by

the “inherent mobility” of vehicles and the “pervasive”

regulations that govern them. South Dakota v. Opperman, 428 U.S. 364, 367-368 (1976). Lower courts, however, applied the automobile exception to a vehicle parked

on private, residential property. Collins, 138 S. Ct. at

1669. That application threatened the “separate and substantial Fourth Amendment interest in * * * home and

curtilage.” Id. at 1672. The Court thus intervened to

clarify that the automobile exception does not “afford the

necessary lawful right of access to search a vehicle

parked within a home or its curtilage.” Ibid. A contrary

approach, the Court explained, would transform “what

was meant to be an exception into a tool with far broader

application.” Id. at 1672-1673.

In Arizona v. Gant, 556 U.S. 332 (2009), the Court

considered whether the search-incident-to-arrest exception authorized the search of a vehicle an arrestee had

recently occupied. Id. at 335. Prior decisions justified

the exception based on two considerations: (1) “the need

to disarm the suspect in order to take him into custody”;

and (2) “the need to preserve evidence on his person for

later use.” United States v. Robinson, 414 U.S. 218, 234

(1973). Lower courts, however, routinely applied the exception to vehicle searches that occurred after a driver

was arrested, causing one judge to lament that they had

“abandoned * * * constitutional moorings and floated to a

19

place where the law approves of purely exploratory

searches.” Thornton v. United States, 541 U.S. 615, 628

(2004) (Scalia, J., concurring in judgment) (quoting United States v. McLaughlin, 170 F.3d 889, 890 (9th Cir.

1999) (Trott, J., concurring)). In Gant, this Court intervened to reinstate the exception’s constitutional moorings, holding that officers can “search a vehicle incident

to a recent occupant’s arrest only if the arrestee is within

reaching distance of the passenger compartment at the

time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” 556 U.S.

at 351.

In Riley v. California, 573 U.S. 373 (2014), the Court

considered the application of the search-incident-toarrest exception to an arrestee’s cell phone. Id. at 386388. Lower courts had permitted the “warrantless

search of cell phone data incident to an arrest, so long as

the cell phone was immediately associated with the arrestee’s person.” Id. at 380. But such searches unearthed “a digital record of nearly every aspect of [arrestees’] lives—from the mundane to the intimate.” Id.

at 395. This Court found that such a broad expansion of

the search-incident-to-arrest exception would “untether

the rule from the justifications underlying it.” Id. at 386.

It thus held that the exception did not justify cell phone

searches. Ibid.

In each of these cases, the Court prevented the warrant requirement’s “jealously and carefully drawn” exceptions, Coolidge, 403 U.S. at 455, from expanding to

swallow the rule. This case presents a similar threat.

The Supreme Court of Washington’s holding permits

warrantless seizure of any visible property to which an

officer has lawful access, so long as any information

20

available to police creates probable cause. That rule creates too broad an exception to the requirement of a neutral magistrate, weakening the Fourth Amendment’s

protections for seizures both with and without a warrant.

And it does so for reasons completely divorced from concerns about impracticability, inconvenience, or risk.

This Court has repeatedly recognized that the same

legal standards should not apply to warrant applications

and warrantless seizures. It has warned that any such

equivalence would eliminate important incentives to obtain a warrant. Ornelas, 517 U.S. at 699. And it has emphasized that even facts “unquestionably showing probable cause” do not automatically justify a warrantless seizure. Katz, 389 U.S. at 357. The decision below ignores

these principles. It creates strong incentives to undertake warrantless seizures under the plain-view exception,

distorting the balance struck by prior Fourth Amendment precedent. This Court should grant the petition

and restore that balance.

CONCLUSION

The Court should grant the petition for certiorari.

Respectfully submitted.

LEONID GRINBERG

ROBERT K. KRY

MOLOLAMKEN LLP

Counsel of Record

430 Park Avenue

CALEB HAYES-DEATS

New York, New York 10022 MOLOLAMKEN LLP

(212) 607-8160

The Watergate, Suite 660

600 New Hampshire Ave., N.W.

Washington, D.C. 20037

(202) 556-2000

rkry@mololamken.com

Counsel for Amici Curiae

NOVEMBER 2019