Supreme Court Update: U.S. v. Jones (10-1259), Reynolds v. U.S. (10-6549), National Meat Association v. Harris (10-224) and Ryburn v. Huff (11-208)

January 24, 2012 Supreme Court Update

Greetings, Court fans!

The Court delivered four fresh opinions on Monday, including the headline-grabbing decision in U.S. v. Jones (10-1259) holding that the government cannot install a GPS device to track a suspect 24/7. The Court also decided Reynolds v. U.S. (10-6549), holding that sex offenders convicted before July 27, 2006 do not need to follow the requirements of the federal Sex Offender Registration and Notification Act absent a valid rule or regulation promulgated by the Attorney General, National Meat Association v. Harris (10-224), finding that the Federal Meat Inspection Act preempts California's attempt to impose more draconian requirements on slaughterhouses, and Ryburn v. Huff (11-208), a per curiam decision holding that police officers who entered a home without a warrant, but with a reasonable basis for concluding there was an imminent threat of violence, were entitled to qualified immunity.

In United States v. Jones (10-1259), law enforcement officials obtained a warrant to install a GPS tracking device on a vehicle driven by D.C. nightclub owner Antoine Jones, whom they suspected of dealing drugs on the side. Unfortunately, the officers installed the device outside the jurisdiction and beyond the time permitted by the warrant. The device generated evidence connecting Jones with a stash house containing 97 kilos of cocaine and $850,000 cash. Jones moved to suppress the GPS evidence. The trial court agreed to suppress any data obtained while the vehicle was parked next to Jones's house, but held that evidence of the vehicle's other movements was admissible because a person traveling through public spaces had no reasonable expectation of privacy. Jones was eventually convicted of conspiracy to distribute drugs, but the D.C. Circuit reversed, on the ground that the evidence obtained from the warrantless GPS device violated the Fourth Amendment.

All 9 members of the Court agreed that the D.C. Circuit should be affirmed, but they disagreed as to why. Justice Scalia, joined by Roberts, Kennedy, and Thomas – and Sotomayor, for a fifth vote – focused on the fact that the Government "physically occupied private property" for the purpose of obtaining information. Doing so without a valid warrant clearly violated the Fourth Amendment's guarantee of the "right of the people to be secure in their persons, houses, papers" – and, here – "effects." The majority recognized that modern Fourth Amendment jurisprudence, beginning with Katz v. United States (1967), has focused on a person's "reasonable expectation of privacy," rather than any physical trespass. But Katz's reasonable-expectation-of-privacy test only added to, not substituted for, the common-law trespassory test. "At bottom," the majority believed, the Court had to "assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted." Physically placing a GPS device on a target's car was the equivalent of a "constable's concealing himself in the target's coach in order to track its movements," and thus covered by the Fourth Amendment. As for situations involving only the transmission of electronic signals without government trespass, the majority would leave those questions for another day, to be decided under Katz.

Justice Alito, joined by Ginsburg, Breyer, and Kagan, concurred in the judgment only. Justice Alito mocked Justice Scalia's insistence on applying 18th century principles to 21st century problems. At least one GPS device now in use weighs two ounces and is the size of a credit card. As for the constable in the coach, "this would have required either a gigantic coach, a very tiny constable, or both." In Alito's view, the majority's focus on physical trespass created "particularly vexing problems" in cases involving only electronic contact – namely, the capture of signals from GPS and similar devices that are pre-installed in millions of cars and cell phones. He would simply ask whether the target's reasonable expectations of privacy were violated by the long-term monitoring of his vehicle. If GPS monitoring is used for only a short period of time, it is not much different from an agent secretly following the target's car on public roads, which all agree is permissible. And society's expectations of privacy may be changing, in light of increased use (and apparent acceptance) of closed-circuit television monitoring, automated toll collection systems like E-Z Pass, and smartphones. But the extended use of GPS monitoring – 4 weeks in this case – goes beyond what society expects law enforcement will or can do, i.e., secretly monitor and catalogue every single movement of an individual's car for a long period of time. Thus, he concurred with the judgment that the monitoring in this case required a valid warrant.

As mentioned earlier, Justice Sotomayor joined Justice Scalia's opinion that, in this case, the Government's physical trespass triggered the Fourth Amendment. Justice Sotomayor also wrote a separate concurring opinion, however, strongly signaling (no pun intended) that in a case involving electronic monitoring without physical trespass, she might take an even more protective approach. GPS monitoring even for a short period allows the government to collect – and store – at a relatively low cost, comprehensive information about a person's public movements that reflects a "wealth of detail about her familial, political, professional, religious, and sexual associations." If unrestrained, the Government's power to do so is susceptible to abuse, and may chill individual freedom. Justice Sotomayor also signaled that it may be necessary to reconsider the Court's precedent that individuals have no reasonable expectation of privacy in information they voluntarily disclose to third parties; that approach is "ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties" – just think back on your Amazon, Google, or Facebook activity as of late – "in the course of carrying out mundane tasks."

Reynolds v. U.S. (10-6549) addressed a question on which the circuits have split 6-5: whether the Sex Offender Registration and Notification Act, 42 U.S.C. § 16901, applies to sex offenders convicted before the Act's effective date. The Act, passed in 2006 to improve on the patchwork of registration systems in place nationwide, requires people convicted of certain sex crimes to register in jurisdictions in which they live or work, to provide state governments with address and other information, and to update that information when it changes, including when a sex offender moves to a new state. "Whomever . . . is required to register" under the Act – including federal sex offenders or nonfederal sex offenders who travel in interstate commerce – is subject to a criminal penalty for failing to do so under 18 U.S.C. § 2250(a). Although the Act begins broadly with a requirement that "[a] sex offender shall register" – listing no exceptions – it also gives the Attorney General "the authority to specify the applicability of the [registration] requirements . . . to sex offenders convicted before" the Act took effect on July 27, 2006. In February 2007, the Attorney General issued an interim rule stating that "[t]he requirements of [the Act] apply to all sex offenders including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act." 28 CFR § 72.3.

Billy Joe Reynolds, a "pre-Act" offender convicted in 2001, was registered as a Missouri sex offender when he moved to Pennsylvania in September 2007. He did not update his Missouri registration information as that state's laws required, and did not register in Pennsylvania. A federal grand jury indicted him for having "knowingly failed to register and update a registration as required by [the Act]." Reynolds argued that the Act did not apply to him because the Interim Rule violated the Constitution's nondelegation doctrine and the Administrative Procedure Act. The district court rejected Reynolds's arguments on the merits, but the Third Circuit didn't make it that far, concluding instead that the Act's registration requirements applied to pre-Act offenders like Reynolds even in the absence of the Attorney General's rule or a regulation, because the Act requires registration by all "sex offenders."

The Court reversed. Writing for a seven-justice majority, Justice Breyer first pointed to the natural reading of the Act's text: while the first of the law's four statements required that "[a] sex offender shall register, and keep the registration current" – language that reaches broadly – the fourth statement authorized the Attorney General to "specify the applicability" of the registration requirements to pre-Act offenders. Noting that this provision gave the Attorney General the authority to specify "applicability," not "nonapplicability," the majority read it to modify the broader first statement, meaning pre-Act offenders did not need to register unless the Attorney General made a rule saying so. The Court also considered that its reading might serve Congress's concern – reflected elsewhere in the Act – that making the law applicable to pre-Act offenders immediately would have been expensive and possibly infeasible. Finally, the majority observed that its reading "takes Congress to have filled potential lacunae . . . in a manner consistent with basic background principles of criminal law." The Act's second statement, which required sex offenders to register before completing a prison term, created one such gap as it made no mention of pre-Act offenders who completed prison terms before the Act's effective date. Applying the Act to pre-Act offenders would have required reading into the statute some sort of implied time limit on registration, something the Court declined to do in the face of the Act's provision for Attorney General action. Responding to the Government's argument that the Act's purpose and history pointed toward the need to register pre-Act offenders, the Court acknowledged that its reading would mean an implementation delay for those offenders, but emphasized that the delay need not be long: the Attorney General need only issue a valid rule or regulation. The Court remanded to the Third District to consider whether the Attorney General had done so.

Justice Scalia, joined by Justice Ginsburg, dissented. The dissent believed that the Act's registration requirements applied "on their own force, without action by the Attorney General," and that the statement giving the Attorney General authority to specify the Act's applicability to pre-Act offenders "is best understood as conferring on the Attorney General an authority to make exceptions to the otherwise applicable registration requirements." The dissenters took issue with the majority's reading in particular because it "[left] it up to the Attorney General whether the registration requirement would ever apply to pre-Act offenders, even though registration of pre-Act offenders was (as the Court acknowledges) what the statute sought to achieve." Such a reading, in their view, was constitutionally suspect, insofar as it would permit the Attorney General to decide as a matter of discretion whether a criminal statute would or would not apply to particular individuals – which would mean "sailing close to the wind with regard to the principle that legislative powers are nondelegable."

The Court issued a short unanimous decision in National Meat Association v. Harris (10-224), holding that the Federal Meat Inspection Act ("FMIA") preempted California's penal code § 599f(a)-(c), which prohibited certain practices by slaughterhouses, and other entities, with respect to nonambulatory animals, i.e., those that can't walk. (Those of you who are dreaming of bacon for breakfast may want to skip this one.) The Department of Agriculture's Food Safety and Inspection Service ("FSIS") enforces the FMIA and has promulgated extensive regulations governing the inspection of animals and meat and the humane treatment of animals by slaughterhouses, including specific regulations dealing with nonambulatory pigs. Under these regulations, nonambulatory pigs in very poor condition are declared "U.S. Condemned," in which case they cannot be slaughtered in the same facilities used to process animals for food. Nonambulatory pigs in better condition are declared "U.S. Suspect," in which case they are set apart, monitored, and slaughtered separately from other livestock. After slaughter, an inspector conducts a postmortem inspection to determine whether any of the suspect animal's carcass may be processed into food for humans. After the Humane Society released an undercover video in 2008 revealing shocking treatment of sick and disabled nonambulatory cows, California amended its existing laws to strengthen the protections for nonambulatory animals. As amended, California's penal code § 599f bars slaughterhouses from (a) buying, selling, or receiving a nonambulatory animal, (b) processing, butchering or selling meat or products of a nonambulatory animal for human consumption, or (c) holding a nonambulatory animal without taking immediate action to humanely euthanize it. FMIA expressly preempts any state requirements "within the scope of this [Act] with respect to premises, facilities and operations of an establishment at which inspection is provided under . . . this [Act] which are in addition to or different than those made under this [Act]. . . ." The issue for the Court was whether this provision preempted § 599f.

For the Court, led by Justice Kagan, it was not a close call. (Ah, the most junior Justice always gets the plum assignments.) FMIA and § 599f both addressed the humane handling of nonambulatory animals and imposed differing requirements. For example, under FMIA some nonambulatory pigs could still be slaughtered and, depending on the outcome of the postmortem inspection, sold for human consumption. Under § 599f, this was prohibited. That was all that was required: § 599f imposed requirements that were within the scope of FMIA and which were "in addition to" and "different than" those imposed by the Act.

Finally, in Ryburn v. Huff (11-208), the Court issued a per curiam decision siding with officers who entered a home without a warrant while they were investigating a rumor that the student who lived there had written a letter threatening to "shoot up" his school. The officers were told that the boy was frequently bullied. When they went to the boy's house, his mother initially refused to answer the door or the telephone. She eventually stepped outside with the boy, but wouldn't let the officers continue to question him inside. Then, when one of the officers asked whether there were guns in the house, she abruptly ran back inside. The officers followed her and remained in the living room for 5 to 10 minutes, until the boy's father demanded that they leave. The Huffs then brought a § 1983 action against the officers. After a 2-day bench trial, the District Court found that the officers were entitled to qualified immunity because Mrs. Huff's strange behavior, culminating with her running back into the house when asked about guns, combined with what they had been told about the boy, and what they understood about the profile of school shooters, could have led reasonable officers to believe that family members or the police themselves were in danger. A 2-1 panel of the Ninth Circuit reversed, concluding that Mrs. Huff had never had an obligation to speak with the officers, and that in turning away from them, she had merely asserted her right to end the conversation.

The Court reversed. The Court criticized the panel majority for disregarding the District Court's findings of facts and – with the benefit of hindsight and calm deliberation – second-guessing the officers' assessment of danger at the scene. The panel majority erred in assuming that conduct that is technically lawful – for example, Mrs. Huff's response to the officer's question about guns – cannot be considered a matter of concern. The panel majority also erred in analyzing each event leading up to the entry in isolation, for "it is a matter of common sense that a combination of events each of which is mundane when viewed in isolation may paint an alarming picture."

Whew! The Court has been going at a fast clip for January, and so have we. Thanks for sticking with us.

Kim & Jenny

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400