Sherry F. Colb

How The Supreme Court May Have Quietly Undermined the Constitutional Requirement of "Probable Cause"

By SHERRY F. COLB
Wednesday, August 18, 2010

In December of this past Supreme Court term, the Justices decided a little-noticed Fourth Amendment case, Michigan v. Fisher. Fisher was not widely reported because it was a per curiam opinion, in which the parties do not submit briefs on the merits or present oral arguments, and there is no official "author" of the Court's opinion.

Nonetheless, Fisher could represent an important Fourth Amendment development. Indeed, taken to its logical conclusion, the Court's approach in the case could ultimately undermine the constitutional requirement of "probable cause."

Per Curiam Opinions

Cases typically come before the Supreme Court in this way: The party that loses in the lower court files a petition for certiorari, contending that not only was the decision of the lower courts wrong on the merits but -- and more importantly -- the case is itself an excellent vehicle for announcing the correct legal rule for the whole country.

The Court normally calls for a response to the petition from the winning party in the lower court. If it then grants certiorari (that is, agrees to review the case), the parties submit briefs regarding the issues the case raises ("merits briefs"); other interested parties may submit amicus curiae ("friend of the court") briefs; and oral argument ensues.

In the end, with few exceptions, one Justice -- identified by name -- authors an opinion for a majority or a plurality of the Court, in which she or he announces which side prevails and explains why.

But per curiam opinions are different: The Court does not ask for merits briefs or schedule oral argument. It looks only at the petition for certiorari and the opposition to that petition -- and as noted above, both of these focus far more on whether the case is a good vehicle for the Court to announce a national legal rule, than on the merits of the case. (Indeed, the party opposing certiorari often will avoid making any new or creative arguments on the merits, for fear of inadvertently signaling to the Court that the case is worthy of review.)

In an important sense, then, a per curiam opinion operates outside of the adversary system, because the Justices decide the merits of the case without much input from the parties whose case it really is.

Why the Court Sometimes Chooses to Issue Per Curiam Opinions

One reason for the Justices to take a case and dispose of it in a per curiam opinion is that the decision in the lower court is so obviously wrong that they feel it must be reversed. If the error below is sufficiently obvious and egregious, then there is no need to waste the Court's time with briefing and oral argument.

Take, for example, a situation in which a state judge tells a jury in a criminal case that it must convict the defendant of murder if it finds that the evidence supports a guilty verdict by a "preponderance of the evidence" -- rather than using the required "beyond a reasonable doubt" standard.

Imagine, too, that the state appellate courts affirm the conviction, finding that even though the judge gave an incorrect instruction, the evidence was sufficiently overwhelming to render the error "harmless." This ruling would plainly be incorrect (because an instruction like that is not subject to harmless error analysis, under Sullivan v. Louisiana).

The Supreme Court might then -- if the particular state appeared to make this error on a regular basis, for example -- see fit to issue a per curiam opinion reversing the conviction, with no need to have the parties argue a question that the Court has already decided in the past and sees no reason to revisit.

The Facts and Proceedings in Michigan v. Fisher

Initially, Fisher may have appeared to be a case that was plainly decided incorrectly. Here are the facts: The police received a complaint about an alleged disturbance. Two officers came to the scene. A couple directed the police to a home where the front of a pickup truck was smashed, and windows were broken, with the broken glass still there. Blood was on the pickup's hood, on clothing inside the truck, and on one of the doors of the house.

Police could see a man, Jeremy Fisher, screaming and throwing things inside the house.

The police knocked and asked whether Fisher needed medical attention (after noticing a cut on his hand). He responded with profanity and a demand that the police get a warrant. One of the officers opened the door of the house and found himself facing an armed Jeremy Fisher, pointing a long gun directly at him.

Fisher was charged with assault with a dangerous weapon and possession of a firearm during the commission of a felony. Fisher brought a motion to suppress the evidence against him -- which consisted of the officer's testimony about what he saw after entering Fisher's house. Fisher contended that the officer violated the Fourth Amendment by entering a private home without a warrant, rendering the resulting evidence the product of an unreasonable search.

The Michigan trial court suppressed the evidence, and the appellate court affirmed the trial court's decision. After the Michigan Supreme Court decided not to review the case, the State of Michigan filed a petition for certiorari in the U.S. Supreme Court.

The Per Curiam Opinion in Fisher

In Fisher, the Supreme Court issued a per curiam opinion reversing the grant of the motion to suppress and finding that under a 2006 decision, Brigham City v. Stuart, the police officer had acted properly within the "emergency aid exception" to the Fourth Amendment warrant requirement. Pursuant to this exception, a form of "exigent circumstances," a police officer "may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury."

This may all seem straightforward. Yet the erroneousness of the ruling was not obvious enough to garner a unanimous decision from the Justices, a typical mark of a per curiam. Though we do not know who authored the majority opinion, Justice Stevens wrote a dissent, in which Justice Sotomayor joined. A decision that inspires a dissenting opinion seems precisely the sort of case that could have benefited from merits briefing and oral argument by the parties, both on the facts and on the law.

On the facts, as Justice Stevens pointed out in his dissent, the trial judge had heard testimony from the police officer who entered the house, and that judge was thus in the best position to determine whether or not this was a situation whose facts triggered the "emergency aid" exception to the warrant requirement. Indeed, according to the dissent, the trial court had found that the police officer behaved in a way that suggested that he did not have any reasonable belief that Fisher was in need of immediate aid. The officer apparently left the scene without returning for several hours and without resolving any potentially dangerous situation or calling for medical assistance.

An Important Departure

Had the Supreme Court simply rejected the trial court's finding that there was no emergency, one could say that the Court had perhaps made a mistake but that the mistake would not have any larger implications.

Instead, however, the Supreme Court responded in the following way to the dissent's suggestion that the police officer was apparently not reasonably worried about an emergency:

". . . [E]ven if the failure to summon medical personnel conclusively established that Goolsby [the officer who entered the house] did not subjectively believe, when he entered the house, that Fisher or someone else was seriously injured …, the test, as we have said, is not what Goolsby believed, but whether there was 'an objectively reasonable basis for believing' that medical assistance was needed, or persons were in danger."

Note what had already been said before Fisher in Brigham City v. Stuart: The emergency-aid exception exists so that an officer facing circumstances in which a resident has been, or imminently will be, seriously injured, can intervene in time to make a difference. We can all agree that it would be inappropriate to compel officers to seek a warrant when someone is bleeding to death inside a house. As the Court further said in Brigham City v. Stuart, moreover, the officer's subjective motivations are not decisive. Even if the officer enters because he wants to arrest a suspect, in other words, his entry is still justified if it is needed to prevent or address imminent violence.

What the Court says above, in Fisher, however, goes further. It says that it does not matter whether the police officer actually believes that anyone is in need of immediate intervention, so long as some hypothetical reasonable officer could have believed it, given the circumstances. In particular, the Court says that even if it were "conclusively established" that Officer Goolsby "did not subjectively believe, when he entered the house" that anyone was injured, it would still have been lawful for him to enter if there was a reasonable basis for believing it.

Prior to this case, the Supreme Court had -- in Brigham City v. Stuart as well as other cases -- betrayed its indifference to police officers' true motivations. When assessing the Fourth Amendment legitimacy of officers' conduct, the Court looks to the objective reasonableness of the officer's finding the factual foundation for action, not at what truly drove the officer to act. In Stuart, this meant that police could enter a house without a warrant on the basis of the "emergency aid" exception, even if his main motivation for entering was to perform an arrest, rather than to offer aid.

In a 1996 case, Whren v. United States, the Court had held similarly that a police officer performs a "reasonable stop" in pulling over a driver who has just committed a traffic violation in front of the officer, even if the officer's decision to stop the vehicle (a) was not motivated by the traffic violation; (b) had in fact preceded the violation; and (c) may have been motivated by the race of the car's occupants. (The Whren opinion did suggest that racial motivation might violate the Fourteenth Amendment's Equal Protection Clause). What matters under the Fourth Amendment, said the Court, is that the police officer had had probable cause to believe that the driver committed an offense, not whether it was or wasn't that probable cause which motivated the officer to stop the car.

Under the Whren approach to the emergency-aid exception, even if an officer enters a hemorrhaging resident's house because he hopes to find cocaine there, the entry would still be justified by the officer's knowledge of the hemorrhaging resident.

In Fisher, however, the Court does not limit itself to disregarding officer motivation. Now, it not only does not matter whether the facts justifying a warrantless entry into the home are what truly motivated the officer's warrantless entry. It does not even matter whether the officer actually believed that the resident was hemorrhaging at all. This means that the officer need not believe that the factual preconditions for a justifiable warrantless entry even exist, prior to entering the home, so long as a hypothetical reasonable person could have believed that those factual preconditions existed.

The problem with this position is that the only reason that the officer is allowed to enter without a warrant is the presence of an emergency. What makes a situation an emergency, of course, cannot be dictated by whether the resident actually needs immediate assistance, because the officer cannot fairly be required to know with certainty what is happening inside the house. What is left, then, is factual circumstances that give rise to a reasonable conclusion by the officer that the resident needs immediate assistance.

If the officer has not drawn the conclusion that the resident needs immediate assistance, however, then it would seem entirely inappropriate for her to enter without a warrant. It would be comparable to a surgeon who concluded that her patient did not have prostate cancer (in circumstances in which some other, hypothetical, surgeon might have reasonably concluded that the patient did have prostate cancer) nonetheless performing surgery to remove the patient's prostate. If it were conclusively established that the surgeon did not believe that her patient had cancer, then the decision to operate could not plausibly be described as objectively "reasonable."

The Next Logical Step

If an officer may invade protected Fourth Amendment interests without even having to believe in the factual circumstances that would justify the invasion, then the next logical casualty could be probable cause itself -- the usual standard for when an officer may perform a Fourth Amendment search or seizure. An officer has probable cause if she knows of facts and circumstances on the basis of which it is reasonable to conclude that the target of the search or seizure has committed a crime or is harboring evidence of crime in the place to be searched.

After Fisher, one could argue that an officer need not believe in the truth of those facts and circumstances. Maybe the officer has concluded, for example, that the screaming he hears is coming from the television, because he remembers the precise sounds from a film he watched on TV last week. At the same time, however, another officer, unfamiliar with the film in question, could have reasonably concluded that someone was screaming and that there was therefore a crime taking place inside the house.

If what matters is not what the officer actually knows or believes but what a hypothetical other officer might have reasonably believed under the circumstances, then an officer who knows that a person has committed no crime and harbors no evidence could, in theory, still arrest and search that person because appearances might have

led another officer to conclude, reasonably, that the person did commit a crime.

This would be an unfortunate development, albeit one that follows logically from Michigan v. Fisher, a decision that the Supreme Court has now made, without the benefit of briefing or oral argument. If the facts, as an officer sees them, do not add up to probable cause -- or to an exception to the warrant requirement -- then the Justices do a disservice to "the people" by permitting intrusions on the basis of what a different, hypothetical officer might have sincerely concluded in these circumstances. Just as a jury is expected to determine whether it is actually convinced beyond a reasonable doubt that a defendant is guilty (and not whether there is sufficient evidence for a hypothetical reasonable jury to convict), a police officer should be expected to determine whether she is actually persuaded that a crime has occurred or that the conditions for a warrantless entry obtain, before invading people's reasonable expectations of privacy.


Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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