Supreme Court Issues Narrow Holding in Affirmative Action Case

By Brian Pasquale

In Fisher v. University of Texas at Austin, the Supreme Court of the United States considered the issue of racial classifications in education.  While many were hoping for a landmark decision, ultimately the Court held that the lower court did not apply the correct standard and remanded the case for further proceedings.

Background

The admission program at the University has evolved in recent history.  Prior to 1997 the University considered two factors when evaluating an applicant; one score that was based off of their academic performance in high school as well as their standardized test scores, and the second score based on the applicant’s race.  The United States Court of Appeals for the Fifth Circuit held this system unconstitutional in 1996 because the system did not further any compelling government interest.[i]  The University adopted a new system to comply with the Court of Appeals holding and began using a system that substituted race with what an applicant’s potential contribution to the university would be.  The University titled this program the Personal Achievement Index (“PAI”).  The PAI measures a student’s leadership and work experience, awards, extracurricular activities, community service and other circumstances that shed light on a student’s background.  In addition to the PAI being implemented, the Texas State Legislature passed the Top Ten Percent Law, which granted admission to any student who placed in the top ten percent of their graduating class.  Following the Supreme Court’s decisions in Grutter v. Bollinger[ii] and Gratz v. Bollinger[iii], a third admission program was adopted which is the one that was challenged in the case at bar.[iv]  The new program included a student’s race as a component in the PAI score, asking students to classify themselves as one of five races.  After an applicant has been scored, they are placed on a grid with the Academic Index on the x-axis and the PAI on the y-index, students who are in a cell above a certain line are admitted and students in a cell below the line are denied admission.

Petitioner applied for admission to the University in 2008 and was denied admission.  She sued the University, claiming that the University’s program violated the Equal Protection Clause.  The District Court granted summary judgment to the University.  The United States Court of Appeals for the Fifth Circuit affirmed the decision holding that Grutter required courts to give deference to the University in both the benefit that they believe having a diverse student population brings to the University as well as whether the plan was applied to achieve the goal of achieving educational benefits by increasing the diversity of the student population.

Analysis

The Court began by tracing the Court’s history on the issue of racial classification in education.  In Regents of Univ of Cal. V. Bakke[v] Justice Powell set out the standard by stating “any racial classification must meet strict scrutiny, for when government decisions touch upon an individual’s race or background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling government interest.”[vi]  Of the compelling interests that Justice Powell identified included the interest in the educational benefits that flow from a diverse student body, because it is not simply above race, but about benefiting the overall educational experience.  Gratz and Grutter added to Justice Powell’s point in Bakke, by stating that the process used to achieve the racial diversity must be subject to judicial review, and race cannot be used as a factor unless the admission process can withstand strict scrutiny.

The Court then took up the present case, and began by agreeing with the District Court and Court of Appeals that the Court should defer to the University’s experience and expertise in deciding that diversity would serve the University’s educational goals.  However, while the Court agreed with the lower courts on the first issue, they disagreed with them on the second.  According to the Court, once the use of diversity to further educational goals has been held to be consistent with strict scrutiny, the University must also pass a second test.  The second test is whether the program is “narrowly tailored to achieve the goal of furthering education.”  In essence, the University must have considered other alternative admission programs that do not take race into account and determine whether they could further their stated goal.  In addition to considering the alternative programs, if a program that does not involve race would have still allowed the University to achieve its goal, then the University may not consider race.  Due to the fact that the Court of Appeals did not apply the strict scrutiny standard correctly, the Court remanded the case.


[i] Hopwood v. Texas, 78 F.2d 932, 955 (1996)

[ii] 539 U.S. 306 (2003)

[iii] 539 U.S. 244 (2003).

[iv] In Grutter, the Court permitted the University of Michigan Law School to use race as a factor in the admission process because the University was not using a “quota system” where a set number of minorities had to be admitted.  In Gratz, the Court struck down The University of Michigan’s undergraduate admission program because the University automatically added points to an applicant if they were from a certain racial minority.

[v] 438 U.S. 305 (1978) (opinion of Powell. J)

[vi] Id. at 229

US Supreme Court: K-9 Dog Sniff Sufficient to Establish Probable Cause

On February 19, 2013, the Supreme Court decided the case of Florida v. Harris, and held that use of a drug dog to establish probable cause to search a vehicle does not violate the Fourth Amendment of the United States Constitution.

Facts: Respondent was pulled over by a law enforcement officer for a routine traffic stop.  While speaking to the respondent, the officer noticed that the respondent was becoming increasingly nervous and also observed an open beer can.  Respondent refused the officer’s request to search the vehicle; the officer subsequently executed a sniff test with his trained narcotics dog, Aldo.  The dog alerted at the driver’s side door, leading the officer to determine that he had probable cause to search the vehicle.  The search did not provide anything that the dog was trained to detect, but did reveal ingredients that are used to manufacture methamphetamine.  When the respondent was released on bail he was pulled over by the same officer who again had Aldo do a sniff of the vehicle, this time producing nothing.  The respondent moved to have the evidence from the stop suppressed, arguing that the officer did not have probable cause to search his vehicle based on the dog’s alert.  The trial court held that the officer had probable cause and denied the motion to suppress.  The respondent then entered a no-contest plea, reserving the right to appeal the trial court’s ruling.  After an intermediate state court affirmed, The Florida Supreme Court reversed.

Florida Supreme Court: The Florida Supreme Court held that the officer lacked probable cause to search the defendant’s vehicle under the Fourth Amendment.  The court went on to say that “When a dog alerts, the fact that the dog has been trained, and is certified, is simply not enough to establish probable cause.”  The court held that the State needed to produce a wider array of evidence to demonstrate a dog’s reliability.  The Florida Supreme Court gave several examples: the dog’s training and certification records; an explanation of the meaning of the particular training and certification; field performance records; and evidence concerning the experience and training of the officer handling the dog.

Supreme Court’s Ruling: The Court began by tracing the history of probable cause and establishing the foundation for the Courts decision.  The Court stressed that, in determining whether the State has met the probable cause standard, the Court has consistently looked to the “totality of the circumstances” test.  Foreshadowing its ultimate decision, the Court noted that in Gates, the Court abandoned the old test for assessing the reliability of informant’s tips “because it had devolved into a “complex superstructure of evidentiary and analytical rules.” (1)  The Court continued, describing probable cause as a “fluid concept-turning on the assessment of probabilities in any particular factual context-not readily, or even usefully, reduced to a neat set of legal rules.”  The Supreme Court determined that this is exactly what the Florida Supreme Court did in its decision, created a strict evidentiary checklist, which requires the state to mark off each item.

Rather than having the “strict evidentiary checklist” that the Florida Supreme Court determined was the best approach, the Supreme Court held that evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert.  “If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume that the dog’s alert provides probable cause to search.”

Regarding a probable-cause hearing on a dog’s alert, the Court gave guidance to the lower courts on how these should be administered.  The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure.  After evaluating the proffered evidence to decide what all the circumstances demonstrate; if the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause.  However, if the defendant has challenged the State’s case, then the court should weigh the competing evidence.  Overruling the Florida Supreme Court test, the Court once again stated that the question is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonable prudent person think that a search would reveal contraband or evidence of a crime.

(1)    Illinois v. Gates, 462 U.S. 213, 235 (1983)

Supreme Court Continues Trend of Protecting Individual Fourth Amendment Rights

imagesOn February 19, 2013, in Bailey v. United States, the Supreme Court issued an opinion limiting police officer’s authority to detain an individual incident to the execution of a search warrant.  The decision is another example in recent history of the Supreme Court’s refusal to limit the Fourth Amendment.

Facts

While police were preparing to execute a warrant to search a basement apartment, detectives conducting surveillance in an undercover police vehicle located outside the apartment observed two individuals leave the gated area above the apartment, get in a car and drive away.  The detectives waited for the men to leave and then followed the car approximately a mile before stopping it.  Keys to the apartment were found on the petitioner who initially informed police that he resided in the apartment before denying it when informed of the search.  The District Court denied the defendant’s motion to the apartment key and statements he made to the detectives under Michigan v. Summers (1).  The Second Circuit affirmed the decision and the Supreme Court granted certiorari.

History

The Fourth Amendment provides the right of every citizen to be secure in their persons against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.  A general rule on the Fourth Amendment is that Fourth Amendment seizures are “reasonable” only if based upon probable cause “to believe that the individual has committed a crime.  In Michigan v. Summers, the Supreme Court established an exception to this general principle and defined an important category of cases in which detention is allowed without probable cause to arrest for a crime.  The rule established in Summers, is that the law permits officers executing a search warrant “to detain the occupants of the premises while a proper search is conducted.”  This rule is unique as it extends farther than other exceptions to the Fourth Amendment in that it does not require law enforcement to have particular suspicion that an individual is involved in criminal activity or poses a specific danger to the officers.

In Summers and the cases that followed, the occupants detained were found within or immediately outside a residence at the moment the police officers executed the search warrant.  However, in the present case petitioner left the apartment before the search began and the police officers waited to detain him until he was almost a mile away.  Thus, the Court must decide whether the reasoning the Court used in Summers can justify detentions beyond the immediate vicinity of the premises being searched.

When Summers was decided, the Court reasoned that there were three important law enforcement interests that justify detaining an occupant who is on the premises during the search warrant’s execution.  (1) The safety of the officers and the need to detain the current occupants so they can search without fear that the occupants will become dangerous or frustrate the search.  (2) The facilitation of the completion of the search, if an occupant is free to move around during the search they may potentially obstruct the search or destroy evidence.  (3) The interest in preventing the flight of the occupants.

Analysis

The Court addressed all three interests established in Summers and applied the facts of the present case to those interests.  The first interest, officer safety, was not at risk because petitioner was away from location of the search and further, he was not even aware that a search was being conducted.  Additionally, if he had returned to the scene and did pose a threat, he would have been able to be lawfully detained because he was on the premises.  Addressing the second interest regarding the facilitation of the search, an individual who is not on the premises when the search is being conducted cannot obstruct a search or destroy evidence.  Finally, in addressing the concern of potential flight, the court said that if law enforcement is able to use flight as an excuse to apprehend occupants without any limitations, a suspect may be able to be seized 10 miles or further away from their house.  The Court then quoted a former Supreme Court case saying “the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment.” (2)

The Court also emphasized the fact that the intrusion on personal liberty of a detention away from the premises of one’s home is significantly greater than the intrusion on an individual’s liberty while they are on their premises or inside their home.  When someone is apprehended in their yard or even inside their home, it does not raise the level of the public stigma or indignity associated with the search of the home itself.  However, when one is detained away from their home there is an additional level of intrusiveness.  Even if it is not an arrest it will appear to the public as a full-fledged arrest.  This is another important reason why the decision the Court established in Summers, must be limited and not used by law enforcement as a vehicle to apprehend occupants of a home even if they are not at their home during the search.

(1)    Michigan v. Summers, 452 U.S. 692 (1981)

(2)    Mincey v. Arizona, 437 U.S. 385, 393 (1978)

Supreme Court Agrees to Hear Gay Marriage Cases

The Supreme Court announced today that it will hear two critical cases involving gay marriage.  The first involved a challenge the Defense of Marriage Act[1] (DOMA).  Passed in 1996, DOMA denies federal recognition of gay couples married in states legalizing gay marriage.  As a result of DOMA, Congress has thus far been able to prevent legally married gay Americans from receiving the same federal benefits heterosexual married couples receive – a violation of the 14th Amendment’s Equal Protection Clause. The Appeals Courts in both Massachusetts and New York have struck down the law as unconstitutional.

The second case involves a challenge to California’s notorious 2008 Proposition 8 law, which was passed after that state’s Supreme Court ruled homosexual couples defined marriage as between a man and a woman. Although it passed as a ballot measure, the constitutional amendment was struck down by the 9th Circuit Court of Appeals.

Gay marriage is legal, or will be soon, in: Connecticut, District of Columbia, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington.  Although national support for gay marriage has steadily risen over the years, thirty-one states have amended their state’s constitution to ban gay marriage.

The rights of millions of Americans are at stake in this case.  A broadly stated decision in favor of gay marriage could overturn every state constitutional provision and law banning same-sex marriages.  A ruling in support of Proposition 8 and/or DOMA, will be seen as a victory for states’ rights.  However the Court rules, this promises to be the most significant ruling the Court has had since it upheld the Affordable Care Act earlier this year.

Is a Dog-Sniff Alert Sufficient to Establish Probable Cause?

On October 31st, 2012, while the rest of the country will be busy celebrating Halloween, the Supreme Court of the United States (SCOTUS) will face the haunting and controversial question of whether a dog-sniff alert is sufficient for establishing probable cause.  The two cases, both out of Florida, touch on one of a myriad of issues that must be resolved as SCOTUS defines the contours of our Fourth Amendment rights.  The impact of the court’s ruling will have reverberations and consequences on the law enforcement community and criminal trials for years to come.

Florida v. Harris[1]

In the first case, Clayton Harris was driving with an expired tag, according to Deputy Wheetley.  Following a valid stop, Deputy Wheetley noticed Harris acting visible nervous.  Moreover, there was an open container of alcohol in the cup holder.  Harris denied the Deputy’s request to search the vehicle.  The Deputy retrieved a K-9 narcotics detection dog.  The K-9 sniffed the car and alerted Deputy Wheetley of narcotics.

Harris was asked to exit the vehicle while a search of the vehicle was conducted.  The search yielded narcotics and other contraband.

The trial court denied the Defendant’s motion to suppress and found there was probable cause to search.  The First District Court of Appeal affirmed.  The Supreme Court of Florida reversed the opinion of the First District.  The United States Supreme Court granted certiorari to the State of Florida to review the judgment of the Supreme Court of Florida.

Florida v. Jardines

In Jardines, Florida law enforcement officials received a tip that the defendant was growing marijuana inside his home.  They then brought a drug dog to the defendant’s home, and after the dog indicated that there was marijuana inside, the police entered and found the plants.  The Florida Supreme Court held that the use of the dog without a warrant violated the defendant’s Fourth Amendment rights and even if a drug dog alerts the police that there are narcotics inside, a warrant is still required.  The rationale behind the Florida Supreme Court’s ruling was that if law enforcement officials are able to conduct a test such as this without any prior showing of wrongdoing, there is nothing to prevent the officials from doing this at any civilian’s home based on little to no evidence.

Implications

Under the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.

SCOTUS has previously ruled that a dog sniff in and of itself is not a search, based largely on its non-intrusive nature[2]. In Florida v. Harris, the dog sniff was not the search; it was, however, the basis for probable cause justifying the vehicle search.  The Supreme Court of Florida held that evidence of a K-9’s training, qualifications, and certifications are insufficient to establish the dog’s reliability to determine probable cause.

Other federal courts weighing in on this issue has determined that an alert by a well-trained narcotics detection dog does, in fact, provide probable cause.[3]

Should Florida v. Harris be upheld, will that invite more challenges to K-9s used to track felons and detect explosives?  Will this limit the usefulness of dogs in a law enforcement capacity?

Massachusetts treatment of the issue

Massachusetts has held that a dog sniff will usually suffice as the basis of probable cause[4]. However, when the dog is the sole basis of the search under the “totality of the circumstances” test, the government must show why the particular dog was reliable.  This determination focuses heavily upon the dog’s qualifications: certifications, training, experience, and success rate.

Infallible dog theory

In a dissenting opinion regarding a dog-sniffing case, Justice Souter once quipped: “The infallible dog, however, is a creature of legal fiction.”[5] He went on to describe the error rates of dogs and their limited reliability.  Indeed, despite their usefulness, there are numerous issues when law enforcement officials rely too heavily upon a dog sniff.  The first is the dog’s qualifications, their training, success rates, etc.  A second consideration is the role of the handler.  How qualified is that handler?  How well do they understand the dog they are handling?  Finally, what was the alert the dog gave – passive or aggressive?  Was it interpreted properly?

The role of dog sniffs in the context of Fourth Amendment rights continues to evolve.  Florida v. Harris will be a seminal case in Fourth Amendment jurisprudence and will undoubtedly affect judges, attorneys, and law enforcement officials moving forward.

Editor’s Note – Updated on October 31, 2012.

[1] http://sblog.s3.amazonaws.com/wp-content/uploads/2012/01/HarrisUSSC-CertPetFinal.pdf

[2]United States v. Place, 462 U.S. 696, 706-07 ( 1983).

[3] U.S. v. Sentovich, 677 F.2d 834 (11th Cir. 1982); U.S. v. Robinson, 390 F.3d 853 (6th Cir. 2004); U.S. v. Parada, 577 F.3d 1275, 1282 (10th Cir. 2009).

[4] Commonwealth v. Matias, 440 Mass 787, 793 (2003).

[5]Illinois v. Caballes, 543 US 405, 412 (2005).