Rocky Mountain Appellate Blog

Unpublished Opinions in the Qualified Immunity Context

In Morris v. Noe (No. 11-5066) the Tenth Circuit addressed the use of unpublished opinions to determine whether a law is “clearly established” for qualified immunity purposes. The court held that while “a single unpublished district court opinion is not sufficient to render the law clearly established,” it clarified that “we have never held that a district court must ignore unpublished opinions in deciding whether the law is clearly established.”

Voter Registration

 In Valdez v. Squier (11-2063), the Tenth Circuit addressed the policy of the New Mexico Human Services Department (“HSD”) of providing voter registration materials to applicants for public assistance only if they checked “yes” on a form indicating that they would like to apply to register to vote or orally requested a form. As phrased by the court, “HSD has interpreted Section 7 [of the National Voter Registration Act] as requiring an applicant to “opt in” to receiving a voter registration form.”

The Tenth Circuit rejected this position as “directly rebutted” by the statute, which requires “a designated voter registration agency to provide an applicant with a voter registration form ‘unless the applicant, in writing, declines to register to vote.’” The court rejected New Mexico’s interpretation of the phrase “in writing” and held that “an applicant’s failure to check either the ‘YES’ or ‘NO’ box on the declination form does not constitute a declination ‘in writing.’ Thus, in sum, subsection (A) requires an applicant to affirmatively, by way of writing, ‘opt out’ of receiving a voter registration form.”

Just How Important Is the Supreme Court’s GPS “Surveillance” Decision?

On January 23, the Supreme Court upheld a D.C. Circuit decision suppressing evidence obtained from a GPS device attached to an alleged drug dealer’s Jeep (United States v. Jones).  Remarkably, the decision was 9-0 in favor of suppression – a surprising fact in itself given the pro-law-enforcement leanings of some of the Justices.  Even more remarkable is that the Court split 5-4 on the rationale for suppressing the evidence in a way not involving the usual 5-4 lineups.  Justice Scalia authored the opinion of the Court, joined by, inter alia, Justice Sotomayor.  Justice Alito, usually one of Justice Scalia’s closest allies, authored the concurrence which contained more than its fair share of shots at the majority’s reasoning.

The facts are relatively simple.  The federal government obtained a warrant to install a GPS tracking device on a Jeep belonging to Jones’ wife within 10 days in the District of Columbia.  On the 11^th day, the feds surreptitiously attached the GPS device to the Jeep in a parking lot in Maryland – hence beyond that which was allowed by the warrant.  For the next month, the feds tracked Jones and were successful in linking up his presence at a “stash house” that contained massive quantities of cash and drugs.  Jones unsuccessfully sought to suppress the bulk of the evidence from the GPS and he was convicted and sentenced to life in prison.  The D.C. Circuit overturned the conviction on the grounds that the evidence from the GPS tracking device should be suppressed because the installation and tracking violated Jones’ Fourth Amendment rights.

The Supreme Court unanimously upheld the D.C. Circuit’s suppression ruling but split 5-4 on the reasoning.  Justice Scalia, writing for the Court, equated the illegal search as an old-fashioned trespass on Jones’ “effects.”  (The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated.”)  Relying upon earlier interpretations of the Fourth Amendment that themselves relied heavily upon traditional notions of trespass on property, the majority characterized the GPS’s installation and subsequent tracking as, in effect, a physical trespass.  The majority distinguished two earlier decisions that had upheld the use of “beepers” in tracking illegal contraband.  In both cases, per the majority, the “beepers” were installed in the contraband with the approval of the then-owner of the contraband that later found their way into the possession of the person ultimately stung by the “beeper’s” data.

Justice Alito, writing for the four concurrences, criticized the majority’s reasoning as essentially antiquated.  Justice Alito noted that the physical-trespass line of Fourth Amendment authority gave way to what today is the “reasonable expectation of privacy” test.  (The leading case, Katz v. United States, involved what was held to be an illegal attachment of a listening device to a public telephone booth.  The Court held that the person in the telephone booth had a “reasonable expectation of privacy” that was violated by the attachment of the listening device.)  Justice Alito would hold that the GPS device in Jones’ case violated his reasonable expectation of privacy.

So what do we make of this?  Studying the opinions, it is clear that Scalia and company did not want to issue too broad an edict, understanding full well that current technology poses a myriad of situations for police eavesdropping that dramatically dwarfs what was possible under earlier wiretap technology.  Alito, on the other hand, was prepared to stake a flag in the ground that persons today in our digital world continue to enjoy certain privacy protections under the Fourth Amendment – a holding that would have had more far reaching consequences.

I believe the criticism leveled by some to the majority rationale is overstated.  The decision is still a clear win for privacy advocates.  We could have seen five votes equating the GPS device to the “beeper” cases noted above which would have eviscerated Fourth Amendment rights in the digital context.  Instead, there are at least four votes for recognizing Alito’s “reasonable expectation of privacy” test in the digital context, and, while Justice Sotomayor joined Justice Scalia in his opinion, she (and even Justice Scalia on a closer read) recognize that the “property/trespass” protection recognized in Jones was in addition to, not in lieu of, the “reasonable expectation of privacy” test.  In short, privacy advocates live to fight another day in challenging other digital surveillance techniques that arguably go too far.

Easements

In Haworth v. United States (No. 11-8006), the Tenth Circuit addressed an easement for a truck trail that had been granted in 1940 and laid dormant until 2007, when the United States Forest Service suddenly expressed an interest in exercising its rights under the easement for fire suppression work and public access. Learning of this interest, the underlying property owners filed a quiet tile action challenging the easement. The United States filed a counterclaim, seeking to quiet tile in its favor, and a declaration that it’s propose use of the easement did not exceed the scope.

The Tenth Circuit affirmed the District Court’s decision, which upheld the United States’ interest in the easement. The Court held, among other things, that because no road had ever been built in the first place, the easement had not been terminated by its terms, even though the fire tower it was intended to serve was closed in the 1960’s. It further found that the United States had not clearly and unequivocally abandoned its right to the easement. Finally, it concluded that the proposed use was appropriate.

False Lien Better Defined

United States v. Hoodenpyle (No. 10-1457) is an appeal from a conviction for filing a false lien on the property of an IRS agent attempting to collect unpaid taxes from the defendant. Much of the opinion consists of an analysis of what makes a lien a lien (as distinct from a “notice” or potential “claim”). In the district court, the issue was submitted to the jury, which was instructed that “a ‘lien or encumbrance’ is a document, filed with a County Clerk and Recorder, that states that the owner of the property described is [indebted] to or owes an obligation to the person filing the document.” This instruction was upheld on a plain error review. In addition, the Tenth Circuit’s own analysis included an examination of the language of the document itself, as well as a discussion of the testimony of a title examiner who participated in a refinancing of the property regarding the actual clouding of title created by the document.

Habeas Review of Military Proceedings

In Pacheco v. Commandant, USDB (No. 11-3301) the Tenth Circuit denied a habeas challenge to a court martial (something I had not seen before). The standard of review in such circumstances is limited. As phrased by the court: “If the military courts have given full and fair consideration to the claims asserted in the habeas petition, we [the Court of Appeals] cannot consider the merits and must deny the petition.” Moreover the court goes on to note that “[w]e generally assume that that the military has fully and fairly considered an issue if it has been briefed, even if the military court summarily rejects the petitioner’s arguments.” Given that a wholly new argument would likely be barred, review appears limited to circumstances where a petitioner can show affirmative evidence that his argument was not fairly considered. It is hard to imagine what such evidence might be.