District of Columbia v. Wesby, USSC No. 15-1485, 2017 WL 491521 (January 22, 2018), reversing Wesby v. District of Columbia, 765 F.3d 13 (D.C. Cir. 2014); Scotusblog page (including links to briefs and commentary)
The probable-cause determination in this case is quite fact-specific, and the qualified immunity issue is of little interest to criminal practitioners. Perhaps more interesting is Justice Ginsburg’s concurrence, which signals she is open to reconsidering whether the existence of probable cause necessarily validates an arrest.
D.C. police were called to a house where there was a noisy party going on. Neighbors told the officers that nobody lived in the house; it was vacant. The officers knocked on the door and were let in, and observed, well, a pretty serious party in a vacant house: no furniture, filthy floors, the smell of marijuana, cups of liquor, the living room serving as an impromptu strip club, an apparent multiple-participant sexual encounter going on upstairs. Some of the 21 people in the house said it was a bachelor party, though nobody could identify the bachelor. Some told the officers they had been invited to a party by someone called either “Peaches” or “Tasty,” who was the house’s tenant. Peaches wasn’t there, but the cops got her cell number and had a few conversations with her. She claimed initially that she had leased the house and had given the attendees permission to be there. Later, however, she admitted she herself had no permission to use the house. When officers called the house’s owner, he confirmed that Peaches did not have a lease.
The officers arrested all the partygoers on suspicion of unlawful entry, though all charges were eventually dropped. Several partygoers sued, claiming their arrests violated D.C. and Fourth Amendment law. The District Court and the D.C. Circuit held for the partiers.
The Supreme Court reverses, without dissent. Justice Thomas, writing for the majority, first concludes the police had probable cause to arrest. The partygoers had argued that the D.C. crime of “unlawful entry” for which they were arrested has as an element that they “knew or should have known” that the owner of the property didn’t want them there. Given that the officers had heard, from multiple sources, that Peaches held herself out as the rightful tenant and had invited the attendees, the partygoers asserted there could not be probable cause they knew they were not supposed to be in the house.
The Court responds that many other facts–including Peaches’s evasive statements, the condition of the house, and some of the partygoers’ flight from police and inconsistent statements about the nature of the party–supported reasonable inferences that the people in the house knew they were not authorized to be there. Though innocent explanations were possible, the Court says, “probable cause does not require officers to rule out a suspect’s innocent explanation for suspicious facts.” Slip op. at 12.
Though the lack of probable cause resolves all claims, the Court goes on to fault the D.C. Circuit’s analysis of qualified immunity as well. Slip op. at 13-19.
Justice Sotomayor concurs, agreeing that qualified immunity shielded the defendants from liability and that the Court should not have reached the Fourth Amendment merits.
Justice Ginsburg also concurs, noting the officers’ actual decision to arrest was not guided by the probable cause outlined in the Court’s opinion, but by their Sergeant’s mistake as to what the statute criminalized; also, they were booked not for “unlawful entry” but for disorderly conduct–for which there was apparently no basis. She allows these facts don’t matter under existing Supreme Court cases, but suggests maybe they should:
The Court’s jurisprudence, I am concerned, sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection. A number of commentators have criticized the path we charted in Whren v. United States, 517 U. S. 806 (1996), and follow-on opinions, holding that “an arresting officer’s state of mind . . . is irrelevant to the existence of probable cause,” Devenpeck v. Alford, 543 U. S. 146, 153 (2004). See, e.g., 1 W. LaFave, Search and Seizure §1.4(f), p. 186 (5th ed. 2012) (“The apparent assumption of the Court in Whren, that no significant problem of police arbitrariness can exist as to actions taken with probable cause, blinks at reality.”). I would leave open, for reexamination in a future case, whether a police officer’s reason for acting, in at least some circumstances, should factor into the Fourth Amendment inquiry. Given the current state of the Court’s precedent, however, I agree that the disposition gained by plaintiffs-respondents was not warranted by “settled law.” The defendants-petitioners are therefore sheltered by qualified immunity.