By Sherry Colb
In my FindLaw column for this week, I discuss Michigan v. Fisher, a per curiam opinion from the Supreme Court, reaffirming the Court's commitment to the "emergency aid" exception to the Fourth Amendment requirement that police must obtain a warrant before entering a private home. In particular, I discuss the Court's statement that even if the officer who entered the home in question did not actually believe that there was an emergency calling for immediate aid, it would nonetheless have been reasonable for him to enter the home without a warrant so long as a reasonable person could have concluded from the circumstances that there was an emergency.
In my column, I discuss the Court's progression over time from the position that an officer's subjective motivations do not matter (e.g., an officer is stopping a motorist in the hopes of finding drugs, not because of the traffic violation that the officer just witnessed, is still acting lawfully in performing the stop) to the position that an officer's beliefs do not matter (e.g., the officer who does not believe the motorist he is stopping even committed a traffic violation is still acting lawfully in performing the stop). I suggest that the progression represents a departure that could potentially challenge the viability of the "probable cause" concept.
In this post, I want to consider an analogous motivation/belief split in the substantive criminal law context. Most criminal offenses carry an explicit or implicit requirement that the perpetrator possess some level of intention with respect to her actions and/or their consequences. For example, to be guilty of murder, you generally have to have either intended to kill, known that your actions would kill, or acted in the face of a known and great risk that your actions would kill. If instead, your actions cause someone's death without your having any sort of intent, knowledge, or recklessness with respect to that outcome, (for example, if you turn on a light switch that has secretly been wired to set off explosives in a neighboring apartment), then you will not be guilty of murder.
Though there are some strict liability crimes, in which you need have no intent or knowledge with respect to facts that make your conduct criminal, a perpetrator's state of mind is generally considered to be a fundamental component of what makes her actions wrongful, culpable, and worthy of criminal punishment.
Motivation operates at a different level. First, we tend to look to motive in trying to solve a crime. If a particular person had something that would have driven him to kill the victim, for example, this motive makes the person a potential suspect (and may help persuade the jury of his guilt, if he is tried). Second, a motive can make a crime seem more or less serious. For instance, in deciding whether to sentence a murderer to death or not, a motive can qualify as an aggravating factor (e.g., killing someone for financial gain) or a mitigating factor (e.g., killing to help spare the victim's family suffering under a tyrannical head of household).
Motive is not ordinarily a requirement, however, in getting a conviction in a criminal case. If I persuasively prove that you killed someone, I need not prove why you did it. Indeed, for conviction purposes, with some caveats, it does not really matter why you did it.
Why distinguish intent and motive? We do so because intent (or some level of awareness with respect to the likely consequences of one's actions) helps distinguish between innocent behavior and guilty behavior. The person who unknowingly turns on a light switch that causes an explosion is an innocent person, despite having been the causal agent of a death. Intent (or the beliefs under which an actor is operating) determines whether or not she is guilty at all.
Motivations, by contrast, generally turn someone who is already guilty into someone who is either worse than or not as bad as the typical guilty person. They do not ordinarily either independently establish guilt or negate it.
This is the theory behind hate-crime sentencing enhancements. If you beat up a person, absent an excuse or justification, you have committed a crime. If in doing so, you are motivated by the race of your victim, however, your crime is thought to be worse than it would otherwise be. This does not mean that it would be okay to beat someone up if you were motivated by something else; it just means that some motivations distinctively worsen your culpability.
To come back to police motivations versus beliefs, prior to Michigan v. Fisher, the police officer who was motivated by curiosity (or even the race of a motorist, as discussed in Whren v. United States) would still be performing a reasonable search or seizure, so long as he reasonably believed that a crime had been committed or that someone was in need of immediate emergency assistance. This is comparable to the situation in which, even if you are motivated by your desire to make society a less unequal place, you are still guilty of larceny if you knowingly steal a rich person's property, with the intention of permanently depriving that person of it.
Under Fisher, however, the officer need not even believe that an emergency requires immediate entry, quite apart from whether the officer's motive for entering is the emergency. By hypothesis, then, even if the officer does not believe someone committed a crime, she may perhaps lawfully arrest the person so long as there is evidence on the basis of which a different officer could reasonably conclude that the person committed a crime. This is comparable to the scenario in which a defendant shoots a person to death, not believing that the person posed any danger, and then claims self-defense. If another defendant could reasonably have believed the victim posed a danger, under the Fisher theory, this defendant could openly admit "I did not fear for my life or safety, but I killed the victim anyway" and be acquitted on the ground of self-defense.
In my view, this would be a negative development in the criminal law, just as it is an unfortunate development in constitutional criminal procedure. In practical terms, it will often be the case that a police officer or a criminal defendant will not admit that she either did not believe there was an emergency, or did not believe she was in any danger, respectively. If the reasonable person would have been concerned or afraid for her safety, then that will often be enough to admit the evidence/bring back a verdict of justifiable homicide.
Nonetheless, subjectivity is important, and one who truly does not believe in the facts the appearance of which would justify rights-infringing conduct should refrain from engaging in that conduct, and the law should say as much. In a case like Fisher, this would have enabled the trial court to find, as it did, that a police officer who did not act as though he believed there was an emergency did not in fact believe there was an emergency and therefore should have obtained a warrant before entering a private home. The Supreme Court should accordingly have allowed the Michigan rulings to stand.