Wednesday, August 18, 2010

Beliefs and Motivations

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.

13 comments:

Publius the Clown said...

Hi, Professor Colb--I enjoyed your column and your post. It seems to me that you're arguing in favor of a subjective reasonableness standard, which would require that the individual officer who enters a house reasonably believe that the emergency aid exception applies. There may be an argument that that's what the law should be (although I think there are strong arguments to the contrary--see below), but it seems pretty clear that that's not what the law is (or was, pre-Fisher). On pages 3 and 5 of the Court's slip opinion in Fisher, the Court notes that Brigham City only requires "'an objectively reasonable basis for believing'" that the emergency aid exception applies (emphasis added). Wouldn't a ruling in favor of your position require overruling Brigham City? If that's the case, then the Court's issuance of a per curiam opinion doesn't seem very objectionable, because the opinion just re-affirms the Court's ruling on a "question that the Court has already decided" (as you put it).

Second, I think your comparison between intent/belief in the criminal law context and this context is interesting. But I do think that there are different interests at stake, when it comes to police searches, that might favor the current state of the law. In the face of facts that would make a belief that the emergency aid exception applied reasonable, a police officer shouldn't have to ask himself whether he has special knowledge, beyond that of a typical person, that might undermine his case and subject him to discipline or to a Section 1983 action. A slightly modified version of the film example you give in your FindLaw column actually tends to support this argument, I think; what if an officer hears screams and thinks, "Hmm, that could be someone in trouble, but it kind of sounds like a movie I just saw, so would I be able to justify my own belief in court?"

In other words, while a subjective reasonableness standard may make sense in the (probably very rare) instance in which the officer in question knew for certain that the emergency aid exception did not apply even though a reasonable person would have believed that it did, the objective reasonableness standard makes sense in the (I would think far more common) scenario in which a police officer thinks that the facts support an objective belief that the exception applies but is worried in the back of his mind that he might know something to defeat his claim of a subjectively reasonable belief. I'd argue that the close cases justify the objective reasonableness standard.

A final thought: in my view, the question here isn't whether "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," because that begs the question. If the Fourth Amendment standard is objective reasonableness, then a search conducted on the basis of an objectively reasonable belief wouldn't be "rights-infringing" in the first place.

Sam Rickless said...

Both the post and the Findlaw column are fabulous. To me, the moral of the story is that little words are important.

Here is the problematic statement in Fisher again:

"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."

The Court here says that the relevant test is whether *there was* an objectively reasonable basis for believing P. The Court then cites Brigham City for this claim. But here is the relevant statement in Brigham City:

"In these circumstances, the officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence in the kitchen was just beginning."

The Court does not here say that *there was* an objectively reasonably basis for believing P. What the Court says in Brigham City is that "the officers had" an objectively reasonable basis for believing P. There is a world of difference between these two locutions, enough of a difference to pose a serious risk to the probable cause requirement and wreak havoc in the criminal law, as you rightly suggest.

To say that *there was* a reasonable basis for believing P is to say that there were facts that, if believed, would have provided the officers with a good reason to believe P. To say that *the officers had" a reasonable basis for believing P is to say that the officers actually believed facts of this sort.

In Brigham City, it was true both that there was a reasonable basis for believing P and that the officers had a reasonable basis for believing P. The Brigham City Court did not *need* to distinguish between the locutions, because both of them applied. The funny thing is that the same is true of Fisher. Not only was there reason to believe that someone was seriously injured or might soon be seriously injured, but the most reasonable explanation of the officer's unwarranted entry into Fisher's home is that the officer believed at that time that someone was seriously injured or might soon be seriously injured. (The failure to call medical personnel is easily explained by the fact that the officer (i) did not actually see any injured person apart from Fisher, (ii) connected the blood on and in the car with Fisher's injury, (iii) saw that Fisher was likely not seriously injured, and (iv) likely thought that the mere possibility that future medical assistance would be needed was not sufficient to call for it at the time of the incident.)

So there was no reason for the Court to go beyond the Brigham City test. And yet it did so, by misreading what had been said in Brigham City. I truly hope that this was a casual error, and not an error motivated by the desire to "objectify" the Brigham City test.

Publius the Clown said...

"To say that *there was* a reasonable basis for believing P is to say that there were facts that, if believed, would have provided the officers with a good reason to believe P. To say that *the officers had" a reasonable basis for believing P is to say that the officers actually believed facts of this sort."

Prof. Rickless, I respectfully disagree with you here. Even from a linguistic perspective, I don't think there's a very big difference beween "there was" and "the officers had."

It seems to me that if the Court in Brigham City had wanted to say what you interpret it as saying, it would have simply said: "In these circumstances, the officers reasonably believed both that the injured adult might need help and that the violence in the kitchen was just beginning." This would have suggested that the requirement was subjective reasonable belief.

Also, from a legal perspective, the phrase "objectively reasonable" is a term of art with a particular meaning--a meaning that is distinct by definition from "subjectively reasonable."

This comes up all the time in, for instance, torts--the question in a battery case alleging offensive contact isn't whether the plaintiff himself, with his specific history, reasonably thinks that a contact was offensive, but whether an objectively reasonable person would have found the contact offensive.

So when the Court uses the phrase "objectively reasonable," it uses it with this background in mind, and I think that that makes your interpretation vulnerable.

Sam Rickless said...

Publius:

1. Linguistically, to say that there is an X is not to say that I or anyone else *has* an X. If you can't understand the difference between saying that there was an objectively reasonable basis for thinking that someone was injured and saying that Goolsby actually *had* this basis, then I don't know how to help you.

2. Sure, the Brigham City Court *might* have said that the officers "reasonably believed" etc. etc. But there is no reason to suppose that the Court could not have taken itself to be saying this very thing unless it used these very words! In my view, the Court said that the officers reasonably believed etc. etc. *by saying* that they *had* a reasonable basis etc. etc. If you read Brigham City carefully, you will see that the Court makes repeated references to what the officers knew or believed. Are you thinking that these references are simply by the bye?

3. Sure, "objectively reasonable" is a term of art. But that is not relevant to this controversy, except as providing some sort of explanation for how the Fisher Court could have been led to misread Brigham City. The point here is that there is a world of difference between saying that *there was* an objectively reasonable basis etc. etc. and saying that so-and-so *had* an objectively reasonable basis etc. etc. To say that X had an objectively reasonable basis is to say two things: (i) that there was an objectively reasonable basis, and (ii) that X had it. All of this is perfectly consistent with your (true) claim that "objectively reasonable" is a term of art. But, of course, because the term is often used in the sorts of contexts in which a distinction is being drawn between objective and subjective reasonableness, the use of the term can mislead, in just the way in which you (and the Fisher Court) were misled.

Publius the Clown said...

Professor Rickless,

To combine my response to your nos. 1 and 2: I agree that there is a basic linguistic difference between the sentences from Fisher and Brigham City. I disagree that the linguistic difference changes the legal meaning when comparing one sentence to the other, given the context: both sentences require a "reasonable basis for belief." You're arguing that Brigham City requires that the officer have a reasonable belief, but that's not the same thing; an officer might have a reasonable basis for belief but not actually believe.

And the per curiam opinion in Fisher is consistent with the rule that an officer have an objectively reasonable basis for belief. I think that the most common sensical reading of the Brigham City rule is that, if an officer is aware of facts that would cause a reasonable person to believe that the emergency aid exception applies, then it is objectively reasonable for the officer to enter a home.

The individual officer must know the facts that would form the reasonable basis of a belief, in order to have "had" the reasonable basis. This explains the Court's focus on what the officers knew in Brigham City. But the officer doesn't have to have the belief itself, because the belief and the basis for the belief are two different things, and because the reasonableness of the basis is determined according to an "objective[]" standard, without taking into account what the individual officer in fact believed.

There's no dispute in Fisher that Officer Goolsby observed the facts that arguably supported a reasonable belief that the emergency aid exception applied. Therefore, to return to your first point, and also to address your third point, Goolsby did have an "objectively reasonable basis" for that belief as long as a reasonable person would have believed based on the facts that Officer Goolsby knew.

If Goolsby had not observed these facts, and the Court had nevertheless determined that his entry of the home was reasonable because "there was" an objectively reasonable basis for this belief, then you would be right that the Court was misreading Brigham City and creating a new, more lax standard. But that's not what the Court did in Fisher; it merely noted that Goolsby's subjective belief was irrelevant because the facts he knew provided an objectively reasonable basis for the belief.

Sam Rickless said...

Publius:

Interesting. I think you are agreeing with me. Here is what I said earlier:

To say that *there was* a reasonable basis for believing P is to say that there were facts that, if believed, would have provided the officers with a good reason to believe P. To say that *the officers had" a reasonable basis for believing P is to say that the officers actually believed facts of this sort.

Now you say:

The individual officer must know the facts that would form the reasonable basis of a belief, in order to have "had" the reasonable basis.

This is really what I said (except you use "know" where I would use "believe", but that's not a big difference here).

As you say, we should distinguish between the proposition that counts as the basis and the proposition believed on that basis. To take a concrete example, Goolsby believed the following proposition:

(P1) There was blood on and in the car, and the car was parked in front of a house within which a person was shouting angrily and throwing things.

Proposition P1 is an objectively reasonable basis for believing the following second proposition:

(P2) Someone in the house is seriously injured or will soon be seriously injured.

I take the Brigham City test to require that Goolsby believe something like P1 (this is what it means to say that the officer must *have* a reasonable basis for believing P2), not that Goolsby believe P2, in order for his unwarranted entry to pass constitutional muster. So there IS a subjective component to the Brigham City test. Of course, there is also an objective component to the test: whatever it is that Goolsby believed must be an objective basis for concluding P2. But I never denied this.

The Fisher Court said something that goes beyond the Brigham City test. Let me quote the Court's opinion again:

"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."

The Fisher Court is saying here (a) that all of Goolsby's beliefs are irrelevant, and (b) that the Brigham City test requires no more than the EXISTENCE of an objectively reasonable basis for believing P2 (i.e., requires no more than the TRUTH of something like P1). This is just not in keeping with the Brigham City test.

One more thing. Given that Goolsby believed P1, and given that it is objectively reasonable to believe P2 on the basis of P1, and given that Goolsby is reasonable and capable of making reasonable inferences on the basis of his beliefs (something we may presume in the circumstances and have no reason to reject), it is overwhelmingly likely that Goolsby believed not just P1, but also P2. This is going to be true in most circumstances of this sort. In which case the Brigham City test is very close IN PRACTICE to a test that would require Goolsby to believe P2 in addition to P1. (Of course, there will be cases in which an officer believes something like P1 without believing P2, but they are unusual.)

Publius the Clown said...

Professor Rickless,

I agree with everything you say in your most recent comment up to the sentence that "[t]he Fisher Court said something that goes beyond the Brigham City test." So you're right that I actually agree with your statement that I'd disputed at the start of my first comment to you. My confusion was caused in part by your apparent agreement with Professor Colb. I actually think that you and I may agree with each other more than you agree with Professor Colb in a critical respect--more on that below.

Your P1 and P2 scheme is very helpful, and it crystallizes our remaining area of dispute. In short, I think that Fisher still requires that an officer believe P1, not just that P1 be true.

The complete sentence from Fisher that you quote reads: "Moreover, even if the failure to summon medical personnel conclusively established that Goolsby did not subjectively believe, when he entered the house, that Fisher or someone else was seriously injured (which is doubtful), 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." (Emphasis added.) In light of the italicized portion, I think that the phrase "what Goolsby believed" clearly refers to Goolsby's subjective belief in P2.

Also, this statement is part of the Court's response to Fisher's argument that "the officers here could not have been motivated by a perceived need to provide medical assistance, since they never summoned emergency medical personnel." In other words, Fisher was arguing that the officers must not have believed P2, because if they had, they would have called for medical assistance. The Fisher Court's rule should be read as a response to this argument about a belief in P2, so there's no reason to think that the Court was saying anything whatsoever about Goolsby's belief in P1. After all, as I said in my last post, there was no dispute in the case as to whether Goolsby believed P1--everyone agreed that he did--so there would be no reason for the Court to address what would happen in a scenario in which he didn't believe P1.

So for both a textual and a contextual reason, I would interpret Fisher's rule to be the same rule that Brigham City espoused.

And I agree with your articulation of the Brigham City test. (I'm not sure I would call the requirement that an officer believe P1 a "subjective component," but that's water under the bridge.) But this is where I think that you and I both disagree with Professor Colb. In her FindLaw column, the first sentence of the last paragraph under the heading "An Important Departure" says that, "[i]f 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." In other words, Professor Colb's problem with Fisher is that it permits an officer to enter a house (without a warrant) even if the officer does not believe P2. But you and I agree that Brigham City already permits this, meaning that Fisher isn't a "departure" at all in this regard.

So even if you and I disagree about whether Fisher eliminates the requirement that an officer believe P1, we agree that Brigham City didn't require an officer to believe P2, and I think we therefore agree that Professor Colb's primary complaint about Fisher rests on an incorrect premise.

Sam Rickless said...

Publius:

This has been very helpful. I actually think that you and I both agree with Prof. Colb more than you would like to admit. Prof. Colb will need to speak for herself, of course, but here is the statement of hers from the Findlaw column that works well with what we both now believe:

"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 question is what falls under the relevant "factual preconditions" here. Arguably both P1 and P2 do. I think that what Prof. Colb is *rightly* bemoaning is the fact that the Fisher Court appears to be saying that Goolsby need not have believed either (something like) P1 or P2 in order for his entry to have been constitutionally permissible. You are right that in one place in her column she focuses on P2. But this is a broader statement, and I believe that this is what Prof. Colb is really after.

As for the Fisher Court, it may be that it intended the statement that begins "the test, as we have said, is not what Goolsby believed..." to refer to P2, rather than to P1. Unfortunately, that is not what the relevant statement actually *says*. What the statement *says* is that the test does not concern *any* of Goolsby's beliefs. The reason is that the next clause refers to the existence of, and not the belief in, an objectively reasonable basis for P2.

As I suggested earlier, it is possible that this was an unintentional misreading or misstatement of the Brigham City test. But if, as I (and, as I think, Prof. Colb) suspect, it is part of a general desire on the part of some members of the Court to remove the need for subjective (motive- or belief-related) requirements of any kind from the relevant test, then we are well along on the sad road that Prof. Colb so ably described.

Publius the Clown said...

Professor Rickless,

This has been a really interesting and illuminating discussion.

In the passage you quote from Professor Colb, judging from the sentence that precedes the phrase where it first appears, I think that the phrase “factual preconditions” refers to the belief “that the resident was hemorrhaging at all”—that is, it refers to a belief in P2.

I read Professor Colb to be almost exclusively concerned with a belief in P2, and she appears to think that an officer had to believe in P2 pre-Fisher.

In her FindLaw column, Professor Colb says: “What the Court says . . . in Fisher, however, goes further [than Brigham City]. It says that it does not matter whether the police officer actually believes that anyone is in need of immediate intervention [i.e., believes P2], so long as some hypothetical reasonable officer could have believed it, given the circumstances.” This suggests that Brigham City had at least taken no position on whether an officer had to believe in P2.

She goes a step further in her blog post, stating that, “[p]rior to Michigan v. Fisher, the police officer . . . would still be performing a reasonable search or seizure, so long as he reasonably believed . . . that someone was in need of immediate emergency assistance.” This suggests that, before Fisher, the Court had affirmatively required that an officer believe P2, rather than that it had not decided the issue. (It’s unclear whether Professor Colb thinks that Brigham City, or some other case, requires this.)

She then ends her blog post by saying that the Court should have affirmed the Michigan Court of Appeals’ ruling in favor of defendant Fisher because Goolsby “did not in fact believe there was an emergency”—that is, that he did not in fact believe in P2.

Judging from your first comment, you and I both disagree with Professor Colb here, and agree/concur with the Court’s judgment in Fisher because, based on what Officer Goolsby knew, he had an objectively reasonable basis for believing P2, and that this sufficed to make his entry constitutional.

Here’s how I think things break down:

You, Professor Colb, and I agree that Brigham City requires that the officer believe P1.

You and I think that Brigham City does not require that an officer believe P2; Professor Colb thinks that it (or some other case) does.

You think that Fisher does not require a belief in P1; I think that it does; and it’s unclear what Professor Colb thinks. (I don’t think she takes a position.)

You, Professor Colb, and I agree that Fisher does not require that the officer believe P2.

Continued in next comment...

Publius the Clown said...

Continued from last comment:

On to our other remaining area of disagreement: you say that “it may be that [the Fisher Court] intended the statement that begins ‘the test, as we have said, is not what Goolsby believed...’ to refer to P2, rather than to P1. Unfortunately, that is not what the relevant statement actually *says*,” because of the “there was” clause that follows.

But consider that 1) on page 3 of its opinion, the Fisher Court summarizes Brigham City’s rule correctly and unambiguously (by noting that, in Brigham City, “we found it ‘plainly reasonable’ for the officers to enter the house and quell the violence, for they had ‘an objectively reasonable basis for belie[f]’” (emphasis added)); 2) the Fisher Court states that it’s engaging in a “straightforward application” of the emergency aid rule enunciated in Brigham City; and 3) the Court states that, “[j]ust as in Brigham City, . . . [the officers] found signs of a recent injury, perhaps from a car accident, outside. And just as in Brigham City, the officers could see violent behavior inside.”

So Fisher’s holding clearly rests on the fact that, just as in Brigham City, the officers knew P1-type facts. I understand that your argument is strictly linguistic, but the language you rely on is ambiguous. It can easily be read to imply that “there was an objectively reasonable basis for belie[f in P2] [of which Goolsby was aware].” Lower courts, when they interpret this clause, won’t look at it in a vacuum; they’ll look to the facts that motivate the holding.

Moreover, it would be unreasonable for the lower courts to find that Fisher changed Brigham City’s rule about P1 when the Fisher Court clearly indicates that it is simply following that rule.

Sam Rickless said...

Publius:

1. You may be right in your summary of where you, I, and Prof. Colb stand. You are presumably right about where you stand, you are right about where I stand. As for Prof. Colb, we will need to wait for her to weigh in, if she chooses to do so. I have given some reasons for thinking that she is more worried about the fact that the Fisher Court is on its way to removing *any* belief-component from the relevant test than she is about the difference between the Court's requiring belief in something like P1 and the Court's requiring belief in P2. But she will have to speak for herself on this one.

2. You are right that the Fisher Court in one place understands the Brigham City rule correctly. You are right that the Court states that it is applying the Brigham City rule. You are also right that the Fisher Court mentions P1-type beliefs. But, but, but....The problem is that there is a sentence in the Fisher opinion that lends itself to a very straightforward interpretation according to which even P1-type beliefs are irrelevant. The sentence, to use Justice Jackson's famous Korematsu simile, "lies about like a loaded weapon," ready for any future Court to use it to wipe any subjective component from the relevant test for good. And there are reasons to think that this will happen. First, SCOTUS has weakened or eliminated subjective components from the test in the past. Second, SCOTUS has since the Warren era sided with law enforcement in finding a greater and greater number of exceptions to the warrant requirement. Third, reading any belief component out of the Brigham City test will provide officers with greater leeway to enter private premises without a warrant. Surely you are familiar with the practice of selective quotation. It happens all the time, yes, even in SCOTUS opinions. So, my prediction. Some lower Courts will go with the *new* Fisher rule. Other lower Courts will go with the *old* Brigham City rule. SCOTUS may eventually step in and side with the former. It's a classic way for a Court to change the law without fanfare. I hope you're right, of course, but I am afraid.....

Publius the Clown said...

Professor Rickless,

I think we agree on basically everything at this point.

"The problem is that there is a sentence in the Fisher opinion that lends itself to a very straightforward interpretation according to which even P1-type beliefs are irrelevant.... Surely you are familiar with the practice of selective quotation.... SCOTUS may eventually step in and side with [the no-belief-in-P1-required view of the Fisher rule].

Yes, I agree that the Fisher language that we've been discussing, quoted selectively, could lead to the result you fear. For the reasons I've stated, if I sat on a lower court, I would not interpret the Fisher rule in this way. But that doesn't mean that some lower courts won't (in my view) misinterpret it--time will tell--nor does it prevent the Supreme Court from selectively quoting it and then explicitly announcing a no-belief-in-P1-required rule.

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