A Crack in the Whren Wall?

Earlier today, the Supreme Court decided District of Columbia v. Wesby, a case about whether police had probable cause to arrest some D.C. partygoers who were in a vacant house without permission of the owner.  It was clear that the plaintiffs manifested the actus reus of the crime of trespassing and the case centered around whether police had probable cause to believe the partygoers knew or should have known that they did not have the owner’s consent to be there.  The case involves some, um, interesting facts.  The partygoers were invited to the house by a woman known only as “Peaches” or “Tasty,” and the police found in the house “a makeshift strip club” where “[s]everal women were wearing only bras and thongs, with cash tucked into their garter belts.”  (Well, make up your mind, Justice Thomas; were they “wearing only bras and thongs” or were they also wearing garter belts?)  I was not surprised, particularly after listening to the oral argument, that the Court held that the officers had probable cause and, separately, that they were protected by qualified immunity in believing that they had probable cause.

The surprise came at the end.  Justice Ginsburg wrote a two-page opinion concurring in the judgment in part.  She concluded that the officers were protected by qualified immunity, given that the arrests of the partygoers were supported by probable cause under current law.  However, Justice Ginsburg wrote separately to “to question whether th[e] Court, in assessing probable cause, should continue to ignore why police in fact acted.”  Those steeped in Criminal Procedure likely read this with a raised eyebrow, for Justice Ginsburg was referring to the Court’s unanimous 1996 opinion in Whren v. United States.  Whren rejected the argument that police officer motives were relevant to determining whether there was probable cause.  Instead, the Court held, probable cause is a wholly objective standard, and the motives of a police officer in acting upon probable cause are irrelevant.

Here is the relevant passage from Justice Ginsburg’s opinion today:

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.

Justice Ginsburg had joined the Whren opinion without comment so the fact that she is beginning to have qualms about it over twenty years later is big news.  And the fact that perhaps the biggest fan of Whren, its author Justice Scalia, is no longer on the Court might give the Justices more freedom to re-visit the issue.  On the other hand, no other Justice, not even the usual suspects, joined Justice Ginsburg’s opinion today.  Time will tell but Justice Ginsburg’s separate opinion today might be the first crack in the Whren wall.