The United States Supreme Court issued its opinion in District of Columbia v. Wesby on Monday, holding that police officers had probable cause to arrest 16 people for unlawful entry after finding them reveling in a vacant house without the permission of its owner. The court further held that even if one assumed the officers lacked probable cause, they were entitled to qualified immunity because there was no clearly established law that rendered their actions unreasonable. The D.C. Circuit and the trial court had ruled otherwise, leading to a compensatory damages award of nearly $700,000 for the plaintiffs.
While trial courts are regularly called upon to evaluate whether facts known to an officer provide probable cause of criminal activity, it is less common for the Supreme Court to engage in such factbound determinations. Thus, the analysis in Wesby, whose language doubtless will soon be cited in the North Carolina reporters, warrants a closer look.
The report. Around 1 a.m. March 16, 2008, a caller phoned the Metropolitan Police Department in Washington, D.C. to complain about loud music and illegal activities at a vacant house in his neighborhood. Police traveled to the house, where they heard loud music playing inside. They knocked, and someone opened the door to let them in.
What the officers found. The house smelled of marijuana, and its dirty floor was littered with beer bottles and cups of liquor. There was no furniture save for a few metal chairs. In the living room, women wearing only bras and thongs with cash tucked in their garter belts were giving lap dances while people holding cash and alcoholic beverages looked on.
When the officers came in, some of the partygoers ran from the living room to other parts of the house.
Upstairs, officers found a naked woman and several men in a bedroom. A bare mattress and open condom wrappers were on the floor. A used condom was on the windowsill.
The officers found one person hiding in an upstairs closet and another in a bathroom. In all, there were 21 people inside the house.
What the partygoers said. Some of the people in the house said they were there for a bachelor party, though no one could identify the bachelor. Everyone there claimed to have been invited, but no one could say who invited them. Two women who were working at the party said that a woman named Peaches was renting the house and had given them permission to be there. Peaches was not at the party, but one of the women gave the police officers her number.
Peaches. Peaches first told the officer that she was renting the house and that she had given the partygoers permission to be there. She later admitted that she did not have permission to use the house.
The homeowner. The officers contacted the owner of the house who said he had been trying to negotiate a lease with Peaches, but that they had not reached an agreement. He said that he had not given Peaches permission to use the house.
The officers then arrested the partygoers for unlawful entry. They took them to the police station, where they were instead charged with disorderly conduct. All of them were released, and all of the charges were eventually dropped.
Procedural history. Sixteen of the people arrested sued the District of Columbia and five of the arresting officers in federal district court for false arrest, alleging that they were arrested without probable cause. The district court concluded that the officers lacked probable cause to arrest because nothing they learned in their investigation suggested that the partygoers knew or should have known they were entering against the owner’s will – an element of unlawful entry under state law. The court further concluded that the officers were not entitled to qualified immunity. A divided panel of the D.C. Circuit affirmed, with the majority viewing Peaches’ invitation as “central to our consideration of whether a reasonable officer could have believed that the Plaintiffs had entered the house unlawfully.” The circuit court explained: “[I]n the absence of any conflicting information, Peaches’ invitation vitiates the necessary element of Plaintiffs’ intent to enter against the will of the lawful owner. A reasonably prudent officer aware that the Plaintiffs gathered pursuant to an invitation from someone with apparent (if illusory) authority could not conclude that they had entered unlawfully.” Wesby v. District of Columbia, 765 F.3d 13, 21 (D.C. Cir. 2014), rev’d, ___ U.S. ___, No. 15-1485, 2018 WL 491521 (U.S. Jan. 22, 2018).
Analysis. The Supreme Court, in an opinion written by Justice Thomas, began by noting that a warrantless arrest is reasonable if the facts—viewed from the standpoint of an objectively reasonable officer—provide probable cause to believe that the suspect committed a crime in the officer’s presence. Probable cause “requires only a probability or substantial chance of criminal activity, not an actual showing of such activity,” and, as such, is “not a high bar.” Slip op. at 7 (internal quotations omitted). The Court acknowledged that an arrest is lawful if an officer has probable cause to arrest for any offense, not merely the offense cited. For purposes of its analysis in Wesby, however, the Court considered only the offense of unlawful entry.
The crime. To prove unlawful entry, a misdemeanor in the District of Columbia, the government must show that the person (1) entered or attempted to enter public or private premises or property; (2) without lawful authority; (3) against the express will of the lawful occupant or owner; and (4) that the defendant knew or should have known that his entry was against the will of the lawful occupant. Wesby, 765 F.3d at 19–20 (D.C. Cir. 2014).
The issue. Everyone agreed that the partygoers entered the house against the will of the owner. The plaintiffs contended, however, that the officers lacked probable cause because the officers had no reason to believe that the partygoers knew or should have known their entry was unwanted.
The Supreme Court rejected that argument. Considering the totality of the circumstances, the court reasoned, the officers “made an entirely reasonable inference that the partygoers were knowingly taking advantage of a vacant house as a venue for their late-night party.” Slip op. at 7-8 (internal quotations omitted). The court based conclusion on two factors: (1) the condition of the house, which appeared vacant; and (2) the way the partygoers acted, which including smoking marijuana inside the house and trashing it, engaging in other “debauchery,” running from the police, and giving implausible explanations for their presence at the house. As for Peaches’ statement, the court noted that her “lying and evasive behavior gave the officers reason to discredit everything she had told them.” Slip op. at 10.
Where did the D.C. Circuit go wrong? The Supreme Court faulted the circuit court for engaging in an “excessively technical dissection of the factors supporting probable cause.” Slip op. at 11 (internal quotations omitted). The lower court erred, the Supreme Court said, by viewing each fact in isolation rather than together as part of the totality of the circumstances. The Supreme Court explained that “the whole is often greater than the sum of its parts—especially when the parts are viewed in isolation.” Id. Thus, while the condition of the house may not have been sufficient by itself to alert partygoers that they were uninvited, when combined with other factors, it contributed to probable cause for unlawful entry.
The Supreme Court also faulted the circuit court for dismissing any consideration of circumstances that could be consistent with innocent conduct, such as the drinking and lap dances, which the lower court said were consistent with a bachelor party, and the condition of the house, which the lower court characterized as consistent with Peaches being a new tenant. An officer is not required to rule out a suspect’s innocent explanation for suspicious facts in order to develop probable cause, the Court explained.
“[T]his kind of divide-and-conquer approach is improper. A factor viewed in isolation is often more readily susceptible to innocent explanation than one viewed as part of a totality.”
Slip op. at 12 (internal quotations omitted).
The circumstances in Wesby, said the Court, both suggested criminal activity and gave the officers “plenty of reasons to doubt the partygoers’ protestations of innocence.” Id.
The court also analyzed the doctrine of qualified immunity, determining, as noted above, that the officers were entitled to that protection
One way Wesby might be applied in NC. Wesby involves a probable cause determination rather than an evaluation of reasonable suspicion. Nevertheless, the manner in which the Supreme Court evaluated the totality of the circumstances in Wesby may inform our state courts’ consideration of whether an accumulation of otherwise innocent factors create reasonable suspicion to believe that criminal activity is afoot. The North Carolina Court of Appeals has, on more than one occasion, favorably cited the Fourth Circuit’s statement in United States v. Williams, 808 F.3d 238, 246 (4th Cir. 2015), that when determining whether reasonable suspicion exists in the context of a traffic stop, “the relevant facts articulated by the officers and found by the trial court, after an appropriate hearing, must in their totality serve to eliminate a substantial portion of innocent travelers.” This construct for considering potentially innocent explanations for suspicious conduct strikes me as somewhat inconsistent with Wesby, which criticized the D.C. Circuit’s failure to consider circumstances that are susceptible of innocent explanation.
What RBG said. Six justices, including the Chief Justice, joined Justice Thomas’s opinion. Justice Sotomayor concurred in part and concurred in the judgment as to qualified immunity, but said the court should not have reached the probable cause issue. Justice Ginsburg concurred in the judgment in part, agreeing that the officers were entitled to qualified immunity, but expressed concern that the Court’s jurisprudence “sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection.” Ginsburg, J., concurring, slip op. at 2. She stated that she “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.” Id. In other words, RBG is ready to rethink Whren v. United States, 517 U.S. 806 (1996), which established that an officer’s state of mind is irrelevant to the existence of probable cause. I’ll leave that possibility (which strikes me as kind-of-a-big-deal) for reexamination in a future blog post.