The Fourth Circuit Court of Appeals recently ruled (2-1) in Smith v. Munday, 848 F.3d 248 (4th Cir. Feb. 3, 2017), that a North Carolina officer was not entitled to summary judgment in a civil lawsuit for arresting the plaintiff allegedly without probable cause. This case is the subject of this post. Continue reading
Tag Archives: arrest
There aren’t very many federal cases about North Carolina probation. When we get one, I’m inclined to write about it. In Jones v. Chandrasuwan, __ F.3d __ (4th Cir. 2016), the Fourth Circuit announced a new rule about the level of suspicion required to arrest a probationer for a suspected probation violation. Continue reading →
This session, the General Assembly made some changes to the statute governing the fingerprinting of criminal defendants. Inside and outside the School of Government, people are divided about whether the statute now requires officers to arrest, rather than cite, individuals for misdemeanor marijuana possession offenses. Continue reading →
[Author’s Note: This post has been substantively edited to make corrections in response to helpful comments from readers.]
A person generally may not lawfully be arrested unless there is probable cause to believe he has committed a crime. But there are several exceptions to this rule. Most involve arrests made pursuant to an order for arrest issued by a judicial official. A judicial official may, for example, issue an order for the arrest of a defendant who fails to appear in court or who violates conditions of probation. See G.S. 15A-305(b). And there is one circumstance in which a law enforcement officer may, without a judicial order or warrant for the defendant’s arrest and without probable cause to believe a crime has been committed, arrest a defendant. That’s when the officer has probable cause to believe the defendant has violated a condition of pretrial release. G.S. 15A-401(b)(1),(b)(2)(f.). Continue reading →
The Seventh Circuit just ruled that the $30 booking fee charged to each arrestee in an Illinois town is constitutional. Markadonatos v. Village of Woodridge, __ F.3d __, 2014 WL 60452 (7th Cir. Jan. 8, 2014). I had never heard of booking fees and decided to learn a bit more about them, including where they are in effect and what courts have said about them.
Booking fees generally. Booking fees are in use in Illinois, Colorado, Washington State, Michigan, Minnesota, Ohio, Indiana, and California, at least. 36% of the jails that responded to this DOJ survey imposed booking fees. The fees work differently in different jurisdictions. The amount of the fee ranges from $12 to $100 or more. In almost all jurisdictions, the fee is refunded if the arrestee is acquitted or charges are dropped, though the procedure for seeking a refund varies. In some cases, arrestees who are mentally ill or indigent are exempt from booking fees.
Legal controversy over booking fees. Booking fees are often challenged in court, frequently due process grounds. Case outcomes have been mixed. See, e.g., Roehl v. City of Naperville, 857 F.Supp.2d 707 (N.D. Ill. 2012) (denying motion to dismiss constitutional challenge to booking fee); Hohsfield v. Polhemus, 2012 WL 603089 (D. N.J. Feb. 23, 2012) (unpublished) (analyzing booking fee along with daily jail fee and upholding both); Berry v. Lucas County, 2010 WL 480981 (N.D. Ohio Feb. 4, 2010) (unpublished) (upholding $100 booking fee that was to be refunded upon acquittal or applied to “pay-for-stay” obligations upon conviction); Gonzalez v. City of Fife, 2008 WL 2482010 (W.D. Wash. June 17, 2008) (unpublished) (denying city’s motion for summary judgment and questioning whether booking fee deprived arrestees of due process); Allen v. Leis, 213 F.Supp.2d 819 (S.D. Ohio 2002) (nonrefundable booking fee violated due process).
The Seventh Circuit Case. As noted above, the Seventh Circuit recently waded into the fray. The village of Woodridge is a suburb of Chicago. It has an ordinance that requires each arrestee to pay a $30 booking fee. Unlike many other jurisdictions that impose a fee, Woodridge provides no procedure for contesting or refunding the fee, even if the arrestee is subsequently acquitted.
Plaintiff Jerry Markadonatos was arrested for retail theft. He expressly admitted that there was a basis for his arrest as part of his entry into a deferred prosecution agreement. He completed the deferral and ultimately received an adjudication of “not guilty.” He did not receive a refund of the booking fee, and sued the village in federal court under 42 U.S.C. § 1983, alleging that the imposition of the fee without any means to contest it violated due process.
The federal district court dismissed his claim, and a divided panel of the Seventh Circuit affirmed. The majority rejected his procedural due process claim because (1) the booking fee is modest, (2) the fee is used to “offset at least a portion of the administrative costs associated with processing [an] arrest,” and (3) providing a hearing about the propriety of imposing such a small fee would be unreasonably burdensome for the village. The court also suggested that a person who was unlawfully arrested could ask a judge to refund the fee or could pursue other “state remedies,” though it acknowledged that this “opportunit[y]” is not “formally provided for in the [ordinance].” Furthermore, the court rejected the plaintiff’s substantive due process claim, finding that there is nothing that “shocks the conscience” about charging a modest amount to a person who was properly arrested, and ruling that Mr. Markadonatos lacked standing to make a claim on behalf of wrongly arrested people.
Judge Hamilton argued in dissent that the ordinance is unconstitutional on its face because it is “in substance a criminal fine” that is “imposed regardless of the validity of the arrest and regardless of whether there is any criminal prosecution or what its outcome might be.”
Booking fees in North Carolina? I’m not aware of any jurisdictions in North Carolina that charge booking fees. If you are, please post a comment or send me an email. There is, of course, a daily cost-of-confinement fee, which Jamie discussed here. In case any jurisdictions are considering booking fees, it is worth noting that a nonrefundable fee like Woodridge’s might not pass muster under State v. Webb, 358 N.C. 92 (2004) (invalidating nonrefundable appointment-of-counsel fee for indigent defendants). As noted above, even refundable fees are often challenged in court, and it seems to be an open question whether they generate enough revenue to offset the cost of administering them, though their prevalence may suggest that they do.
Yesterday the Supreme Court decided a case that one Justice called “perhaps the most important criminal procedure case that this Court has heard in decades.” A bare majority of the Court ruled that the police may take DNA from those arrested for, but not yet convicted of, “serious offense[s].” The case resolves a deep split among the lower courts; mostly resolves the constitutionality of the DNA-on-arrest statutes of 28 states, including North Carolina; and according to the dissent, is so deeply mistaken that if it is not wrong, “there is no such thing as error.” The case is Maryland v. King.
History. The defendant was arrested for a felony assault after menacing a group of people with a shotgun. Maryland law provides that DNA must be collected from those arrested for burglary or a crime of violence. (As in many other states, if the proceedings don’t end with a conviction, the DNA sample is destroyed, and there are safeguards associated with the use of the DNA profiles, such as a prohibition on using the DNA for purposes other than identifying those who committed a crime.) Accordingly, as part of the booking process, officers took a sample of the defendant’s DNA by swabbing the inside of his cheek. The defendant’s DNA profile was subsequently tested, and matched that from a previously unsolved rape. The defendant was charged with the rape and moved to suppress the DNA results, asserting that the officers conducted an unlawful search by collecting the sample. The trial court denied the motion and the defendant was convicted. The defendant’s appeals eventually led to the Supreme Court.
Outcome and lineup of Justices. A five-Justice majority ruled for the state. As is often true in Fourth Amendment cases, the lineup did not follow traditional political lines: Justice Kennedy wrote the majority opinion, joined by the Chief Justice and Justices Alito and Thomas . . . and Justice Breyer. Justice Scalia dissented, joined by Democratic appointees Justices Ginsburg, Kagan, and Sotomayor.
Majority opinion. The majority acknowledged that taking DNA is a search for Fourth Amendment purposes, and that a warrant, or at least some level of individualized suspicion, is usually required for searches. However, it noted that individualized suspicion is not always required, and ruled that it should not be required in this context given the minimal nature of the intrusion; the fact that the arrestee has already been taken into custody and so has a reduced expectation of privacy; and the important law enforcement interests served by DNA collection, including properly identifying the arrestee, potentially unearthing his true criminal record, and thereby being able to set appropriate conditions of release.
The majority also compared DNA analysis to less advanced identification techniques, such as photographing and fingerprinting, that are routinely used during the booking process. The Court reasoned that if those techniques generally are permissible under the Fourth Amendment, so too should DNA collection be allowed. Granted, DNA analysis is not as fast as fingerprinting and so may be less useful for rapid identification. But fingerprinting was not always fast, and DNA analysis is getting much faster, with new equipment expected to accelerate the process further.
Finally, the majority attempted to limit the scope of its ruling. First, it stated that “the necessary predicate of a valid arrest for a serious offense is fundamental.” Second, it noted that there was little risk that the collected DNA will be misused, since the sections of DNA analyzed contain only identifying information (not personal or health information) and the law strictly limits the purposes for which DNA profiles may be accessed.
Dissenting opinion. The dissent is classic Justice Scalia in high dudgeon, and he read the dissent from the bench in a show of dismay. Early on, he summarized: “Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime. It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous.”
The dissent attacked the majority’s claim that DNA analysis is useful for the identification of defendants, noting (1) that DNA testing can’t be conducted under Maryland law before arraignment, and so necessarily will not be available at the earliest pretrial stages, when the defendant’s identity is most likely to be in question, (2) that in fact DNA analysis wasn’t conducted in this case until several months after the defendant’s arrest, far too late to serve any identification purpose, and (3) that the resulting profile was submitted to CODIS, the nationwide DNA database, as the known sample of the defendant – not as a sample of an unknown, yet-to-be-identified individual.
As to the fingerprint analogy, Justice Scalia argued that fingerprinting is actually used to identify arrestees at or near the time of arrest, unlike DNA. And he questioned whether fingerprinting might not also be a Fourth Amendment search that should be permitted only with individualized suspicion, noting a lack of case law on point.
Finally, the dissent appealed to the risk of a slippery slope. The majority ruled that DNA collection is allowed only in connection with “serious offenses,” but the dissent noted that all criminal defendants need to be identified, not just those charged with major crimes, and so predicted that the ruling will later be extended. In fact, the dissent continued, identifying people would be helpful in a variety of contexts, so King opens the door to taking DNA samples from everyone who flies on an airplane, applies for a driver’s license, or attends public school.
Comments from others. The ACLU doesn’t like the ruling. A couple of big name constitutional law scholars do. Professor Orin Kerr thinks the case is important practically but not doctrinally and that the dissent is “overheated.” SCOTUSblog has a summary here.
My comments. King raises as many questions as it answers. First, what counts as a “serious offense” for which DNA collection on arrest is permitted? The Court didn’t say. It upheld Maryland’s law, which includes violent crimes and burglaries, but never said that was the constitutional floor. State DNA laws vary quite a bit in this regard. North Carolina’s statute, G.S. 15A-266.3A, limits DNA collection mainly to arrests for very serious crimes. But what about the collection of DNA upon arrest for the misdemeanor offense of cyberstalking? King casts some doubt on the propriety of that.
Second, is DNA collection upon arrest permitted only when authorized by a statute? In other words, may an officer in a state without a DNA-on-arrest statute nonetheless collect a sample of a murder arrestee’s DNA as part of the booking process? Or may an officer in a state with a statute, like North Carolina, collect DNA from a person arrested for a serious offense that is not listed in the statute, such as drug trafficking or a Class C embezzlement? Much of King’s rationale, including its discussion of the minimal nature of the intrusion and the arrestee’s reduced expectation of privacy, would apply even absent a statutory mandate requiring the collection of DNA. But the Court also emphasized the safeguards present in Maryland’s statute and its nondiscretionary nature. Without those, the outcome may have been different. At this point, I would advise officers to collect DNA only pursuant to the statute or a court order.
Third, must an arrestee’s DNA be destroyed and his DNA profile removed from law enforcement databases if he is not convicted? That was a feature of Maryland’s law, and it is in North Carolina’s statute as well. Apparently it is currently a requirement for states that participate in CODIS, as discussed in this helpful summary by the Urban Institute. But fingerprints taken upon arrest normally aren’t destroyed if charges are dismissed or the defendant is acquitted, and it isn’t clear whether that specific safeguard is constitutionally required for DNA.
Finally, are there other technologies that might fall under the rationale of King? Could the police take an arrestee’s retinal scan as a routine matter? Could they take a sample of an arrestee’s voice for voice biometrics?
As always, I welcome others’ thoughts, comments, and ideas.
An Egyptian-American activist/columnist/media personality named Mona Eltahawy was recently arrested in New York while defacing a pro-Israel subway advertisement. The entire incident was captured on video and can be seen here.
Over at the Volokh Conspiracy, Professor Orin Kerr focuses on Ms. Eltahawy’s demand that the arresting officer tell her what she was being arrested for. (As far as I can tell from the video, the officer didn’t respond to the demand.) As Professor Kerr puts it: “On TV, the officer announces the arrest, announces the crime of arrest, and then reads the suspect Miranda rights. But these are not actually constitutionally required.” In Devenpeck v. Alford, 543 U.S. 146 (2004), the Court stated that “[w]hile it is assuredly good police practice to inform a person of the reason for his arrest at the time he is taken into custody, we have never held that to be constitutionally required.” And an arrestee must be informed of his or her Miranda rights only if the police want to undertake custodial interrogation, which, in many cases, is not on the officers’ immediate post-arrest agenda.
It’s a good discussion that clears up some common misapprehensions about the law. But I should add that in North Carolina, G.S. 15A-401(c)(1)c states that an arresting officer must, “[a]s promptly as is reasonable under the circumstances, inform the arrested person of the cause of the arrest, unless the cause appears to be evident.” The provision hasn’t been cited or discussed much, but at least one case suggests that an officer normally should answer a direct question about the basis of the arrest. In State v. Ladd, 308 N.C. 272 (1983), an officer arrested the defendant and the defendant asked, “What for?” The officer responded, “You know why.” The court stated that “the officer’s indirect response to defendant’s query as to why he was being arrested was in violation of G.S. 15A–401(c)(2)c” and that the officer “should have directly and truthfully answered defendant’s question at the time it was asked.” See generally State v. Kinch, 314 N.C. 99 (1985) (“Last, defendant [argues] that he was not read his ‘rights’ when he was arrested. It is not necessary to read a defendant the Miranda rights in order to make a lawful arrest. Defendant was advised by the arresting officers that he was being arrested on a charge of rape in compliance with N.C.G.S. 15A-401(c)(2)[c].”).
Officers, what’s your practice regarding when you notify an arrestee of the basis of the arrest? What do you think of the conduct depicted in the video? (The officer’s conduct, I mean. Ms. Eltahawy’s conduct really speaks for itself.)
I can’t count how many times I’ve been asked when there will be a new edition of Arrest, Search, and Investigation in North Carolina. Ask no more: the Fourth Edition is now available. I have a copy on my desk right now. You can read more about the book, and order a copy for your desk if you’re so inclined, here.
Here’s how our publications department describes the new version:
This book explains the legal rules that govern an officer’s authority to enforce laws and to investigate criminal offenses. It also explains the basic rules of evidence in criminal cases. Footnotes to the text and and case summary sections include appellate cases and statutory references to assist in researching particular issues. This edition is newly organized placing supplementary material in footnotes at the bottom of the text instead of as notes at the end of each chapter. It also places relevant case summaries sections at the end of each chapter (for chapters 2-5) instead of placing these sections at the end of the book. The text is current with statutory and case law through June 2011 and replaces all prior editions and supplements. It contains a subject index and a case index.
Let me add that I am a big fan of the use of footnotes rather than end notes. The book is well-organized and a pleasure to use. And of course, it is massively researched and comprehensive. Thanks and congratulations to Bob for finishing it.
Finally, a word about pricing. The book costs $70. That’s not cheap, but in the world of legal reference books, it is an astonishing bargain. The book’s closest competitor is Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (4th ed. 2004-12). That’s also a good reference — but as you can see here, it costs $775.