A Stitch in Haste

The Supreme Court has handed down yet another troubling Fourth Amendment case, one which seems to have been overlooked by the blawgosphere. That’s unfortunate because this new case, Muehler v. Mena (PDF – 22 pages), when coupled with the Court’s atrocious recent holding in Illinois v. Caballes, signals a serious long-term threat to the very notion of probable cause as a check on police power in this country.

The facts of Mena were straightforward:

[Police] obtained a search warrant for 1363 Patricia Avenue that authorized a broad search of the house and premises for, among other things, deadly weapons and evidence of gang membership. In light of the high degree of risk involved in searching a house suspected of housing at least one, and perhaps multiple, armed gang members, a Special Weapons and Tactics (SWAT) team was used to secure the residence and grounds before the search.

At 7 a.m. on February 3, 1998, petitioners, along with the SWAT team and other officers, executed the warrant. Mena was asleep in her bed when the SWAT team, clad in helmets and black vests adorned with badges and the word "POLICE," entered her bedroom and placed her in hand­cuffs at gunpoint. The SWAT team also handcuffed three other individuals found on the property. The SWAT team then took those individuals and Mena into a converted garage, which contained several beds and some other bed­room furniture. While the search proceeded, one or two officers guarded the four detainees, who were allowed to move around the garage but remained in handcuffs.

Mena, a legal immigrant (not to mention a woman) who was not the target of the search, was held in handcuffs for three hours.

The court held that being detained for "only" two or three hours did not violate Mena’s reasonable expectation of privacy. In other words, if you happen to innocently be in a house that is subject to a search warrant executed by a SWAT team, then you should "expect" to be detained in handcuffs for…well, for however long it takes.

Now combine this ominous holding with that of Caballes, which now gives police permission to perform a dog sniff of your vehicle without probable cause as long as you’re not "inconvenienced." But hold on -- Mena now holds that even three hours in handcuffs isn’t "unreasonable." How much of a cognitive leap will it be to argue, in light of Mena, that detaining you and your car for "just a few minutes” while the officer who pulled you over waits for the sniff dog to show up is also “reasonable”?

As I blogged previously regarding Caballes, there is no clear reason why mass sweeps, without individualized suspicion, of parked cars on public roads or in public garages by sniff dogs would now not be deemed permissible. Now add in Mena and all restraint on automotive searches and detentions may now be extinct.

It should be noted that Justice Stevens, joined by three other justices did submit a concurring opinion that would have left the issue of the reasonableness of the duration of the search to a jury (i.e., via a 42 USC 1983 lawsuit for violation of Mena's civil rights). Justice Stevens' presentation of the facts tells a much more detailed (and sympathetic) version for Mena (e.g., that she was barefoot and it was raining, hence she was hardly a flight risk).

The only other post I’ve seen on Mena is at Crime & Federalism, and it's good.

Related Post:
Supreme Court Upholds "Quick" Dog Sniff of Vehicle
Maryland's Idiot Judges: Police Dogs "Part of the Family"
A Search & Seizure Double-Play
Hair-Shaving and the Fourth Amendment
Tipping and the Bill of Rights