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Keeping up with rulings from the United States Supreme Court is just as important to us as blogging about relevant practitioner issues. Please use this page as a way to stay updated on the changes in the Criminal Law area as we work to research, analyze, predict, and summarize the decisions of the Supreme Court. 

 Recent Supreme Court Cases


Peaches and Probable Cause: A Summary of District of Columbia v. Wesby:


No. 15-1485

On October 4, 2017, the Supreme Court heard oral argument in an appeal from the United States Court of Appeals for the District of Columbia that questions the standard for probable cause when police arrest non-residents of a vacant house who are unaware that they lack permission to be there. Around 1:00 am on March 16, 2008, the District of Columbia Metropolitan Police Department (“MPD”) was notified about a raucous house party by a nearby neighbor. The resident informed police that the house had been vacant for months. Police arrived at the house shortly after the complaint was made and heard loud music coming from inside. Upon knocking and entering, police observed activity that was consistent with a strip club for profit.

            Several officers on the scene interviewed the partygoers, and determined that none of them owned the house or knew who the owner was. Some of the attendees told police that they were there for a birthday party, while others claimed to be there for a bachelor party, yet none of those questioned were able to name a guest of honor. Several of the partygoers also told the officers that a woman named “Peaches” or “Tasty” had given them permission to be in the home, but when “Peaches” was contacted via telephone by police, she was evasive and continuously hung up on them. Police were ultimately able to reach the true homeowner, who denied giving anyone permission to enter the home, and confirmed that the house had been vacant since the previous owner passed away. As a result, the officers arrested all of the attendees for trespassing, although prosecutors ultimately declined to press charges.

            Sixteen out of the twenty-one attendees arrested filed suit in the U.S. District Court for the District of Columbia, alleging violations of the Fourth Amendment and common-law torts based on the alleged lack of probable cause for their arrests. The officers argued that they had probable cause to arrest the partygoers for trespassing, and that regardless of whether or not the standard for probable cause was met, they were entitled to qualified immunity since it was reasonable for the officers to believe they had probable cause given the unique facts of this case and because they did not contravene the law. The District Court found that the MPD officers lacked probable cause to arrest the partygoers for trespassing because the information that the police learned at the scene did not suggest that the attendees knew or should have known that they were on the property without permission from the owner. The District Court also refused to extend qualified immunity to the officers after finding that the law was clear that attendees would have had to have known or have reason to know that they were on the property without permission.

            The Court of Appeals for the District of Columbia agreed with the lower court, again finding that the officers lacked probable cause to arrest the partygoers and were not eligible for qualified immunity. In denying the District of Columbia’s petition for rehearing en banc, the D.C. Circuit stated that “[t]he bare, unsupported possibility that an officer might have disbelieved the partygoers when they said they had been invited is not ground for arrest – nor for qualified immunity.” However, the four judges that dissented from the denial of rehearing argued that the officers should have received qualified immunity in order to protect MPD officers’ ability to make credibility judgments on the scene.

            At oral argument, the Solicitor General for the District of Columbia, Todd Kim, asked the Supreme Court to keep in mind that the standard for probable cause takes into account the practical obstacles that officers face when making an arrest, including “an inability to look into the minds of suspects offering innocent explanations for suspicious conduct.” Solicitor General Kim argued that a look at the totality of the circumstances available to police at the scene supports a finding of a fair probability that the partygoers were trespassing. Justice Sotomayor and Breyer seemed to disagree with the Solicitor General’s arguments, as both justices pointed out that most people today who are invited to a party at a residence do not ask whether or not they are actually permitted to be at that residence. Justice Kagan also pointed out that the circumstances that led police to determine that the partygoers were trespassing, such as the sparse furnishings in the home and trash on the floor, may have looked totally different from the partygoers perspective – coming across instead as usual circumstances of a party environment.

            The attorney for the partygoers, Nathaniel Garrett, attempted to capitalize on that line of discussion, asserting that accepting an invite for a raucous party does not normally cause the attendee to consider whether or not they have legal permission to attend automatically. Mr. Garrett was swiftly interrupted by Chief Justice Roberts, who reminded the counselor that there appeared to be more than just a “raucous party” going on. Additionally, Justice Breyer switched his tone by suggesting that the police officers were aware of a problem with vacant houses in that particular neighborhood, and as a result, may have had a reasonable conclusion that the house was vacant that was sufficient create probable cause. At that point, the discussion changed direction when Justice Alito asked Mr. Garrett “whether police would have probable cause to arrest partygoers if a party that was otherwise identical to the one at the heart of this case instead took place in an affluent suburb of Washington.” Mr. Garrett responded that those circumstances would cause the case to be closer since officers would take into consideration the condition of the house that may be different from that in a lower status neighborhood. Justice Gorsuch disagreed with the idea that police should have to distinguish from different neighborhoods when deciding to make an arrest, and rejected the idea that furniture would differ dramatically between wealthier and poorer neighborhoods to be influential in the probable cause determination.


On the issue of qualified immunity, Solicitor General Kim argued in support of the D.C. Circuit dissenting opinion that found sufficient probable cause for the arrests demonstrated the officer’s entitlement to qualified immunity. On the opposite side, when asked by Justice Ginsburg, Mr. Garrett argued that the police officers were liable because they were plainly incompetent in finding probable cause for the arrests since there was nothing at the scene to suggest that the partygoers knew that they were trespassing. In response, Justice Kagan pointed to other D.C. Circuit cases where trespass convictions were upheld despite the defendants’ reasons for their presence on the property. At the end of the session, the justices who had spoken during the hour seemed to be conflicted on the probable-cause question; however, it is hard to imagine that a majority of justices would find that the officers acted so incompetently that qualified immunity would not apply.

            The Court’s decision could have a profound impact on the limits of an individual officer’s discretion when evaluating the credibility of a suspect. D.C. Attorney General Karl A. Racine worries that, should the Court uphold the D.C. Circuit’s decision, “[o]fficers will second-guess themselves and forgo enforcement of the law, fearing that a judge…might make a different credibility judgment and then hold them personally liable.” Additionally, several other states filed amicus briefs out of fear that failing to extend qualified immunity to the officers in this case would erroneously narrow the definition of qualified immunity that would prevent government officials from adequately doing their jobs. However, recent research has indicated that qualified immunity may not be accomplishing the goal that it was intended to achieve. Those on both sides of the argument will be eager to see how the Court rules, and a decision is expected sometime in the summer of 2018.

Written By: Kaitlin Bigger 

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