The unclearly established rule against unreasonable searches and seizures.

• Author: Chun, Brian H.
• Position: Transparent Adjudication and Social Science Research in Constitutional Criminal Procedure

Wilson v. Layne, 119 S. Ct. 1692 (1999)

1. INTRODUCTION

   In Wilson v. Layne,(1) the Supreme Court unanimously held that law enforcement officers violate the Fourth Amendment when they allow members of the media to accompany them into a private home during the execution of a search warrant. The Court declared that such actions on the part of law enforcement officers are unreasonable.(2) Nevertheless, the Court held that the officers in Layne were entitled to a defense of qualified immunity because the violated right was not "clearly established" at the time of the violation.(3) According to the Court, a reasonable law enforcement officer could have believed, at the time of the violation, that she was not violating any law by allowing the media into a private home during the execution of a warrant.(4)

   This Note argues that the Supreme Court correctly held that federal and state law enforcement officers violated the Fourth Amendment when they allowed two members of the media to accompany them into the petitioners' home. This intrusion upon the petitioners' privacy was unreasonable because the media presence went beyond the clearly stated bounds of the warrant.(5) This Note also argues, however, that the Court erroneously held that the law enforcement officers in Layne were entitled to a defense of qualified immunity. The law was "clearly established" at the time of the violation such that a reasonable officer should have known that the actions at issue in this case would constitute a violation of the well-established principles of the Fourth Amendment.

2. BACKGROUND

   1. THE FOURTH AMENDMENT: NO UNREASONABLE SEARCHES AND SEIZURES

      The Fourth Amendment to the United States Constitution provides that:

      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.(6) The protection guaranteed in the Fourth Amendment is much older than the Amendment itself and is rooted in the common law of England.(7) Semayne's Case, perhaps the most cited English case in this context, is famous for the statement that "the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose."(8) This sentiment is echoed in subsequent English cases(9) as well as in William Blackstone's Commentaries on the Laws of England.(10) While the Supreme Court has never held that the Fourth Amendment protects a zone of privacy generally, it has made clear in a long line of cases that one of the central purposes of the Fourth Amendment is to protect a zone of privacy within the home from unwarranted and unreasonable government intrusion.(11) To hold that there has been a violation of the Fourth Amendment, a court must find that there was government action,(12) that there was in fact a search or seizure,(13) and that the search or seizure was unreasonable.(14) As the first two elements are not at issue in this case, this Note will focus on the third requirement.

      A search or seizure can be unreasonable in a number of ways, with perhaps the most obvious being a warrantless search without probable cause.(15) Even with a warrant, however, a search can still be unreasonable. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,(16) the Supreme Court stated in a footnote that the Fourth Amendment requires that an officer executing a search warrant stay strictly within the bounds set by the warrant.(17) Five years later in Andresen v. Maryland,(18) the Court warned that responsible officials must assure that searches and seizures "are conducted in a manner that minimizes unwarranted intrusions into privacy."(19) Thus, the Court began to make clear the proposition that a warrant alone would not suffice to make an intrusion into the privacy of a home reasonable. In Arizona v. Hicks,(20) the Court held that police actions in the execution of a warrant must be related to the objectives of the authorized intrusion.(21) Similarly, in Horton v. California,(22) the Court held that "[i]f the scope of the search exceeds that permitted by the terms of a validly issued warrant or the character of the relevant exception from the warrant requirement, the subsequent seizure is unconstitutional without more."(23)

      Thus, unless otherwise specified by the warrant, police officers may not allow third parties to enter a home if the officers do not need third-party assistance.(24) Such an action would be unrelated to the objectives of the authorized intrusion and would therefore be in violation of the Fourth Amendment.(25) In Bills v. Aseltine,(26) which was decided only five weeks before the events at issue in Layne occurred, the Court of Appeals for the Sixth Circuit held that law enforcement officers violated the Fourth Amendment when they allowed a security guard to enter the plaintiff's home to perform a search that was not authorized by the search warrant. The warrant at issue authorized a search for narcotics only and the security guard was not present for the purposes of aiding in this search.(27) Significantly, the holding in Bills finds support in a federal statute which details the persons authorized to serve a search warrant.(28) That statute, under the heading "Persons authorized to serve search warrant," provides:

      A search warrant may in all cases be served by any of the officers mentioned in its direction or by an officer authorized by law to serve such warrant, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution.(29) Thus, the presence of the security guard violated the Fourth Amendment because the purpose of his presence was not to aid the officers.(30)

   2. QUALIFIED IMMUNITY GENERALLY

      Once a person's rights under the Fourth Amendment have been violated, the next step for a court is to determine the remedy.(31) In most cases, the person whose right is violated is a criminal defendant and the remedy is typically brought about through the use of the exclusionary rule.(32) In a civil case, however, in which a plaintiff brings an action against government actors for violation of her Fourth Amendment right against unreasonable searches and seizures, the remedy obviously must be quite different. In such cases, the admissibility of evidence is not an issue.(33) The codification of the Civil Rights Act of 1871, 42 U.S.C. [sections] 1983, creates a federal cause of action against state actors who have violated federal law,(34) while Bivens creates an analogous cause of action against federal actors.(35) In Layne, petitioners sought damages from state respondents under [sections] 1983 and from federal respondents under Bivens.(36) Petitioners were not seeking to challenge the admissibility of any evidence. Rather, they were seeking redress in the form of monetary damages for the invasion of their privacy.

      Defendants in a [sections] 1983 or a Bivens action are, however, entitled to a defense of qualified immunity if the allegedly violated right was not "clearly established" at the time of the violation.(37) The first recognition by the Supreme Court of this right of qualified immunity, for ordinary government employees came in Harlow v. Fitzgerald.(38) The Court held that government officials performing discretionary functions are "shielded from liability for civil damages insofar as their conduct does not violate `clearly established' statutory or constitutional rights of which a reasonable person would have known."(39) The Court further refined this standard five years later in Anderson v. Creighton,(40) a case in which a homeowner brought an action against an FBI agent because of a warrantless search. The Court held that a defense of qualified immunity will fail if the right allegedly violated was "clearly established" at the time of the violation such that a reasonable official could have believed that her actions were within the bounds of the law.(41) However, the Court added: "[t]his is not to say that an official action is protected by qualified immunity unless the very act in question has been previously held unlawful, but it is to say that in light of preexisting authority the unlawfulness must be apparent."(42) This holding was reinforced in United States v. Lanier,(43) in which the Court explained that the qualified immunity test is essentially the same as the "fair warning" test in criminal proceedings.(44) The purpose of the defense is to give the defendant fair warning that his action will result in liability.(45) However, the Court also explained that fair warning does not necessarily require that a factually indistinguishable case must have already come before the adjudicating court.(46) According to the Court, a right that has been defined in general terms can still clearly establish the law.(47)

   3. QUALIFIED IMMUNITY IN THE CONTEXT OF MEDIA ENTRY INTO HOMES

      Only three federal appellate court cases prior to Layne dealt with the question of qualified immunity in the context of media entry into private homes during the execution of a warrant.(48) In the first case, Ayeni v. Mottola, the Court of Appeals for the Second Circuit held that an objectively reasonable officer could not have concluded that inviting a television crew to participate in the search of a home was lawful and that any officer engaging in such conduct was not entitled to qualified immunity.(49) In Ayeni, law enforcement officers entered the apartment of the plaintiff to search for specked evidence of credit card fraud pursuant to a warrant.(50) In doing so, the officers permitted a CBS television crew from "Sweet Stories," a weekly news magazine program, to enter the home and videotape the search.(51) The court of appeals emphasized the importance of the privacy right...