District of Columbia v. Wesby

This §1983 action arose out of the allegedly unconstitutional arrest of a number of individuals in a vacant house Washington DC. Police responded to a noise complaint and found the interior of the house in disarray, with a number of individuals partying inside. Officers reported smelling marijuana, observing beer bottles and liquor, and what appeared to be a “makeshift strip club” inside. Upon questioning, the partygoers gave conflicting accounts of who authorized them to party inside of the house. Some stated that they were there for a bachelor party, but were unable to identify the bachelor. Other said they were given permission to party there by a woman named “Peaches,” who the officers contacted by phone. Peaches refused to return to the scene, and ultimately admitted over the phone that she did not have permission to use the house.

The officers arrested the partygoers and ultimately charged them with disorderly conduct. They filed suit under 42 USC § 1983, alleging that they were arrested without probable cause. The partygoers prevailed in the district court, which held that the officers lacked probable cause to arrest the partygoers, in part because the law of unlawful entry “requires evidence that the intruder knew or should have known, upon entry, that such entry was against the will of the owner.”

The Supreme Court reverses the lower court, holding that the officers had probable cause to arrest the partygoers. The Supreme Court points to the condition of the house (vacant, no furniture, filthy) as well as the partygoers conduct (providing evasive answers, hiding when police arrived) to support the officers’ conclusion that the partygoers lacked permission to be on the premises, and that they knew they lacked such permission. The Supreme Court criticized the lower court’s failure to consider the totality of circumstances presented to the officers, and that the court’s reliance on potentially innocent explanations for each suspicious factor was an improper “divide-and-conquer” approach.

In her concurring opinion, Justice Ginsburg makes a few interesting comments about the Court’s Fourth Amendment precedents. She states that this case has led her “to question whether this Court, in assessing probable cause, should continue to ignore why police in fact acted.” Justice Ginsburg notes that the officers’ testimony included what appears to be a complete misapprehension of the law, which is ignored in the Court’s Fourth Amendment analysis pursuant to Whren v. United States and its progeny. Justice Ginsburg expresses concern that “the Court’s jurisprudence . . . sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection.” Justice Ginsburg suggests that the Court should “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.”

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