Legal Commentary

Michigan v. Fisher

By Orin Kerr

This morning the Supreme Court handed down a per curiam Fourth Amendment decision, Michigan v. Fisher. The facts of Fisher are pretty similar to Brigham City v. Stuart, 547 U. S. 398 (2006), and the Supreme Court reversed the decision suppressing the evidence on the strength of Stuart. The most surprising aspect of the case is the Court?s bothering to take it. The Court reviewed a state intermediate appellate decision after the state Supreme Court denied review. So my overall take is that this seems like error-correction just to make sure the state Supreme Courts are paying attention.

Perhaps the most interesting aspect of the case is the dissent by Justice Stevens, joined by Justice Sotomayor. After noting the factual testimony at the hearing, which convinced the trial court to suppress the evidence, Justice Stevens says the following:

Today, without having heard [the trial] testimony, this Court decides that the trial judge got it wrong. I am not persuaded that he did, but even if we make that assumption, it is hard to see how the Court is justified in micromanaging the day-to-day business of state tribunals making fact-intensive decisions of this kind. We ought not usurp the role of the factfinder when faced with a close question of the reasonableness of an officer?s actions, particularly in a case tried in a state court. I therefore respectfully dissent.

Justice Stevens doesn?t like summary reversals, and he frequently dissents from them. So perhaps this paragraph signals a dissent from the decision to review the case at all more than a view of the legal merits.

To the extent it is making a legal argument, though, I don?t quite see the argument. How is it ?micromanaging day-to-day business? to grant a cert petition filed at the end of the state review process? Given that reasonableness is ultimately a legal question, how is the Court ?usurpring the role of the factfinder?? Further, why does it matter that the decision reviewed is state or federal? The lower court was applying the federal Constitution. Is Stevens suggesting that state court interpretations of the federal constitution are entitled to deference? Justice Stevens isn?t known for his passion for federalism, so this seems like an unusual context to raise federalism concerns.

On the other hand, Justice Stevens? opinion in this case shares some themes with his solo dissents in Fourth Amendment qualified immunity cases like Scott v. Harris, 550 U.S. 372 (2007), and Brosseau v. Haugen, 543 U.S. 194 (2004) . Those cases involved the reasonableness of a use of force under the Fourth Amendment. In both cases Justice Stevens wanted the jury, rather than the Court, to answer reasonableness.

Alternatively, perhaps that last paragraph of Michigan v. Fisher goes only to the question of whether the Court should have reviewed the case at all. That?s possible, but I?m not entirely sure one way or the other.

Full post as published by The Volokh Conspiracy on December 07, 2009 (boomark / email).