A Fourth Defense

In the summer of 2005, two St. Paul, Minnesota police officers searched an empty house after a 911 hangup call. No evidence of a crime was apparent, but the graffiti on a teenager’s bedroom wall gave the officers pause. One of them went to the car for his camera, returned to the house to photograph the graffiti and filed the prints with the city’s anti-vandalism division. Months later, the police matched the photos to graffiti on a dumpster and arrested the teen for vandalism— a criminal offense. He was convicted and sentenced to pay restitution.

Interning with the Minnesota State Appellate Public Defender’s Office between his first and second years, Greg Scanlan ’08 was assigned to this “really juicy Fourth Amendment case.” He was thrilled. Did the two officers have probable cause? If there was no evidence of a crime, could they leave and return? Is it considered seizure to take photos of property? “You’d be lucky to get a case that has one point of law to be settled,” Scanlan said. “This one had three.”

Scanlan raised these questions in his brief and requested oral argument before the Minnesota Court of Appeals. He specifically wanted to address something avoided in a prior Minnesota Supreme Court case, State v. Fulford, that police must have probable cause to photograph property during a search. “Just because officers are in your house, albeit for a legitimate reason, doesn’t mean they get to take pictures of the opened mail that’s on your desk or the artwork on your walls,” Scanlan said.

To prepare himself, Scanlan consulted with Professor of Law Amy Adler, an expert in art law, and Professor of Clinical Law Randy Hertz, who demystified the courtroom procedures he would soon face. Scanlan also drew upon his first-year course work. “I did oral arguments for my Lawyering class, and a year later I’m doing it for real,” he said. “Only now it has consequences for someone’s life, and for the law.”

This June, the court unanimously ruled in favor of Scanlan’s client, declaring that the photographs taken during the warrantless search of the house were unjustified and inadmissible at trial since the officers lacked probable cause.

“Greg successfully anticipated the mindset of the appellate judges, particularly the concerns they were likely to have about the precedential effects of a ruling in his client’s favor,” Hertz said. “He crafted a narrative that caused the judges to conclude that not only was the law on Greg’s side, but so was a broader policy interest in deterring police abuses in the future.”