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Taser use found excessive in wrongful death suit
Responding to a report of bulldozer blocking the highway, an officer saw Keiser climbing up a front end loader. Keiser fled on foot and the officer chased him. A back up officer joined the chase. Tackling Keiser, the officers attempted to handcuff him. Keiser grabbed an officer by the throat and choked him. The other officer struck Keiser with a baton and sprayed OC spray. Keiser let go of the throat and fled. Two more officers arrived. Keiser ignored orders to take his hands out of his pockets and an officer fired a Taser. The Taser had little or no effect and Keiser pulled out the probes. The officers rushed Keiser, striking him with a baton, applying several Taser drive stuns and knocking him down. For a few moments as the officers were struggling to handcuff Keiser, his head was submerged in muddy swamp water. When they were able to cuff and pull Keiser erect, he was not breathing. Though the officers applied CPR, Keiser was pronounced dead. His surviving daughter sued.
Asked to grant qualified immunity to the officers, the court was required to interpret the facts in favor of Keiser. Qualified immunity requires the following analysis: First, do the facts viewed in the light most favorable to the plaintiff show that a constitutional violation has occurred. Second, was the violation alleged a clearly established constitutional right of which a reasonable officer would have known. Third, did the plaintiff show sufficient evidence that what the officer allegedly did was objectively unreasonable in light of the clearly established constitutional rights. In this case, the judge concluded (analyzing the facts favorable to Keiser) that the Taser stuns constituted excessive force because Keiser was unarmed, suspected of a minor crime, surrounded by four officers and had ceased resisting forcibly. Though the case law on Taser use is sparse (but rapidly developing), the judge compared the Taser use to pepper spray. The judge relied on prior cases to rule that the excessive use of pepper spray amounted to a constitutional violation of which a reasonable officer would be aware. Thus, the court refused to grant qualified immunity and ordered the matter to advance to a trial. Of course, a jury may reach an entirely different conclusion when additional facts are presented and witnesses testify. Officers should take note that the court relied on pepper spray cases in analyzing Taser use. Landis v. Cardoza, 515 F.Supp.2d 809 (E.D. Mich. 2007).
Deputy sued for faulty search incident to arrest
A deputy stopped Brown for a headlight violation. When Brown could not find his driver license, the deputy arrested Brown and placed him in his patrol car. He searched Brown’s truck and found Brown’s wallet in a briefcase. He searched the wallet and found Brown’s driver license. As the deputy drove Brown to the jail to be booked for refusal to show his driver license, another deputy again searched Brown’s truck. Brown sued, claiming that his 4th Amendment rights were violated. The court granted immunity for Fisher for the first search because the search was a valid search incident to arrest. The court of appeals expressed some concern over the driver license arrest because the first deputy found Brown’s license for him. However, the court found that the arrest could have been valid because of the headlight violation. The court refused to enter summary judgment and extend qualified immunity to the deputy conducting the second search. Because the search was conducted after the arrest and after Brown was removed from the scene, the court ruled that it was not a search incident to arrest.
This case reminds officers that an improper search can lead not only to suppression of evidence, but also to a civil suit for constitutional violations. A search incident to arrest is valid when the search is substantially contemporaneous to the arrest and where the arrestee is detained on-scene at the time of the search. Brown v. Fisher, 2007 WL 3011051 (10th Cir. 2007).
"No insurance found" computer check justifies traffic stop leading to DUI arrest
An alert and creative trooper was stopped behind Snedeker’s car at a red light. The trooper ran a computer check on Snedeker’s license plate and received a “no insurance found” result. The trooper stopped Snedeker and Snedeker was able to produce proof of insurance. However, the trooper detected alcohol on Snedeker’s breath. Snedeker was ultimately arrested for DUI. He challenged his conviction on the basis for the stop.
A number of courts have ruled that stops based on computer checks showing improper registration or driver license status are reasonable, even where the information later is shown to be faulty. These courts have reasoned that the validity of registration databases are sufficiently current and accurate to provide reasonable suspicion for a Level II investigative traffic detention. United States v. Miguel, 86 Fed. Appx. 342 (9th Cir. 2004) (stop was reasonable where officer relied on possibly inaccurate computer report of expired registration); Ingram v. City of Los Angeles, 418 F.Supp.2d 1182 (C.D. Cal. 2006) (stop proper when based on confusing computer information implying that car might be stolen); United States v. White, 1999 WL 1939263 (M.D.N.C. 1999) (stop based on “registration not on file” was reasonable, even though officer caused error when he mistook Georgia plate for South Carolina plate), aff'd 201 F.3d 439 (4th Cir. 1999); State v. Muller, 698 N.W.2d 285 (S.D. 2005) (stop reasonable though based on erroneous information relayed by police dispatch that suspect's license plates and registration had expired); Commonwealth v. Van Winkle, 880 A.2d 1280 (Pa. Super. 2005) (stop proper though computer improperly showed that suspect’s plates belonged on another car). Courts have also sustained stops based on inaccurate information concerning driver license or arrest warrant status. United States v. Coplin, 463 F.3d 96 (1st Cir. 2006), (stop proper when MDT showed that suspect had both a valid license and then showed he had a suspended license), cert. denied, ___ U.S. ___ 127 S.Ct. 1320, (2007).
Stops based on “no insurance found” have been met with mixed results. Though most courts have upheld these stops as valid, they have generally done so after the prosecution showed that the insurance database was reasonably reliable. The Utah Court of Appeals recently upheld a stop based a “no insurance” result when the prosecution presented evidence that the database, operated by the private firm InsureRite, was frequently updated and had at least a 98% accuracy rate. State v. Biggs, 167 P.3d 544 (Utah App. 2007). Other courts have not upheld stops based on insurance checks where the evidence did not show that the database was reliable. State v. Dixson, 633 S.E.2d 636 (Ga. App. 2006). In Snedeker’s case, even though he was able to show that he did have insurance at the time of the stop, the court found that the trooper was justified in relying on the insurance database to make the stop. The court refused to suppress the stop. Snedeker v. Rolfe, --- P.3d ----, 2007 WL 4441186 (Utah App. 2007).
No warning prior to Taser use, no statement of intent to arrest exposes officers to liability
Casey lost a traffic case in court. He asked to appeal and the judge gave him his file to take to the clerk’s office, so that he could pay the fine. Casey was accompanied by his 8 year-old daughter. As she went into the bathroom, Casey went to the parking lot to get money from his truck. An unidentified person told Casey that he could not take the file from the building. Casey replied that his daughter was in the bathroom and he would return immediately. The person told an officer that Casey had removed the file. When Casey returned, the officer confronted Casey. Casey offered the file to the officer, but the officer did not take it. Casey attempted to go around the officer to the clerk’s office to pay the fine. The officer grabbed Casey’s arm. Casey pulled away and the officer jumped on Casey’s back, taking him to the ground. A second officer arrived and fired a Taser into Casey. Two other officers joined the fray. One fired a drive stun into Casey. The first Taser was fired again, shocking one of the officers who told the firing officer to “put that thing away.” Casey eventually pled guilty to a minor misdemeanor charge and then sued the officers for excessive force.
The trial court ruled that the officers had used appropriate force, or in the alternative, had used force that was not clearly unconstitutional at the time of the incident. The Court of Appeals reversed, applying the use of force evaluation factors of Graham v. Connor. Because the trial court had granted summary judgment, the court of appeals was limited to reviewing the facts in the light most favorable to Casey, not the officers. A full trial may show additional or contrary facts that significantly impact the ultimate resolution of the suit. The court surmised that the arrest was for a minor misdemeanor (removing the file temporarily from the court house); Casey was not actively resisting the officer at the time that the officer grabbed his arm and jumped on his back, and that Casey presented no threat to the public or officers at the time of the initial encounter. The court did not believe that Casey gave the officers any reason to fear and noted that none of the officers ever told Casey that he was under arrest.
The Court of Appeals refused to extend qualified immunity to the officers, and ruled that the backup officers could be liable for failure to protect Casey against the continued unlawful force. The judges specifically cited the application of the Taser without any verbal warning and without any notice of intent to arrest as a basis for the Taser-firing officer’s potential liability. The judges concluded that there were no tactical or practical reasons to not give a warning before applying the Taser. “We do not know of any circuit that has upheld the use of a Taser immediately and without warning against a misdemeanant like Mr. Casey. Therefore, [the officer] is not entitled to qualified immunity from this excessive force suit.”
The decision from the Court of Appeals highlights that it is good practice to clearly communicate the officer’s intent to arrest and that an officer should carefully consider verbal warnings prior to Taser application. At least in the Tenth Circuit (which includes Utah), failure to give warnings where tactically and practically reasonable may lead to liability for Taser use. Casey v. City of Federal Heights, --- F.3d ----, 2007 WL 4296338 (10th Cir. 2007).
Religious symbols not relied on to find reasonable suspicion of drug trafficking
A trooper stopped Garvin for following too closely (turns out that he was traveling in tandem with his fiancé). As the trooper spoke to Garvin, he observed a large crucifix on the seat next to Garvin, a Bible on the dashboard, an air freshener hanging from the rear-view mirror, and a dryer sheet laying on the floor. He also smelled a strong odor of air fresheners and dryer sheets emanating from inside the vehicle. He noted that Garvin was unusually nervous. Garvin was driving a rental vehicle, and the rental was overdue for return. Garvin was driving from a drug source area to Chicago, a distribution point. Garvin also avoided eye contact when asked about drugs. The trooper issued a warning citation to Garvin and called for a drug detector dog. The dog gave a response indicating the odor of illegal drugs. The trooper found 28 pounds of marijuana in Garvin’s vehicle. Garvin claimed that the detention to await a drug dog was not based on reasonable suspicion.
The presence of religious symbols may be used by couriers as implicit “good person” indicators (suggesting that the driver is not carrying illegal drugs). The Tenth Circuit has previously discounted the value of religious symbols in establishing reasonable suspicion. United States v. Guerrero, 472 F.3d 784 (10th Cir. 2007). The trial court relied, in part, on the Bible and crucifix to find reasonable suspicion. The Wyoming Supreme Court agreed that there was reasonable suspicion to detain the vehicle for a dog sniff, but disregarded the religious symbols in the calculation of reasonable suspicion. Garvin v. State, --- P.3d ----, 2007 WL 4258209 (Wyo. 2007).
Religious symbol (unofficial saint of drug dealers) gets its own beer brand
Will possession of an open container of drug dealer saint's beer support reasonable suspicion of drug possession? Jesus Malverde is considered a Mexican Robin Hood and the patron saint of Sinaloan drug lords. Minerva, a Mexican brewing company, is paying honor to the drug trafficking saint with a beer marketed in Sinaloa province. Sinaloa is one of Mexico’s most drug-infested provinces, where drug lords operate with ferocity. Malverde was executed for his crimes in 1909. A chapel was later built to venerate and honor him. The Roman Catholic Church does not include Malverde in the official list of venerable saints.
Peeking at suspect's crotch exceeds limits of consent to search
An officer spotted a car at 0300 in an area known for drug sales and prostitution. He followed the car, noted that it was speeding, and stopped behind the car when the driver parked. He saw Stone, the passenger, sliding about on the seat. He asked Stone for identification and recognized Stone as one known for drug trafficking. He asked whether Stone was holding any illegal drugs. When Stone said that he was not, the officer asked for consent to search. After finding a large amount of cash in Stone’s sweat suit pocket, the officer pulled Stone’s waistband away from his body, shined a light on Stone’s genitals and saw a pill bottle tucked under Stone’s testicles. The North Carolina Supreme Court ruled that the officer exceeded the scope of Stone’s consent. In Florida v. Jimeno, 500 U.S. 248 (1991), the U.S. Supreme Court stated that “the standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of ‘objective’ reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect?” The court concluded that a reasonable person would not have understood his consent to include a genital inspection in a public parking lot. The contents of the pill bottle were suppressed. Comments in the decision suggested that the result might have been different if the officers had taken steps to shield the exam from public view (even though there was no evidence that anyone other than the two officers could see Stone’s genitals). State v. Stone, --- S.E.2d ----, 2007 WL 4276560 (N.C. 2007).
No expectation of privacy in back yard when creating a public disturbance at 0400
Deputies went to Dunn’s house at 0400 in response to a noise complaint. They saw that the house was dark, but saw smoke from a bonfire in the back yard. Deputies went around the side of the house, saw several people near the fire and saw that a truck with open doors was playing loud music. The deputies spoke with Dunn when he identified himself as the person hosting the party. They discovered an arrest warrant for Dunn, arrested him, and found drug paraphernalia during the search of Dunn’s person incident to his arrest. Dunn challenged the arrest and search, claiming that the deputies’ entry onto his property without a warrant was unreasonable.
The Montana Supreme Court found that Dunn had no reasonable expectation of privacy in his backyard while disturbing neighbors at 0400. Dunn’s “very public act” of disturbing the peace was at odds with his claim of an expectation of privacy. Thus, the deputies’ intrusion was reasonable. The court observed that the deputies followed the driveway to the back yard, the same path that any visitor might take. They did not climb fences or pass “no trespassing” warnings. Moreover, a crime was in progress when they arrived (the loud music audible from the road and the neighbors’ homes). Once the deputies followed the path of public access to Dunn’s home, they saw the truck that was the source of the loud music. State v. Dunn, --- P.3d ----, 2007 WL 3349493 (Mont. 2007).
Walk nice, talk mean?
An officer saw Garry standing by a car late at night in an area known for drug and violent crime. The officer illuminated Garry with the patrol car spotlight and rapidly approached Garry. The officer asked Garry whether he was on parole or probation (California allows officer to conduct searches of parolees and probationers). Garry began to flee and the officer forced him to the ground, searched him, and found several baggies of cocaine. Garry sought to suppress the cocaine on the grounds that the initial detention was not supported by reasonable suspicion. Garry claimed that he was “seized” at the moment that the officer both spotlighted him and approached him “briskly.” The court agreed and ordered suppression. Citing the spotlight, the officer's rapid approach, and the immediate discussion about parole status (as opposed to asking the purpose of being in the neighborhood, etc.), the court noted: “We think only one conclusion is possible from this undisputed evidence: that [the officer's] actions constituted a show of authority so intimidating as to communicate to any reasonable person that he or she was not free to decline [his] requests or otherwise terminate the encounter.” People v. Garry, --- Cal.Rptr.3d ----, 2007 WL 3342586 (Cal. App. 2007).
Utah court follows U.S. Supreme Court rulings on automobile search exception
Despain was weaving as he drove and he crashed into a parked trailer. The officer responding spoke with Despain and did not smell alcohol, but noted that Despain’s speech was slurred. Several witnesses told the officer about Despain’s highly erratic driving. Another officer arriving at the scene described Despain’s behavior as “panicked.” Because paramedics were about to transport Despain, the officer did not administer field sobriety tests. En route to the hospital, Despain acted paranoid about his car and told paramedics that he had locked it to prevent anyone from getting into it. Paramedics relayed this information to the officers. Two persons arrived at the crash scene. Claiming to be relatives of Despain, they began to remove a backpack from the car. The officers retrieved the backpack, searched the car, and found distribution quantities of marijuana and methamphetamine. The officers arrested Despain after the search of the car.
Despain claimed that there was no probable cause for his arrest and that the search was illegal. The court found that the highly erratic driving pattern described by the witnesses, Despain’s slurred speech, and the crash itself, gave the officer probable cause to arrest Despain for driving under the influence. Though the trial court allowed the search under the inevitable discovery doctrine (perhaps assuming that there would be an inventory or a search incident to arrest), the court of appeals upheld the search under the automobile exception to the warrant requirement. The court found that the erratic driving pattern, Despain’s paranoid behavior about excluding persons from the car, and that persons were called to the scene to remove the backpack, gave the officers probable cause to search. The court observed that the mobility of the crashed vehicle was not a critical issue. “Even in cases where an automobile is not immediately mobile, the lesser expectation of privacy resulting from its use as a readily mobile vehicle justifies application of the vehicular exception.” In prior cases, Utah courts have ruled that the automobile search exception requires both a mobile vehicle and a reasonable belief that the evidence will be compromised by the delay required to obtain a warrant. Recognizing the U. S. Supreme Court cases that have further clarified this exception, the Utah Court of Appeals observes that the automobile exception does not require a likelihood that the evidence will be destroyed or removed if there is a delay to obtain a warrant, and that mobility is not an absolute prerequisite to an automobile exception search. State v. Despain, --- P.3d ----, 2007 WL 3407328 (Utah App. 2007).
Second interrogation, following invocation of right to silence, held valid
Dewey and her husband became intoxicated at a bar and were ejected when they created a disturbance. They continued to argue in the parking lot. Dewey stabbed her husband. She later called the police. Three times during the 911 call, she told police that she did not know who stabbed her husband. Not a suspect at the time, Dewey was interviewed at the police station. The officer read each Miranda right one line at a time. Dewey asked whether she was a suspect. When the officer said that she was, she invoked the right to remain silent. The interrogation immediately ceased and Dewey was arrested. Two hours later, another officer initiated a conversation with Dewey, repeated the Miranda warning, and asked Dewey if she would speak with her. Dewey consented, and signed a waiver form. Dewey provided inculpatory answers during the second interrogation and accurately told officers where they would find the murder weapon (in her truck under the seat). The next day, officers tried a third interrogation, but Dewey invoked her right to counsel.
Dewey claimed that her Miranda rights were violated and asked that the second interrogation be suppressed. The court found that the second interrogation was properly conducted. Under the Miranda decision, the invocation of the right to an attorney stops the interrogation, and officers may not reinitiate an interrogation (though the suspect may do so). In Michigan v. Mosley, 423 U.S. 96 (1975), the Supreme Court ruled that officers may attempt another interrogation following the invocation of the right to remain silent, within certain parameters. The Court listed the following factors to consider: whether the police promptly stopped the first interrogation following the rights invocation, the length of time between the invocation and the second interrogation, whether the interrogations were conducted by different officers investigating different offenses, and the administering of a new Miranda warning before the second interrogation. In Dewey’s case, the court stated that each of these factors need not be fully satisfied in order to admit the second interrogation. "Neither the amount of elapsed time nor the identity of subject matter of the interview are of primary importance." The court should consider the totality of the circumstances to determine whether officers “scrupulously honored” the first invocation of the right to remain silent. Even though the subject of the second interrogation was the same as the first aborted interrogation, there was a “significant amount of time” (2 hours) between the two interrogations and the second officer provided a fresh Miranda warning. Dewey v. State, --- P.3d ----, 2007 WL 3197227 (Nev. 2007).
Warrantless probation search ruled unlawful
Officers went to Jones’ house with an arrest warrant to arrest him on four counts of murder. They did not have a search warrant. Jones was on probation, though apparently on informal court probation. A probation officer accompanied the officers. They found Jones, arrested him and searched his residence. Jones appealed the trial court’s refusal to suppress evidence taken in the warrantless search. The prosecution asserted that Jones’ probation status justified the warrantless search. The Georgia Supreme Court disagreed, ruling that Jones’ status as a probationer does not diminish his expectation of privacy to the point of making such searches "reasonable" under the Fourth Amendment, unless there is an explicit condition of probation authorizing warrantless searches.
In United States v. Knights, 534 U.S. 112 (2001), the Supreme Court allowed a search under a condition of probation authorizing suspicionless searches of a probationer’s home. The Court based its ruling on the probationer’s reduced expectation of privacy. The state interest in preventing the probationer from committing new crimes outweighed the probationer’s privacy. Thus, no warrant was required and a home search could be based on simple reasonable suspicion. Five years later, in Samson v. California, 126 S.Ct. 2193 (U.S. 2006), the Supreme Court held that officers may conduct a warrantless, suspicionless search pursuant to a search condition contained in the supervision agreement that authorized any peace officer to conduct a search at any time for any (or no) reason. The Georgia court did not view either the Knights or Sampson cases as going so far as to authorize a warrantless search based solely upon probation status. Jones v. State, --- S.E.2d ----, 2007 WL 3130439 (Ga. 2007).
NOTE: In the 2008 Legislature, the legislators will be asked to pass a statute authorizing Utah peace officers to search parolees (but not probationers). Some courts have ruled the probation status for certain offenses can justify a warrantless search, even without an express provision in a supervision agreement. United States v. Yuknavich, 419 F.3d 1302 (11th Cir. 2005) (sex offender); United States v. Keith, 375 F.3d 346 (5th Cir.) (probation for bomb-making), cert. denied, 543 U.S. 950 (2004). However, the federal court of appeals with jurisdiction over Utah has ruled that a warrantless probation search must be particularly authorized by the probation agreement. United States v. Freeman, 479 F.3d 743 (10th Cir. 2007).
Officer mistakes Glock for Taser and shoots suspect
An officer saw Henry driving and followed him to his home to serve an arrest warrant for child support arrears. When the officer approach Henry and told him to get out of the truck, he fled. The officer, intending to draw and fire a Taser, mistakenly drew his Glock handgun and shot Henry as he ran. Henry sued. Though the officer claimed that he had not seized Henry because he did not intend to shoot him, the court disagreed. However, the court of appeals ruled that the officer might be entitled to qualified immunity if the officer reasonably believed that using the Taser was proper. The court of appeals remanded the case to the trial court to consider the nature of the Taser training to prevent incidents like this from happening, whether the officer acted in accordance with that training, whether the officer would have discovered that he was holding a handgun rather than a Taser if, as he apparently had been trained to do, he had attempted to flip the thumb safety device on what he thought was the Taser, and whether his prior encounters with Henry impacted his actions. Henry v. Purnell, --- F.3d ----, 2007 WL 2729126 (4th Cir. 2007).
Officers immune from suit in pepper spray use
An officer stopped Mecham for speeding and a seat belt violation. The officer learned that Mecham’s Arizona driver license was suspended. The officer told Mecham that she could not drive and that her car would be impounded if she could not get a licensed driver to promptly come and drive the car away. As the officer spoke with Mecham, Mecham’s mother called on a cell phone. The officer told Mecham to hang up the phone and speak with him. She did not. He warned her again, and she refused to end her call. He called for a tow truck and another officer. Mecham refused to get out of the car, saying that she would sit in the car until her mother arrived.
When the backup officer arrived, the officer warned Mecham that she would be forcibly removed from the car if she refused to get out. She did not move. The officer opened the door and sprayed pepper spray into her face. He then pulled her from the car, assisted by the second officer, placed her on the ground and handcuffed her. Mecham sued, claiming excessive force. She claimed that she doubted that the officer was a genuine officer, even though both he and the backup officer were in uniform and there were two marked patrol cars on scene. Though the trial court declined to grant qualified immunity from suit to the officers, the court of appeals reversed and the suit was dismissed.
An officer is entitled to qualified immunity, meaning that the suit against the officer cannot proceed, unless the plaintiff can meet the heavy two-part burden by showing: (1) the officer violated a constitutional or statutory right, and (2) the right was clearly established at the time of the officer’s allegedly unlawful conduct. In the Tenth Circuit (as well as a few others) this “heavy” burden essentially shifts the burden to the plaintiff once the officer claims the protection of qualified immunity. In excessive force claims, a suspect's constitutional rights are not violated if the amount of force used by officers was “objectively reasonable.” The court of appeals noted that Mecham contributed to the confusion over her licenses, refused to get out, refused to end her call, refused to relinquish the car keys, and refused the repeated requests by both officers to cooperate. Thus, use of force to effect an arrest was a “foregone conclusion.” Mecham’s actions made the use of pepper spray and control holds objectively reasonable and the officers were entitled to immunity from suit. Mecham v. Frazier, 500 F.3d 1200 (10th Cir. 2007).
Court interprets "immediately apparent" requirement of plain feel doctrine
An officer approached an improperly parked truck and saw the driver holding a knife. Yamba was a passenger. He made a furtive movement under the truck seat. The officer frisked Yamba and felt a plastic bag with a “spongy-like substance” with buds and seeds. The officer knew that it was marijuana after a “half-second” of feeling the item. He arrested Yamba. In the search incident to booking, the officer found documents used to convict Yamba of wire fraud. Yamba claimed that the initial seizure of the marijuana was illegal, and hence the arrest and booking search were unlawful.
In Minnesota v. Dickerson, 508 U.S. 366 (1993), the Supreme Court ruled that an officer may seize an item felt during a frisk if it is "immediately apparent" as contraband. Some courts have ruled that the immediately apparent requirement must be met based solely on the feel of the object, while other courts have allowed officers’ testimony that the appearance as contraband was determined, at least in part, by the officers’ training and experience. The Court of Appeals said that both approaches are incorrect. The proper question, according to the court, is "not the immediacy and certainty with which an officer knows an object to be contraband or the amount of manipulation required to acquire that knowledge, but rather what the officer believes the object is by the time he concludes that it is not a weapon." "When determining whether the scope of a particular Terry search was proper, the areas of focus should be whether the officer had probable cause to believe an object was contraband before he knew it not to be a weapon and whether he acquired that knowledge in a manner consistent with a routine frisk." In this case, the officer formed a probable cause conclusion that the item was contraband within the context of a routine frisk. Thus, the marijuana was properly seized and the arrest was valid. United States v. Yamba, --- F.3d ----, 2007 WL 3054387 (3rd Cir. 2007).
Is "disengagement" the key to transforming a traffic stop into a voluntary interdiction discussion?
An officer stopped Thompson for a headlight violation. After obtaining Thompson’s license and registration and running a computer check, the officer told a back-up officer that he intended to ask Thompson for consent to search his car. The officer had information that Thompson had previously been involved in illegal drugs. Following instruction given in many drug interdiction classes, the officer returned Thompson’s documents, gave a verbal warning about the headlight, and began to walk away. The officer then turned back and asked: "By the way, can I ask you a few questions?" (Some refer to this as the “Lt. Columbo” tactic; Columbo often preceded the confession-eliciting question with “. . . one more thing.”) Thompson subsequently gave consent to search and the officer found a baggie of powder and paraphernalia. Thompson told the officer that the items came from his garage and he gave consent to search his garage. The garage held evidence of methamphetamine manufacture.
Thompson challenged his consent, alleging that it was the product of an illegal detention. A lower court agreed that the detention was illegal because the officer did not sufficiently “disengage” from the traffic stop before asking Thompson to answer additional questions and consent to a search. The Kansas Supreme Court reversed, ruling that the consent was properly obtained. The court held that the Fourth Amendment does not require an officer who has completed a traffic stop to "disengage" from the stop as a prerequisite to finding that the traffic detention had turned into a consensual encounter. However, the court also stated that returning of driver's documents did not create a presumption that the stop had morphed into a voluntary discussion.
The U.S. Supreme Court previously rejected a bright-line rule for transforming a traffic detention into a voluntary encounter in Ohio v. Robinette, 519 U.S. 33 (1996). The Ohio Supreme Court had ruled that an officer must recite the magic words: “At this time you legally are free to go.” Then the officer could ask for consent to search. The U.S. Supreme Court reversed and reiterated that detentions must be analyzed from the perspective of whether a reasonable person would feel free to leave. In Thompson, the Kansas Supreme Court ruled that "a requirement that an officer walk away or otherwise physically 'disengage' " would "establish a bright-line rule - like requiring an officer to say 'you are free to go' - which has been rejected by the United States Supreme Court" in Ohio v. Robinette. The court found that the encounter between Thompson and the officer had become voluntary after the return of the documents. Key factors included the officer’s use of casual, consensual language (talk nice, think mean!!), the presence of only two officers, the absence of drawn weapons, the use of emergency lights as warning devices in the dark and not just as signals to stop and remain stopped. State v. Thompson, 166 P.3d 1015 (Kan. 2007).
Defective Miranda warning reverses gun conviction
Officers went to an apartment where Powell was staying, looking for Powell. The officers found Powell in a bedroom and found a gun under the bed. They arrested Powell. At the station, an officer gave Powell the following Miranda warning: “You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.” The warning did not specify that Powell had the right to have an attorney present during questioning. The court found that this failure was fatal to Powell’s conviction. Though there is no magic language required by the Miranda decision, the right to have an attorney present during questioning is one of the specific advisements required by the Supreme Court. Powell v. State, --- So.2d ----, 2007 WL 2935003 (Fla. App. 2007).
Repeated application of Taser held to be unconstitutional excessive force
Beaver had been smoking crack cocaine and marijuana and drinking during a 2 day binge. An officer responding to a burglary call saw Beaver running from the scene. The officer recognized Beaver from a prior encounter and called him by name, ordering him to stop. Beaver did not and the officer shot Beaver with a Taser. Beaver went down. The officer ordered him to turn on his stomach and extend his arms. Beaver attempted to get up and the officer tased Beaver a second time. Beaver did not comply with orders to turn onto his stomach and the officer tased him again. A backup officer arrived at that point. She gave Beaver a conflicting order, telling him to get on his back. A citizen testified that he clearly heard Beaver say “I can’t.” The officer tased Beaver a fourth time and Beaver rolled onto his stomach, with his arms held under him. The officer tased Beaver a fifth time and Beaver extended his arms above his head. The officer kicked Beaver’s hands to the his side and Beaver was handcuffed.
Beaver sued, claiming that the officers used excessive force to arrest him and claiming that the backup officer failed to protect him from unnecessary force inflicted by the repeated applications of the Taser. The court ruled that the first three Taser stuns were reasonable. The court applied the use of force factors of Graham v. Connor and noted that: “the officer was alone with a fleeing felony suspect, who was apparently under the influence of controlled substances, who ignored his commands to stop, and who was attempting to rise and perhaps to flee.” However, the court found that the fourth and fifth applications were unreasonable because a backup officer had arrived and would have been able to help secure Beaver without repetition of the Taser stuns.
Arrival of the backup officer diminished the “immediate threat” presented to the first officer by Beaver. Moreover, Beaver’s statement “I can’t” showed involuntary resistance and not a willful resistance to efforts to control him. Courts have previously held that that when no immediate threat is posed and a suspect's failure to comply may be involuntary, officers were not entitled to use force. Winterrowd v. Nelson, 480 F.3d 1181 (9th Cir. 2007). The court observed that the backup officer could have attempted to handcuff Beaver while the first officer held the Taser on Beaver, ready to fire again if Beaver resisted handcuffing efforts. In addition to finding that the first officer used excessive force, the court found that the backup officer violated Beaver’s rights by failing to protect him against the excessive force.
The court concluded that the officers were entitled to qualified immunity. At the time of Beaver’s arrest, the law was not clearly established that officers could not use force when, as in Beaver’s case, a suspect is not a threat, even if the suspect is not fully complying with the officer's commands. A recent case decided by the Ninth Circuit Court of Appeals held just that. Harveston v. Cunningham, 216 Fed.Appx. 682 (9th Cir. 2007) (ruling that a police officer used excessive force when he used pepper spray against a suspect who was already handcuffed and on the ground, but who was trying to roll over and stand up contrary to the officer’s orders). In future cases, at least in the Ninth Circuit, officers in similar situations may not be protected by the qualified immunity doctrine. This case is part of the developing case law concerning electro-muscular disruption devices. The ruling suggests great caution in using such a device to gain compliance from a suspect who is not an imminent threat to the officer’s safety (one must readily admit that there is a genuine debate over whether the court properly concluded that Beaver was not such a threat even into the fourth and fifth application of the Taser). Beaver v. City of Federal Way, --- F.Supp.2d ----, 2007 WL 2482094 (W.D. Wash. 2007).
Reaching into pocket during frisk justified by suspect's behavior
A hotel clerk called police to evict Inouye. Inouye, who appeared to be intoxicated or under the influence of drugs, kept his hands in his pockets as he approached the officer. He ignored the officer’s command to show his hands. Based on Inouye’s red, glassy eyes and impaired behavior, as well as holding his hands in his pockets, the officer decided to frisk Inouye. The officer testified that he had been trained that persons keeping their hands in the pockets might be an indicator of carrying a weapon and that such behavior was a “serious safety risk.” Inouye resisted the officer’s attempt to frisk him. Concerned about what Inouye had in his pocket, the officer reached into the pocket and found a glass meth pipe. Inouye later sued the officer, alleging an illegal search.
The court held that Inouye’s “evasion, coupled with Inouye's drugged appearance, refusal to remove his hands from his pockets, and police department training emphasizing that weapons may well be concealed in such a case, justified the officer’s reach into Inouye's pockets once his attempt to perform a less intrusive frisk had failed.” Although Terry searches usually should stop at a pat-down, they may be somewhat more intrusive as the situation warrants: for instance, reaching into the car window of a potentially armed suspect to remove a gun from his waistband was found to be a justifiable Terry search in Adams v. Williams, 407 U.S. 143 (1973). The court granted summary judgment in favor of the officer and police department. Inouye v. Kemna, 2007 WL 2669540 (9th Cir. 2007).
Thermal imaging warrant requires reasonable suspicion, not probable cause
A CI reported that he had seen a basement marijuana cultivation operation in Kattaria’s home two years prior (pretty stale info). An investigator found that Kattaria had two prior convictions for marijuana crimes and that Kattaria’s recent home power consumption was well over twice that of the highest consumption of his immediate neighbors, and 300 times high than one of his neighbors. With that information, the investigator obtained a warrant for fly-over thermal imaging. In Kyllo v United States, 533 U.S. 27 (2001), the Supreme Court held that warrantless thermal imaging violated the Fourth Amendment. However, the Court did not establish the threshold standard for obtaining a warrant.
The Court of Appeals determined that the appropriate standard for obtaining a warrant for non-intrusive thermal imaging of a residence is the Terry standard of reasonable suspicion, and not probable cause. The court balanced “the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives.” The court noted that thermal imaging was not only non-intrusive, but served to help confirm suspicions of illegal activity before a more intrusive search of the home. United States v. Kattaria, --- F.3d ----, 2007 WL 2892027 (8th Cir. 2007).
HGN test requires scientific foundation for admissibility in court
McKown was arrested for DUI after she failed field sobriety tests, including a horizontal gaze nystagmus (HGN) test. The trial judge took judicial notice that the HGN test is generally regarded as reliable. The Illinois Supreme Court reversed that ruling, stating that HGN evidence is inadmissible until the prosecution provides an evidentiary foundation showing that the HGN test satisfies the standard for admissibility of novel scientific evidence set out in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Some state courts have ruled that HGN testing is no different than other observational field sobriety tests and requires no scientific foundation for consideration in court. Most states that have considered the issue agree with the Illinois court and rule that the HGN test must meet the Frye test for scientific testimony. Other state courts have found that the HGN test is scientific, but have allowed the evidence without a foundation, taking judicial notice of its reliability and validity. The Illinois court ruled that the science behind the test is not the real issue. Because the HGN test requires interpretation by a trained officer, it qualifies as scientific evidence requiring a foundation. The Frye test requires that “scientific evidence is admissible at trial only if the methodology or scientific principle upon which the opinion is based is ‘sufficiently established to have gained general acceptance in the particular field in which it belongs.’” People v. McKown, --- N.E.2d ----, 2007 WL 2729262 (Ill. 2007).
Stop based on reasonable suspicion of a completed misdemeanor trespass allowed
In a recent commentary on investigative detentions based on completed misdemeanors, United States v. Grigg, ___ F.3d ___, 2007 WL 2379615 (9th Cir. 2007), we left open the possibility that courts would allow such stops where the completed crime posed some public safety threat. Just a few weeks after the 9th Circuit’s decision in Grigg, the 10th Circuit has determined that an investigatory stop based on a report of a completed misdemeanor trespass was constitutional. Moran told homeowners that he intended to cross their lands to gain hunting access in the national forest and he would shoot deer on their property if they denied permission to cross their properties. Police received two complaints in the same day about Moran. An officer spotted Moran just a few minutes after the second complaint.
The court found that the stop was valid, even though the misdemeanor crime was completed. A number of factors swayed the court. Moran was likely to be armed; he said that he intended to shoot deer. His trespass brought him into some confrontation with the landowners. His conduct was repeated, perhaps showing his intent to continue to trespass. This combination of factors justified the stop. Unfortunately for Moran, the officer found his hunting rifle in plain view. Learning that Moran was a convicted felon, the officer charged with a federal firearms felony. United States v. Moran, --- F.3d ----, 2007 WL 2775083 (10th Cir. 2007).
Violation of statutory knock-and-announce rule does not require suppression of evidence
Carvajal and his brother operated a counterfeiting ring from their apartment. They invested the profits from counterfeiting in the cocaine trade. Secret Service agents obtained warrants to search Carvajal’s apartment and a neighboring apartment. Agents knocked on the door, waited approximately 5 seconds, and breeched the door of Carvajal’s apartment. His brother charged the agents, aiming a gun. Several rounds to the head terminated the assault. Carvajal challenged the search on the basis that the 5-second delay after knocking turned the warrant execution into an unauthorized no-knock search.
In Hudson v. Michigan, --- U.S. ----, 126 S.Ct. 2159 (2006), the Supreme Court ruled that the constitutional Fourth Amendment knock-and-announce rule did not require suppression of evidence as a remedy for violating the knock-and-announce rule. However, in Carvajal’s case, all of the agents were federal agents bound by a statutory knock-and-announce rule found in 18 U.S.C. § 3109. The Court of Appeals ruled that the logic of Hudson applied to the statutory knock-and-announce rule and that suppression is not the required remedy in case of violations. Though this decision offers some comfort to officers executing search warrants where federal agents assist, officers should be careful to consider the knock-and-announce rule. If notice of entry is truly not advisable, obtain a no-knock authorization with the warrant. United States v. Acosta, --- F.3d ----, 2007 WL 2481175 (2nd Cir. 2007).
Probation search authority for computer included unconnected hard drive
Herndon was on probation for sexual exploitation of a minor (though Herndon had been imprisoned and released, the court deemed his status as “probation release”). One of the probation terms included a prohibition on Internet use without his probation officer’s permission. His probation officer learned that Herndon was using the Internet without permission. The probation officer went to Herndon’s home and found a laptop computer under Herndon’s pillow. A pre-search scan showed pornographic images, though it was not clear that the persons in the images were children. The probation officer found an unconnected external hard drive in Herndon’s bedroom, connected it to the laptop computer and found obvious child pornography. Officers ultimately seized over 3,000 images and several hundred videos of child pornography.
Herndon claimed that the probation search provision that allowed the officer to search his computer did not extend to unconnected peripheral hardware. In United States v. Knights, the Supreme Court ruled that a search of a probationer's property must be tested for reasonableness in light of the totality of the circumstances “by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” “When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer's significantly diminished privacy interests is reasonable.” United States v. Knights, 534 U.S. 112 (2001). The court of appeals ruled that Herndon’s computer and the external hard drive cannot function independently of one another. The court stated that the term "computer" is "commonly understood to include the collection of components involved in a computer's operation." Thus, Herndon had a substantially reduced expectation of privacy in the external drive. United States v. Herndon, --- F.3d ----, 2007 WL 2457452 (6th Cir. 2007).
Stop based on reasonable suspicion of a completed misdemeanor crime held to be unconstitutional
A patrol officer spots a car closely matching the description of a vehicle used to flee an armed robbery twelve days earlier. Although the officer sees no traffic violation, the officer hits the red and blue lights and makes an investigative stop. Lawful stop? Sure, based on reasonable suspicion that the vehicle and occupants were involved in a forcible felony, even though the felony was committed nearly two weeks prior and in the neighboring city. The United States Supreme Court found this very stop to meet constitutional requirements for an investigative detention (or Terry stop) in United States v. Hensley, 469 U.S. 221 (1985). However, would the same rule apply if the stop were based on suspicion of a completed misdemeanor crime instead of a violent felony?
The Ninth Circuit United States Court of Appeals became the first federal appellate court to tackle that question head on in the recent case of United States v. Grigg, ___ F.3d ___, 2007 WL 2379615 (9th Cir. 2007). The Court said “no.” Different rules apply to stops based on reasonable suspicion of completed commission of a misdemeanor crime. However, as described below, there are often perfectly legal reasons to make an investigative stop when the crime under investigation is a misdemeanor.
Two officers responded separately to a complaint of a car with an obnoxiously loud stereo in a residential neighborhood. The complainant said that he was the victim of ongoing noise harassment from juveniles playing their car stereos at excessive volume levels as they drove past his home. The complainant pointed out the suspect vehicle parked in a residential driveway down the street. He said that the Mercury Cougar was the car that had been “booming” down the street multiple times in recent days. While the first officer was speaking with the complainant, Grigg got into the Cougar and drove down the street. Grigg drove by without the volume pumped up and obeying all traffic laws. The officer radioed to the second officer to stop Grigg and identify him.
Grigg took a few seconds before stopping in a residential driveway. Grigg got out of the car, but the officer ordered him to get back into the car. As the officer approach, Grigg told the officer that he had a “hunting rifle” in the car. The officer then spotted an SKS rifle, later determined to fire in full auto mode, on the passenger seat. The officer also saw loose handgun ammo in the car. A frisk revealed that Grigg held concealed brass knuckles and the officer arrested him. Grigg was eventually convicted in federal court for possession of an unregistered automatic weapon.
Grigg challenged the legality of the investigative stop, claiming that the alleged noise violation was too insignificant of a crime to justify intruding on his Fourth Amendment rights. Unlike the armed robbery at issue in United States v. Hensley, “it is difficult to imagine a less threatening offense than playing one's car stereo at an excessive volume.” The officer testified that he stopped Grigg because all of the parties to the complaint were “right there.” The trial court found that the officer could have easily gone to the house where the Cougar was parked, knocked on the door, and asked who had just been driving the car. Though the complainant had called about the loud stereo on other occasions, the officer would not have been able to get Grigg’s name from the records division or from dispatch because no one had yet identified Grigg as a noise violation suspect. Calling the decision a “close call,” the trial judge ruled that the stop was a proper Terry investigative detention.
A few state appellate courts have previously considered whether the rule of United States v. Hensley would allow an investigative stop based on suspicion of a completed misdemeanor crime. The results are mixed. Most of these courts recognize that the United States Supreme Court balanced the seriousness of the completed crime, in relation to investigation of the completed crime as well as future crime prevention, against the individual’s Fourth Amendment privacy right. The Minnesota Court of Appeals went so far as to create a bright line prohibition on stops based on completed misdemeanor crimes in Blaisdell v. Commissioner of Public Safety, 375 N.W.2d 880 (Minn. App.1985), aff'd on other grounds, 381 N.W.2d 849 (Minn.1986).
The Louisiana Court of Appeals applied the balancing test from United States v. Hensley to a case where an officer stopped a car passing across the Louisiana-Arkansas state line based on a teletype report that the car struck a road sign in Arkansas. The officer did not see any traffic violation committed in Louisiana. However, the court observed that the reckless driving that resulted in striking an Arkansas road sign might be repeated in Louisiana. When the driver was stopped in Louisiana, the officer noted signs of impairment and ultimately arrested the driver for operating a vehicle under the influence of alcohol. Though the level of the completed Arkansas crime was relatively low, the court ruled that the public interest outweighed the driver’s privacy interest and the later stop in Louisiana was lawful. State v. Myers, 490 So.2d 700 (La. App. 1986). Similarly, North Dakota’s Supreme Court upheld a stop of a vehicle driving away from a bar based on a report that the occupants had been involved in an argument that might have evolved into a fight, but did not. City of Devils Lake v. Lawrence, 639 N.W.2d 466 (N.D. 2002),
Though the Ninth Circuit ruled that stopping Grigg was not constitutionally proper, the court did leave open the possibility that other completed misdemeanors might lawfully justify an investigative detention. The Court of Appeals held that a decision to stop a vehicle based on a report of a completed misdemeanor crime:
must consider the nature of the misdemeanor offense in question, with particular attention to the potential for ongoing or repeated danger ( e.g., drunken and/or reckless driving), and any risk of escalation ( e.g., disorderly conduct, assault, domestic violence). An assessment of the “public safety” factor should be considered within the totality of the circumstances, when balancing the privacy interests at stake against the efficacy of a Terry stop, along with the possibility that the police may have alternative means to identify the suspect or achieve the investigative purpose of the stop.
One question left unanswered by the facts recited in United States v. Grigg is why the officers didn’t ask for a wants and warrants check on the registered owner of the Mercury Cougar? Though it is only speculation that a check would have borne fruit, it may have provided an independent, lawful basis for the stop. And though it would have been less convenient, the first officer might have waited for the complainant to sign a formal complaint, then stopped Grigg to serve the complaint and summons. Alternatively, the second officer might also have merely followed Grigg. Chances are good that the officer could have found an independent reason to stop and identify Grigg. The officer could also have watched as Grigg stopped his car and then approached Grigg to conduct a purely voluntary encounter and ask for Grigg’s name and identification. The quick answer to these questions is that the complaint was for a minor noise violation and officers don’t have time to spin their wheels on such minor matters. However, in this case, the fruit falling from the poisonous tree was an automatic weapon.
The Court of Appeals concluded that, especially considering the possible alternative means to identify Grigg, “simple efficiency and expediency of law enforcement efforts do not automatically override the other crucial element of the Hensley balancing test-personal security from governmental intrusion in the operation of one's vehicle.” This is the same philosophy underlying the general rule that an officer cannot arrest for a misdemeanor crime that is completed and did not occur in the officer’s presence. Officers investigating completed misdemeanor crimes that do not hold a potential for future harm should pause before making a stop and ask whether the stop is constitutionally justified.
Dog sniff upheld; documents examined during search warrant cannot be seized under plain view doctrine
A Michigan motel clerk alerted police to suspicious behavior by Garcia and his associates. Officers rented an adjoining motel room and listened through cracks in the locked door. They heard conversations about weapons, money and drugs, including reference to a delivery on the following day. Garcia also told his companions that they should switch hotels because too many people were asking too many questions about their activities. The next day, officers stopped a Suburban carrying Garcia and his companions. The officers frisked each of the five men and seized a pager from Garcia. A drug detector canine arrived thirty minutes after the initial stop. The dog sniff revealed the presence of the odor of illegal drugs. Based on the sniff, officers obtained a warrant and found drugs and a large amount of cash. Another warrant search on a semi-trailer located at Garcia’s hotel resulted in the seizure of 3,000 pounds of marijuana.
Two weeks later, Texas officers served a search warrant authorizing a search of Garcia’s Texas residence for illegal drugs. They found cocaine, marijuana and packaging materials. Officers also read and seized hundreds of documents, including receipts and financial statements. The officers justified the seizure of the documents on the plain view doctrine, reasoning that the documents apparently reported drug sales. Evidence gathered in the Texas search was introduced in the Michigan prosecution.
Garcia challenged the traffic stop, the canine sniff, and the seizure of the documents. The court easily found that the stop was based on reasonable suspicion. Moreover, the canine sniff occurred within 30 minutes of the initial stop and the court found that was a reasonable time to allow for summoning a detector dog to the scene. Nonetheless, the court suppressed the evidence from the documents in Garcia’s Texas home. A warrant to search for drugs and paraphernalia did not include documents, and the plain view doctrine did not allow officers to read documents that they found in the course of the search. The court noted that an officer might well discern the incriminating nature of documents during a drug search, and documents might be subject to seizure under the plain view doctrine. However, in this case the testimony was clear that the officers carefully scrutinized the documents during the search. A better course would have been to seek an additional warrant to examine the documents once there was some indication that they were evidence of a crime. United States v. Garcia, --- F.3d ----, 2007 WL 2254435 (6th Cir. 2007).
Documents examined during border search can be seized under plain view doctrine
Seljan sent several FedEx packages to the Philippines. During a routine Customs inspections of packages, an ICE agent opened one of Seljan’s packages. The agent found envelopes with cash, a brochure for a Manila hotel, and a sexually-suggestive letter written to a very young girl. ICE agents interviewed Seljan’s landlord, who reported that Seljan bragged of traveling to the Philippines to have sex with children. Immigration records showed that Seljan had traveled to the Philippines over 40 times in the past decade. ICE agents intercepted another FedEx package with cash, photos of Seljan and children, and adult pornography. They also found letters to children describing the sex acts that Seljan desired to perform with the children. Agents intercepted Seljan at LAX airport, searched his bags, and found photos of Seljan having sex with young children. Seljan was arrested for possession of child pornography and attempted travel to engage in sex acts with a minor.
Seljan claimed that the initial inspection of his FedEx package (that lead to the investigation of his activities) was unlawful, and therefore the entire investigation was the fruit of a poisonous tree. The court found that 31 U.S.C. § 5317(b), which provides that “a customs officer may stop and search, at the border and without a search warrant, any vehicle, vessel, aircraft, or other conveyance, any envelope or other container, and any person entering or departing from the United States,” justified the search of the envelopes in the FedEx package. Unlike the situation in United States v. Garcia (reported above), this search was conducted at the functional equivalent of the international border and the very lenient border search doctrine allowed inspection of the letters in the package and seizure under the plain view doctrine. Seljan, having a prior sex abuse conviction on his record, now has 20 years in federal prison to think about it. United States v. Seljan, --- F.3d ----, 2007 WL 2302371 (9th Cir. 2007).
Security searches allowed under the special needs doctrine
The Ninth Circuit Court of Appeals recently reaffirmed its ruling that a passenger entering a secure zone at an airport may not leave the secure zone as an alternative to a required security search. Xiphos previously reported that the decision in United States v. Aukai, 440 F.3d 1168 (9th Cir. 2006), had been scheduled for reconsideration by the full panel of the court (known as an “en banc” hearing). The court moved away from a thirty-year old precedent that based security searches on consent by the traveler. Following a case decided by the Third Circuit, in United States v. Hartwell, 436 F.3d 174 (3rd Cir. 2006), the court ruled that suspicionless security screenings are constitutional under the Fourth Amendment's special needs doctrine. Under the special needs doctrine, a search or seizure is allowed if it supports services special governmental needs, beyond ordinary law enforcement need, that outweigh an individual's privacy expectations, and the circumstances of the search (such as a transportation security zone search requiring expediency) make it impractical to require a warrant or to impose a requirement of individual reasonable suspicion. United States v. Aukai, --- F.3d ----, 2007 WL 2283585 (9th Cir. 2007).
Officers applying twist lock to intoxicated man, prior to finding reasonable suspicion of a crime, entitled to immunity
Officers responded to a “man down” call at approximately 2 p.m. and found Novitsky in a fetal position on the back seat of a car. Novitsky seemed to be passed out. Arousing him, officers noted that he appeared to be intoxicated and ordered him to get out of the car. As Novistky exited the car, an officer saw a handgun in Novitsky’s waistband. The officer immediately placed Novitsky in an arrest control hold and seized the gun. Novitsky sued, alleging that he was ordered to get out of the car and frisked without reasonable suspicion and that the officer used excessive force.
The city sought summary judgment based on qualified immunity. Courts consider two questions when an officer seeks the protection of qualified immunity. First, the plaintiff must demonstrate the officer’s actions violated a constitutional right. Second, the plaintiff must show that the right alleged to be violated was clearly established at the time of the conduct at issue. The Court of Appeals ruled that the officers were entitled to qualified immunity. Though during the initial approach the officers did not suspect Novitsky of criminal activity, he was apparently intoxicated and that was a sufficient threat, even assuming that the officer did not see a gun, to justify a detention and a control hold due to the unpredictable nature of dealing with intoxicated persons. The twist lock was not excessive force. Novitsky v. City Of Aurora, 491 F.3d 1244 (10th Cir. 2007).
"Insurance not found" on database is sufficient reasonable suspicion for a traffic detention
An officer watching Cortez-Galaviz in connection with drug trafficking surveillance saw Reyes-Rubio drive away after speaking with Cortez-Galaviz. The officer checked the license plate and learned that the insurance status was “not found.” Utah (and many other states) maintains an insurance status database. The Utah database is operated by Insure-Rite, a private contractor, and the database is regularly updated and is audited for accuracy. Based on the “insurance not found” report, the officer stopped Reyes-Rubio for suspicion of driving without insurance. As the officer approached the vehicle, he saw a passenger, Zepeta-Soto, reaching under the seat. Ordering Zepeta-Rubio to keep his hands in sight, the officer looked on the floor and saw drugs in plain view. The drugs were later used as evidence against Cortez-Galaviz.
Cortez-Galaviz challenged the stop on the basis that the insurance question did not create sufficient reasonable suspicion to allow the officer to “pluck this needle from the haystack of cars on the road for investigation of a possible insurance violation.” The court disagreed, ruling that Cortez-Galaviz had not presented enough facts to demonstrate that the database was fatally unreliable, but leaving open the question for future cases where suspects might present further evidence of unreliability. “we hold that a ‘not found’ report from the Utah state insurance database, updated approximately 20 days earlier, suffices to afford a sufficiently particularized and objective basis to believe that a vehicle fails to comply with Utah vehicle insurance laws and, thus, to support a brief traffic stop.” United States v. Cortez-Galaviz, --- F.3d ----, 2007 WL 2181518 (10th Cir. 2007).
"Consent once removed" does not justify police entry into home
A CI told officers that he could buy methamphetamine from Callahan. The CI went to Callahan’s home and was invited into the home. After seeing methamphetamine, the CI gave a pre-arranged signal and officers entered the home. They had neither an arrest warrant nor a search warrant. During the entry, an officer saw Callahan drop what was later identified as a bag of methamphetamine. During the criminal appeal, the prosecution conceded the lack of warrant and the lack of exigent circumstances for the entry. Callahan prevailed and the appeals court reversed his conviction. Callahan then sued for damages in federal court. Attorneys representing the officers asserted the principle of “consent once removed.” They claimed that Callahan consented to the CI’s entry, the CI was an agent of the police, therefore by extension, Callahan could not object to the warrantless entry.
The Court of Appeals found that the “consent once removed” doctrine was not applicable when the person entering by consent is not a police officer. Other courts have applied the doctrine in cases where a suspect invites an undercover police officer into the home and the officer signals for other officers to enter. Some courts have extended the doctrine to include entry by officers when summoned by a non-sworn CI. In this case, the Court of Appeals reasoned that consenting to an undercover officer’s entry, a suspect has consented to a sworn officer’s entry. The single dissenting judge rightly observed that no suspect selling drugs invites a customer into a home when the suspect knows that the customer is actually an undercover police officer. The Court of Appeals ruled that the officers violated Callahan’s civil rights, and that they were not entitled to qualified immunity because they should have known that they were violating Callahan’s rights. Callahan v. Millard County, --- F.3d ----, 2007 WL 2028971 (10th Cir. 2007).
Talk nice, know precisely when and how to ask about drugs, weapons, etc., and win in court
An officer saw Valenzuela cross lane divider lines and stopped him. After taking Valenzuela’s insurance card and registration (Valenzuela did not have a driver license with him), but before beginning to write a citation or check for warrants and valid license, the officer asked Valenzuela to step out to the rear of the car and speak with him. The officer asked politely, asking whether Valenzuela would be willing to step out. At the rear of the car, the officer asked whether he or the other 3 occupants had any weapons or other illegal items in the car. Valenzuela said: “not that I know of.” The officer asked whether “it would be OK” to search for weapons and illegal items. Valenzuela answered by saying that there was a shotgun in the back seat. The officer placed Valenzuela in a police car, and the officer and a back-up officer placed handcuffs on the other 3 occupants. The officer could see a sawed-off shotgun through the car window.
Valenzuela claimed that the officer unconstitutionally prolonged the traffic detention by briefly delaying his traffic investigation to ask weapons and illegal item questions unrelated to the basis for the stop. The Court of Appeals disagreed, relying on the Supreme Court case of Muehler v. Mena, 544 U.S. 93 (2005). Though Muehler v. Mena was not a traffic detention case, many courts have followed its logic to redefine the scope of proper questions at a traffic stop or other investigative detention. The Supreme Court ruled that the scope of the detention, not the topic of questioning, was the critical issue for courts to consider. The Supreme Court held that questioning about matters unrelated to the purpose of the initial detention does not “constitute a discrete Fourth Amendment event.”
Prior to Muehler v. Mena, the Tenth Circuit Court of Appeals agreed with most other courts and held that questioning unrelated to the purpose of a traffic stop or to officer safety violate the Fourth Amendment, unless there is reasonable suspicion to justify the questions. However, in this case, the Court continues to focus on whether the detention was proper, and not on the incidental questioning that may or may not be related to the initial reason for the stop. See the following two cases previously discussed in Xiphos: United States v. Stewart, 473 F.3d 1256 (10th Cir. 2007); United States v. Alcaraz-Arellano, 441 F.3d 1252 (10th Cir. 2006). In those two cases, the court ruled that questioning that was unrelated to the purpose of the stop was proper because it happened during the time that the officer was waiting for computer checks and it did not appreciably extend the length of the detention. Following that logic, Valenzuela claimed that an officer can ask unrelated questions only while the officer wrote a citation, awaited computer checks from dispatch, or while actively engaged in some other investigative action that was directly related to the purpose of the initial stop. Valenzuela argued that the officer immediately moved away from his initial purpose (investigating the weaving across the lane divider) and launched into a more general criminal inquiry. The court ruled that the previous cases should not be so narrowly interpreted. "Our cases do not focus on the order of events. Rather, our cases focus on the reasonableness of the traffic stop in light of both the length of the detention and the manner in which it was carried out." Because the officer’s questions lasted only a few seconds, they did not “appreciably lengthen the duration of the stop.”
This case, and many others across the United States, emphasize that the nature of the questioning during a traffic stop or an investigative detention is not the critical issue. The question is whether the scope and length of the detention was justified. Unrelated questions may be asked while waiting for computer checks, writing a citation, or in a very brief moment that does not appreciably extend the length of the detention. Note that the court acknowledged that its prior rulings that an officer’s retention of driver license and other documents is significant in evaluation the scope of a detention. "These cases simply stand for the proposition that during a 'routine traffic stop, an officer's retention of a defendant's documents is significant because it indicates that the defendant, as a general rule, did not reasonably feel free to terminate the encounter and, therefore, the government cannot rely on the defendant's consent to justify further detention, questioning, or a search.' " United States v. Guerrero-Espinoza, 462 F.3d 1302 (10th Cir. 2006). Bottom line: Talk nice, and ask about weapons, alcohol, drug, etc., while otherwise investigating the reason for the stop, and/or in a brief moment, and/or when such questions are based on reasonable suspicion. United States v. Valenzuela, --- F.3d ----, 2007 WL 2007553 (10th Cir. 2007).
Arrest on recalled warrant does not require suppression of evidence
Herring went to the Coffee County Sheriff’s impound yard to check on one of his vehicles that had been impounded. As he was leaving, a deputy saw Herring, recognized him, and checked for an arrest warrant. When the deputy found no warrant in Coffee County, he asked a clerk to telephone the neighboring Dale County Sheriff and check for warrants. The Dale County Sheriff’s clerk stated that there was an arrest warrant for Herring. The deputy stopped Herring, arrested him, searched him, and found a handgun and some methamphetamine. However, within 10 to 15 minutes of the call to the Dale County Sheriff, the clerk called back and said that the warrant had been recalled and was not valid. Due to negligent recordkeeping by the court clerk, the warrant was “active” in the computer database. Herring asked to have the gun and drug evidence suppressed. The Court of Appeals refused, holding that the good faith exception to the Fourth Amendment exclusionary rule should apply. Though some courts have ruled that refusal to apply the good faith exception to such circumstances would deter sloppy recordkeeping, the Court of Appeals said that was not sufficient justification. The court also must consider whether the costs of suppression outweigh the societal benefits, whether there was misconduct by the police or other justice system actors, and whether refusing to apply the good faith exception would result in appreciable deterrence of misconduct. United States v. Herring, --- F.3d ----, 2007 WL 2033828 (11th Cir. 2007).
Barricaded suspect did not communicate refusal to consent to search; wife could still consent after suspect's arrest
An anonymous caller notified police that McKerrell was the subject of several arrest warrants, and that he was working in his front yard. Officers confirmed that McKerrell had 3 arrest warrants for a total of 8 charges. They went to his home to arrest him. McKerrell ran inside the home and barricaded himself. Within a few minutes, his wife and small child came outside. After some negotiation, McKerrell surrendered peaceably. Officers quickly transported him to jail. An officer spoke with Mrs. McKerrell and learned that she had full run of the home. She did all the laundry and opened every drawer and cupboard in the house. She consented to a search of the home. The search produced 4 illegally possessed guns.
McKerrell claimed that the search was invalid. He asserted that the act of barricading himself into the home was an implied or express denial of his consent to search. He argued that the rule of Georgia v. v. Randolph, 547 U.S. 103 (2006), should be interpreted as his implied or express denial of consent to trump his wife’s consent. McKerrell also argued that he would have further objected to the search if the police had not promptly taken him from the scene, preventing him from discussing the search with his wife or with officers. The Court rejected both claims. First, McKerrell’s act of barricading himself was not a clear communication that he did not consent to a search. It was an act resisting a lawful arrest. Officers could not be expected to read into his act some implied or expressed refusal of consent to search (which had not even been requested at the time of barricading). Second, the Georgia v. Randolph Court noted that the police could not remove a person from premises with an intent to prevent the person from raising an objection to consent to search by a co-tenant. In this case, removing McKerrell rapidly was part of a routine practice to complete an arrest. An officer testified that it was general practice to transport arrested persons as quickly as practicable. This decision joins numerous other decisions in the past year that illustrate that courts intend to interpret Georgia v. Randolph very narrowly. United States v. McKerrell, --- F.3d ----, 2007 WL 1936690 (10th Cir. 2007).
Allegedly excessive force in warrant execution does not require suppression of evidence
A woman told police that Ankeny had choked and kicked her when she confronted him about supplying illegal drugs to their 18 year-old son. She also said that Ankeny had threatened her with a gun, and that he lived with a prison buddy. An officer researched Ankeny’s criminal history and found numerous convictions for drug and violent crimes, as well as several outstanding warrants. Officers decided to arrest Ankeny at home. A SERT team executed a search warrant in the early morning hours. They used rubber bullets to breach windows and then tossed in flash bang devices. One landed near a recliner where Ankeny was sleeping. He suffered first and second degree burns. Another landed on a bed where a couple was sleeping. The mattress caught fire and could not be extinguished, so officers threw the burning mattress from a second story window.
Ankeny asked the court to suppress the drugs and guns found during the execution of the search warrant. He claimed officers used excessive force to serve the warrant. The Court of Appeals commented that the reasonableness of the entry force was a “close question.” For purposes of its analysis, the court assumed that the force was constitutionally excessive. However, even if truly excessive, the court ruled that “the discovery of the guns was not causally related to the manner of executing the search." The court opined that the guns and drugs would have been found no matter how officers decided to execute the warrant. Suppression was not the proper remedy, applying the causation analysis prescribed in Hudson v. Michigan, ---U.S. ----, 126 S.Ct. 2159 (2006). Ankeny was not without a remedy if he believed that officers used excessive force; he could sue for damages under civil rights provisions. United States v. Ankeny, --- F.3d ----, 2007 WL 1746323 (9th Cir. 2007).
Confession in triple murder upheld after possible ambiguous invocation of right to remain silent
Tiedemann shot and killed three persons in a home. Officers administered a Miranda warning to Tiedemann and he agreed to talk to them. He told the officers that he had been sniffing toluene. He also told officers that he had all kinds of mental problems and thought that he might be Adolf Hitler. When asked what happened to one of the victims, Tiedemann answered, “I don't want to talk about it.” The officers attempted to clarify exactly what Tiedemann did not want to talk about by asking, “What is it that you don't want to talk about?” Before Tiedemann responded, one officer asked, “You said murders in West Valley, where in West Valley?” The officer then tried again to clarify Tiedemann's response by asking, “what part do you and what part don't you want to talk to us about?” Again, before Tiedemann clarified, the other officer asked, “Edgar do you remember me reading you your rights earlier and you signing a waiver for us to search your home?” Tiedemann answered, “Ya.” The officers continued questioning Tiedemann about the murders. On appeal (following a long stay at the state mental hospital), Tiedemann claimed that he did not validly waive his Miranda rights, and if he did, he subsequently unambiguously invoked his right to remain silent.
The Supreme Court viewed the videotape of the confession and found that Tiedemann answered in the affirmative to each Miranda right question. The court stated: “The officers did not use ‘false friend’ or ‘half truth’ tactics. They made no threats or promises. The interrogation was less than one hour in length. The officers did not deny any special requests by the defendant. We could not find a single instance in which the officers mistreated Tiedemann or acted unethically in any way. Although Tiedemann was admittedly intoxicated at the time and was later found to be incompetent to stand trial, his mental condition alone, absent some abuse by the officers, is not enough to render his waiver invalid.” The Court then ruled that the officers properly allowed Tiedemann to clarify his statement that he didn’t want to talk “about it.” Tiedemann told officers that he did not want to talk about “Suzie” (one of the 3 victims) and officers scrupulously avoided asking about that murder. The Court found no basis to suppress the confession.
The Tiedemann case merits a careful reading for a couple of reasons. First, though the Chief Justice’s opinion comes first, it is her solo opinion. The majority opinion follows. The “dissent” by a single justice would have found that Tiedemann never unequivocally revoked his waiver and that all of the police questioning was patently proper. A second reason to read the case is to observe a great example of officers following the rules of the Fifth Amendment and obtaining an unquestionably valid confession. State v. Tiedemann, --- P.3d ----, 2007 WL 1856929 (Utah 2007).
General searches at NFL games upheld
Many professional sports arenas and civic centers ban firearms. Some (including the E Center, home of the Utah Grizzlies) even ban law enforcement officers from carrying weapons. Two recent court actions support the venue officials’ right to continue the practice. The National Football League enacted rules requiring above-the-waist pat down searches to deter terrorists from bringing explosives into NFL games. Johnson sued to stop the Tampa Bay Buccaneers from enforcing the rules. He was a season ticket holder who attended 3 games where he verbally protested the frisk, but complied with the rule. The court found that Johnson consented to the searches when he attempted to enter the stadium after being given notice of the search requirement. Johnson cited a case in which the same court had banned wide-scale frisks of protesters gathered near a military bases based on the protesters’ right to gather to exercise First Amendment rights. Attending a football game, while an all-American activity, did not carry the same constitutional protection. Johnston v. Tampa Sports Authority, --- F.3d ----, 2007 WL 1814197 (11th Cir. 2007).
Stark sued the Seattle Seahawks over the identical search policy. The court reached the same result, though through a different analysis. The court found that there was no Fourth Amendment violation because there was no government action. Though the stadium benefited from state financing, the government did not have a meaningful role in drafting or enforcing the search policy. Stark v. Seattle Seahawks, 2007 WL 1821017 (W.D. Wash. 2007).
Neither case really addresses whether off-duty law enforcement officers may be lawfully barred from carrying concealed weapons into venues. Though many state laws give officers the right to carry weapons at all times, on-duty and off-duty, private property owners may have the right to trump state weapons statutes. That is a question for another court on another day.
Masterful FBI undercover operation held constitutional
An FBI agent joined the National Man/Boy Love Association (NAMBLA) in 2001 and carefully conducted an undercover investigation and painstaking infiltration of the organization. NAMBLA is dedicated to opposing “all other restrictions which deny men and boys the full enjoyment of their bodies and control over their own lives.” After several years of gaining the trust of NAMBLA members, the agent discussed traveling to Mexico to engage in sexual activities with young boys. Mayer expressed interest and purchased airline tickets and hotel rooms through an undercover FBI travel agency. He used the ticket to fly to San Diego, where he was arrested. Mayer was charged and convicted with 18 U.S.C. § 2423(b), travel with intent to engage in illicit sexual activity. Mayer sought to have his conviction overturned on the grounds that the agent improperly infiltrated the man/boy sex association. Mayer claimed that the political goals of NAMBLA, as well as First Amendment free association rights, were impaired by the undercover operation. He relied on a case in which the Supreme Court held that the NAACP could not be compelled to disclose the names of its members. The court upheld the conviction. The FBI did not compel disclosure of NAMBLA members’ identities, even though the agent learned of numerous identities through his activities. The court stated that the agent’s activities were “clearly within the bounds of the Fourth Amendment.” The investigation was not intended to impair First Amendment rights; rather the agent was working hard to identify criminal activity against young boys. The agent respected the NAMBLA members’ constitutional rights, and acted as an “invited informer.” United States v. Mayer, --- F.3d ----, 2007 WL 1760668 (9th Cir. 2007).
A case one hopes to never need to apply
An officer attempted to arrest Barnes’ boyfriend. Barnes interfered with the arrest. During the arrest, the boyfriend handed a package to Barnes and she shoved it somewhere below the waist of her clothing. Barnes was arrested also. At the jail, the arresting officer suggested that Barnes be searched for the package. An officer told Barnes to disrobe and spread her buttocks. The officer saw something hanging out the anus and asked Barnes to pluck it out. Barnes refused, so the officer pulled on the exposed portion of the item. It was a bag of methamphetamine. The divided court of appeals ruled that plucking the item from the rectal muscles changed the strip search into a body cavity search. Body cavity searches generally require a warrant. Thus, the warrantless seizure of the protruding packet was unlawful. State v. Barnes, 159 P.3d 589 (Ariz. App. 2007).
Courts are divided on whether items hanging out from the rectal canal are subject “plain view” seizure in a jail search, or are integrated into the body and require a warrant to pluck out. Hughes v. Commonwealth, 524 S.E.2d 155 (Va. App. 2000) (bag hanging out required a warrant to retrieve); People v. More, 764 N.E.2d 967 (N.Y. 2002) (requiring warrant); State v. Jones, 887 P.2d 461 (Wash. App. 1995) (tube protruding from the anus required no warrant); United States v. Holtz, 479 F.2d 89 (9th Cir.1973) (no warrant required to pull protruding item out of vagina). Most courts do not require a warrant when the item is merely between the buttocks (not inserted into the rectum). People v. Walker, 810 N.Y.S.2d 592 (N.Y.App. 2006); People v. Wade, 256 Cal.Rptr. 189 (Cal. App. 1989); Commonwealth v. Thomas, 708 N.E.2d 669 (Mass. 1999); McGee v. State, 105 S.W.3d 609 (Tex. App. 2003).
Presence of attorney during interrogation excused Miranda warning requirement
Circumstantial evidence loosely implicated Vos in a murder. Vos hired attorney John Bucher to represent him. Bucher notified police that Vos wished to surrender and arranged for a surrender at Bucher’s office. A few days later, Bucher told police that Vos wished to make a statement. At the jail, Vos told police that he did not wish to speak to them. However, Bucher conferred privately with Vos and Vos then agreed to talk. Police interviewed Vos in Bucher’s presence, but did not give Miranda warnings. Vos then admitted to the murder.
Vos claimed that his lawyer provided poor advice and breached ethical standards. He also claimed that failure to give Miranda warnings mandated suppression of his statement. The Court of Appeals disagreed that Bucher’s advice was obviously deficient. Even if he did violate ethical rules, such rules did not provide a basis for suppression of evidence in a criminal trial. Courts are split on the issue of whether an attorney’s presence during a custodial interrogation excuses officers from giving Miranda warnings. The Utah court chose to follow the clear majority rule and hold that Bucher’s presence during the interrogation provided the right to counsel addressed in the Miranda warning. Thus, Vos’s statement was not suppressed. State v. Vos, --- P.3d ----, 2007 WL 1775055
(Utah App. 2007).
DUI traffic stop became unintentional de facto arrest requiring suppression
An off-duty trooper and his friend were driving on a rural dirt road when they came upon a truck parked in the middle of the road. Worwood, the driver of the truck, got into the truck and drove it to the side of the road to allow the trooper and his friend to pass. The trooper noticed a wet spot in the dirt, a beer can, and a cooler. The trooper pulled along side the truck and spoke with Worwood. The trooper pulled his vehicle alongside Worwood's to speak to him. During the conversation, the trooper observed that Worwood had bloodshot eyes and slurred speech. Getting out of his vehicle and moving closer to Worwood, the trooper could smell alcohol on Worwood's breath.
The trooper believed that Worwood was too impaired to be driving. Lacking a cell phone or radio, the trooper told Worwood that he could not let him drive and asked Worwood to come with him to the trooper’s home. The trooper’s friend drove Worwood’s truck to a farm nearby and called for an on-duty officer to respond to the trooper’s home. After SFST’s, Worwood was arrested for DUI. His BAC test results were .248. Worwood later claimed that he had been illegally seized and subject to a de facto arrest. The Court of Appeals ruled that Worwood had been the subject of a legitimate investigatory detention and that driving him a short distance to the trooper’s home was a reasonable extension of the detention.
The Utah Supreme Court reversed, holding that the trooper exceeded the bounds of an investigative detention. Thus, the detention became a de factor arrest, unsupported by probable cause. The court agreed that the trooper’s initial stop was justified by observation of the large water spot on the road, a crushed beer can, and later, a cooler. The trooper also saw Worwood behind the wheel of his truck and smelled alcohol on Worwood's breath.
There are circumstances when transporting a suspect from the scene of an initial detention does not create an arrest. However, in this case the court noted that there was no evidence in the record that the field sobriety tests could not have been performed on the gravel road, or that transporting Worwood was necessary to preserve the trooper’s safety. It may well be that the terrain or other circumstances dictated that field sobriety tests were not feasible at the scene of the stop. Similarly, there may have been valid officer safety concerns that suggested transporting Worwood. Nonetheless, there was no evidence introduced at the trial court of such possibilities. This prevented the Supreme Court from justifying the prolonged detention and the transportation away from the scene of the stop on some alternative grounds. This case is a reminder of not only thorough reporting of all relevant facts and circumstances, but also educating prosecutors about those facts. State v. Worwood, --- P.3d ----, 2007 WL 1791238 (Utah 2007).
Passengers are "seized" during traffic stops
Every good street cop knows that a traffic stop must be based on at least reasonable suspicion of criminal activity. Officers know that the driver is “seized” by the traffic stop, and has the protection of Fourth Amendment rights to be free from unreasonable seizure. A stop lacking reasonable suspicion (or probable cause) is generally regarded as “unreasonable” and is an invitation to suppression of any evidence found and is possibly grounds for a civil suit for wrongful detention. Until the recent U.S. Supreme Court decision in Brendlin v. California, --- U.S. ---, 2007 WL 1730143 (June 18, 2007), officers didn’t know whether the passengers in a vehicle were “seized” and could legally challenge a stop made without reasonable suspicion.
The facts of Brendlin’s case represent a common outcome of so-called “routine” traffic stops. Bruce Brendlin was a passenger in a car stopped by a California officer. The officer had spotted the car’s temporary registration while it was parked and had confirmed that the permanent registration was in process. After stopping the car, the officer recognized the passenger as “one of the Brendlin brothers” and checked for warrants. The officer found an parole violation arrest warrant for Bruce Brendlin. The officer arrested Brendlin, searched him, and found drug evidence.
The prosecutor conceded that there was no valid basis for the stop because the officer knew that the registration was valid and the officer had seen no other violation. However, the prosecutor argued that Brendlin was not seized by the traffic stop. Instead, Brendlin was seized only when the officer recognized him as the likely subject of an arrest warrant and took some action to detain him. The California Court of Appeals sided with Brendlin, but a narrowly-divided California Supreme Court reversed, and ruled that Brendlin was not seized until after the officer had independent reasonable suspicion to detain him to inquire about the warrant. The California Supreme Court relied on the U.S. Supreme Court decision in California v. Hodari D., 499 U. S. 621 (1991), in which the Court noted that a person is not seized until actually submitting to a show of police authority. The California court asserted that because only the driver had the ability to comply with a police signal to pull over, only the driver had actually submitted to police authority and was seized.
Justice Souter offered the opinion of a unanimous court. Though the current Supreme Court has delivered several unanimous decisions, including last year’s strongly pro-public safety decision in Brigham City v. Stuart, a unanimous decision with a common opinion in favor of a suspect’s rights is a first for the Court lead by Chief Justice Roberts. Focusing on the objective standard of whether a reasonable person would have believed that he or she was free to leave, Justice Souter said that the Court’s “intuitive conclusion” lead it to conclude “that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission." A reasonable passenger in a vehicle stopped by police would "expect that a police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his [or her] safety."
The Court noted its previous ruling in Maryland v. Wilson that permits officers to require the driver and any passengers to remain in the car, or to get out of the car, solely to preserve the officers’ safety. Maryland v. Wilson, 519 U.S. 408 (1997). Justice Souter explained that Brendlin’s act of remaining seated in the car may well have signaled his submission to police authority. Some courts have relied on Maryland v. Wilson to rule that officers may require the driver and passengers to remain inside the car. Rogala v. District of Columbia, 1616 F.3d 44 (D.C. Cir. 1998). Other courts extend the rule to require the driver and passengers to keep hands in plain sight during the traffic stop. United States v. Moorefield, 111 F.3d 10 (3rd Cir. 1997); King v. State, 696 So.2d 860 (Fla. App. 1997).
A majority of courts considering the issue, including nine federal circuit courts of appeal, had previously ruled that passengers were seized when a driver submits to a traffic stop. Only the supreme courts in California, Colorado and Washington had diverged from the majority view. Thus, the Brendlin decision does not dramatically alter the legal landscape for most officers, but it does provide a note of caution, and still leaves open several important questions about officers’ interactions with passengers. The decision may not even help Bruce Brendlin. The Supreme Court sent the case back to California to decide whether Brendlin’s status as a parole fugitive impacts his standing to challenge the admittedly-improper stop.
Brendlin v. California holds that passengers are “seized” and that officers should look for reasonable suspicion of criminal activity by the passenger if the officer intends to particularly detain the passenger or demand that the passenger comply with some order. However, a careful reading of Brendlin reminds officers that the standard for a traffic stop is relatively low—reasonable suspicion of any violation justifies a stop. Even if the officer subjectively intends to pursue a drug investigation, a traffic stop may be based on a broken tail light, or missing license plate light, or any similar minor violation.
Brendlin also did not reach another topic of hot discussion among courts, the extent of permissible questioning of passengers. Many courts have ruled that officers may routinely ask both the driver and passengers about loaded weapons in the car, without any reasonable suspicion. United States v. Holt, 264 F.3d 1215 (10th Cir. 2001) (en banc) (“We therefore conclude that allowing officers to ask about the presence of loaded weapons in a lawfully stopped vehicle will promote the government’s ‘legitimate and weighty’ interest in officer safety”); United States v. Purcell, 236 F.3d 1274 (11th Cir. 2001).
Some commentators wrongly suggest that officers cannot even ask passengers’ names and can never request identification documents. One court relied on the Supreme Court decision in Muehler v. Mena to establish the bright line rule that an officer may ask a passenger for identifying information. United States v. Hernandez, 418 F.3d 1206 (11th Cir. 2005) (“arguments that the trooper asked questions unrelated to either officer safety, the speeding offense, or processing the citation are not determinative of our evaluation of the constitutionality of the seizure here. We are to look only at the duration of the seizure given all the circumstances: was it for an unreasonable time?”). When an officer uses a friendly, conversation tone (talk nice, think mean!) to request passenger identification, most courts rule that the request is voluntary and requires no reasonable suspicion of criminal activity. State v. Williams, 590 S.E.2d 151 (Ga. App. 2003); State v. Smith, 683 N.W.2d 542 (Iowa 2004); People v. Jackson, 39 P.3d 1174 (Colo. 2002). Other courts have allowed officers’ requests for passenger identification based on the need to record witnesses’ names, even on a traffic citation. State v. Jones, 5 P.3d 1012 (Kan. App. 2000), aff’d, 17 P.3d 359 (Kan. 2001); State v. Chagaris, 669 N.E.2d 92 (Ohio App. 1995); People v. Grant, 266 Cal.Rptr. 587 (Cal. App. 1990).
Brendlin v. California should not raise an alarm as an expansion of suspects’ rights. Instead, read between the lines and understand that the Supreme Court is not only affirming the majority view, but is reminding officers of the great leeway allowed in traffic and investigative detentions.
Don't spit on the sidewalk! (and don't squat with your spurs on)
Cabral worked at the home of a family that had a mentally challenged adult daughter. When the daughter became pregnant, family members suspected Cabral based on the daughter’s statements and the time period that he worked at the house. A number of suspects, including Cabral, were asked to voluntarily submit to DNA testing. Cabral refused. The family hired an off-duty officer to investigate Cabral. The investigator arranged for Cabral to go to the home of a private investigator under the pretense of hiring Cabral for plumbing labor. Once there, the investigator saw Cabral spit on the sidewalk. The investigator collected the saliva. DNA collected from the saliva helped convict Cabral of rape of the mentally challenged woman.
Cabral appealed, claiming an expectation of privacy in the expectoration of saliva. He said that his refusal to voluntarily provide a spit sample showed that he intended to retain his privacy interest in his saliva. Cabral should have listened to Dr. Samuel Crumbine, author of the “don’t spit on the sidewalk” public health campaign to eliminate tuberculosis. The court ruled that Cabral had abandoned his expectorant on the sidewalk. If he had shown some intention to retrieve the spit, he would have retained an expectation of privacy in it. Commonwealth v. Cabral, 866 N.E.2d 429 (Mass. App. 2007).
"Talking nice" beats claim of custody, also shows voluntariness of consent
Parkin was involved in a traffic crash. An officer asked Parkin to sit in his patrol car to complete the crash report. Parkin sat in the car for approximately 10 minutes, 8 minutes of which were passed with questions about the crash details. The officer asked Parkin whether he had been smoking marijuana or had been around others smoking weed. The officer then asked Parkin to consent to a vehicle search. Parkin agreed. The officer subsequently arrested Parkin for possession of cocaine.
Parkin argued that he should have received Miranda warnings prior to speaking with the officer, alleging that he was in custody during the time of questioning. Utah courts (like most others) generally consider several factors in evaluating custody: (1) the site of interrogation; (2) whether the investigation focused on the accused; (3) whether the objective indicia of arrest were present; and (4) the length and form of interrogation. Though Parkin was in a police cruiser, this factor did not suggest custody because he was seated there for convenience in completing the crash investigation. He was not commanded to be seated in the car. The investigation focused on the crash, rather than on Parkin as a drug suspect. Thus, the focus of the investigation did not suggest custody. The third factor, indicia of arrest, also worked against Parkin. He was not handcuffed or otherwise restrained. Although the cruiser’s emergency lights were on, they served to warn of the crash, not to intimidate or restrain Parkin. Finally, the questioning about the marijuana was brief and not accusatory. The officer “talked nice, thought mean.”
Parkin also claimed that his consent to search the car was involuntary. The court easily rejected that claim. The officer “did not use intimidating words or threaten Parkin in any way, and he used no force. Further, he specifically made a request, rather than a demand, to search Parkin's car, and the record shows that Parkin fully cooperated with the officer's request. There is no evidence that the officer deceived or tricked Parkin into consenting to the search.” Talking nice when asking consent helped to establish the voluntariness of Parkin’s consent. State v. Parkin, 2007 WL 1649893 (Utah App. 2007).
Third party notice may prompt reinterrogation of suspect who has invoked the right to counsel
Van Hook picked up a man in an Ohio bar, went home with the man and killed him. Van Hook was arrested 2 months later in another state. After an equivocal invocation of the right to counsel, officers did not question him. Some time later, a detective from Ohio arrived to facilitate Van Hook’s extradition. The detective had information from Van Hook’s mother that Van Hook wanted to talk to the detective. The detective spoke to Van Hook, who confirmed that his mother had told him to tell the truth and he would answer the detective’s questions.
When a suspect invokes the right to counsel during interrogation, anofficer may not question the suspect further unless the suspect initiates the conversation. Edwards v. Arizona, 451 U.S. 477 (1981). Several courts have now ruled that an officer may reasonably rely on notice from a third-party that the suspect wishes to speak with police. The officer may then approach the suspect, obtain a knowing and intelligent waiver, and question the suspect. Van Hook v. Anderson, --- F.3d ----, 2007 WL 1501249 (6th Cir. 2007).
K9 sniff of apartment hallway does not require probable cause
An apartment maintenance worker told police that Davis had grow lights in his apartment and would not allow workers into the apartment to fix a water leak. A drug detector dog sniffed the hallway outside Davis’s apartment and gave a response indicating the odor of controlled substances. Officers obtained a search warrant and found illegal drugs and paraphernalia. Although U.S. Supreme Court decisions have consistently held that a sniff by a trained drug detector dog does not normally constitute a “search,” the Minnesota Supreme Court has used its state constitution in past cases to rule that a sniff of a storage locker is a search requiring reasonable suspicion, not probable cause.
Davis asked the Minnesota Supreme Court to rule that a dog sniff outside his door required probable cause, relying on Kyllo v. United States, 533 U.S. 27 (2001). In Kyllo, the Court ruled that the use of thermal imaging devices to detect grow lights constituted a search of the interior of a home and required probable cause. The court refused, though some justices suggested that the decision might be different if the dog intrudes on the cartilage of a home, rather than the common area of an apartment building. State v. Davis, --- N.W.2d ----, 2007 WL 1500494 (Minn. 2007).
Many courts have required neither reasonable suspicion nor probable cause for sniffs of publicly accessible areas around a home. United States v. Brock, 417 F.3d 692 (7th Cir. 2005) (sniff outside of private room door not a search when consent to sniff common areas granted by roommate), cert. denied, ___ U.S. ___, 126 S.Ct. 2306 (2006); United States v. Roby, 122 F.3d 1120 (8th Cir. 1997) (sniff in hotel hallway not a search); People v. Dunn, 77 N.Y.2d 19 (1990), cert. denied, 501 U.S. 1219 (1991) (sniff at front door of apartment not a search); United States v. Tarazon-Silva, 960 F.Supp. 1152 (W.D. Tex. 1997), aff’d, 166 F.3d 341 (5th Cir. 1998) (sniff of dryer vent near driveway not a search); United States v. Vasquez, 909 F.2d 235 (7th Cir. 1990) (sniff of exterior of garage not a search), cert. denied, 501 U.S. 1217 (1991); State v. Smith, 2004 WL 213395 (Tex. App. 2004) (sniff of garage door not a search), cert. denied, 544 U.S. 961 (2005). One court has applied a state constitution to rule that a sniff in a driveway requires reasonable suspicion. State v. Tackitt, 67 P.3d 295 (Mont. 2003).
Court reverses its precedent on police liability when no K9 warning is given
Szalba was sleeping in a public park in the early morning when a police service dog bit him. Officers were searching for a suspect in an unrelated incident and Szalba appeared to be a hiding suspect. Officers did not give a verbal warning in the park before sending the dog to search for the suspect. Szalba sued, claiming that deploying a police service dog trained to bite and hold, without first giving a verbal warning, constituted excessive force. As previously reported in Xiphos, the Eighth Circuit Court of Appeals ruled in Szalba’s favor, holding that a jury could lawfully conclude that a police service dog deployment policy that did not require a warning is an objectively unreasonable policy. Moreover, the appellate judges held that the policy created a constitutional violation (thereby triggering municipal liability for the dog bite).
Now two years later, the full panel of judges of the Eighth Circuit has reversed the earlier decision, now siding with the officers and the city and ordering summary judgment on their behalf. The court acknowledged that its decision is inconsistent with another decision of the Eighth Circuit, Kuha v. Minnetonka, 365 F.3d 590 (8th Cir. 2004), in which the court stated that it may be "objectively unreasonable to use a police dog trained in the bite and hold method without first giving the suspect a warning and opportunity for peaceful surrender." In the present case, the court ruled that the city’s policy was facially valid even though it did not require a verbal warning before deploying a dog trained to bite fleeing and hiding suspects. Explicitly citing Kuha in this manner amounts to explicitly overruling the opinion. The court reasoned that the city’s lack of a verbal warning requirement did not amount to deliberate indifference by administration officials to refrain from giving warnings. Nor did the court agree with Szalba that the lack of a warning policy unconstitutionally encouraged excessive force. In many circumstances, providing a verbal warning to a hidden suspect may create a greater danger to the officers and to the public. The court’s opinion acknowledged that Szalba’s bite was a one-time incident and there was no evidence of a pattern of unwarned bites.
Four of the court’s twelve judges dissented, and would have left the precedent of Kuha and the prior Szalba opinion stand. Wherever practicable, a warning should be given prior to deploying a police service dog to find and apprehend a suspect. However, there will always be cases where safety precautions trump giving a warning. In this case, the handler testified that he gave the dog a “track” command that communicated to the dog to find and bite the suspect, rather than a “search” command, which would not likely have resulted in a bite, because the handler was concerned about the officers’ safety as the dog entered an enclosed park shelter. Szabla v. Brooklyn Park, --- F.3d ----, 2007 WL 1452595 (8th Cir. 2007) (en banc).
"Talking nice" leads to finding of a voluntary encounter and admissible evidence
An officer noticed Campbell driving in an area of closed businesses that recently had a rash of auto burglaries and other crimes. The officer saw Campbell get out of a car and walk toward a closed business as he talked on a cell phone. The officer approached Campbell and asked him if he needed help. Campbell said that he was looking for his girlfriend’s place of employment and gave the cell phone to the officer. A woman confirmed Campbell’s story. The officer gave Campbell directions to the correct building. The officer asked if he could see Campbell’s ID, just to record to whom he had been speaking. Campbell said that he didn’t have any ID. The officer told Campbell that he could be on his way “just as soon as I ID’d him.” Campbell provided a false DOB and an alias. When the officer could not confirm the false information, he continued to ask Campbell for his true identity. Just then, a back-up officer arrived and the officer asked Campbell to consent to a frisk. Campbell did not object. The officer asked him about a bulge in the front pocket. Campbell said that he did not know what was in his pocket and he gave the officer permission to reach in and take the bulging item. The officer pulled out several bags of marijuana.
The officer arrested Campbell and searched his car, finding a handgun. Ultimately Campbell was identified as a NY parole fugitive. Campbell claimed that the initial contact was a detention unsupported by reasonable suspicion of criminal activity. Therefore, Campbell claimed, all of the evidence found in the frisk and searched stemmed from an illegal detention and was inadmissible. The trial court agreed that the officer created a Level Two detention merely by asking for identification and that the detention was not supported by reasonable suspicion of criminal activity. The Court of Appeals reversed, ruling that there was no Level Two detention prior to the frisk. Rather, Campbell and the officer were engaged in a voluntary Level One encounter.
The court’s reasoning is particularly important to those who follow the practice of “talk nice, think mean” (like UHP Lt. Jeff Chugg and the very successful drug interdiction crew). The officer’s language and tone in the request for identifying information kept the encounter on a voluntary basis (requiring no reasonable suspicion). The court stated that the officer’s "use of the word 'like,' as opposed to 'need' or 'want,' suggests that a reasonable person would feel free to decline this request [for identification] and leave the scene." “Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would include . . . the use of language or tone of voice indicating that compliance with the officer's request might be compelled.” The officer was careful to state that he would like to see ID so that he could document the encounter did not amount to telling Campbell that his freedom to leave was conditioned on producing identification. The fact that the officer saw Campbell driving, coupled with Campbell’s claim that he had no identification (such as a driver license) created probable cause to believe that Campbell committed a misdemeanor driving without a license in possession, and justified a detention. United States v. Campbell, --- F.3d ----, 2007 WL 1501281 (6th Cir. 2007).
DNA obtained by trickery admissible in 20 year-old murder
In 1982, officers found the seminude body of a 13 year-old girl in a cardboard box. Semen was found in her vagina. Athan was a suspect and was questioned, but never arrested. Two decades later, cold case detectives requested a new examination of the biological evidence, using new DNA technology. A DNA profile was obtained. Detectives were fearful that Athan, now living on the east coast, would flee to relatives in Greece if he knew of the revived investigation. They created a fictitious law firm (listing the cops’ names as partners) and sent Athan an invitation to participate in a class action lawsuit over parking tickets. He replied. A DNA sample was extracted from the glue on the return envelope. It matched the DNA profile of the suspected killer. Detectives traveled to New Jersey and arrested Athan. A second DNA sample, obtained by search warrant, also matched.
Athan argued that he had a privacy interest in his saliva. The Washington court considered the claim under its state constitution before turning to a federal constitutional analysis. Washington courts are known for deviating from federal constitutional jurisprudence. However, the Washington Supreme Court ruled that Athan did not have any privacy interest in his saliva under the state constitution, particularly where the saliva was used merely to identify him and no invasive means were used to obtain the saliva sample. The court compared the licking of the envelope to spitting on the sidewalk or trashing a cigarette butt. The court also rejected Athan’s claim that the officers had intruded on an attorney-client privileged communication by pretending to be attorneys (though one justice agreed that this should have been sufficient grounds for suppression). The court compared the law firm ruse to detectives who impersonate teens in Internet chat rooms in order to catch sexual predators. State v. Athan, --- P.3d ----, 2007 WL 1365301 (Wash. 2007).
Brigham City v. Stuart applied in home search
Police received a 911 call from a woman stating that she was having trouble breathing. When officers responded to the home, no one answered at the door or on the phone. Officers broke into the home and found no one. They left. A short while later, an officer received a call from Nicolai stating that his wife was overdue from picking up her two children at her ex-husband’s home and that the ex had a violent temperament. The officer realized that Nicolai was referring to the same address as the 911 call. Officers returned to the home and entered to search for any clues to the location of the missing woman and two children. They found property documents that lead to other homes owned by Larsen, as well as a large blood stain on the carpet and bloody clothing and duct tape in a garbage bin. The two children were later found unharmed in Larsen’s custody. Larson’s ex-wife was found injured, but alive, a day later stuffed into a garbage can in Larsen’s storage unit.
Larsen claimed that the second warrantless search of his home was unlawful because officers already knew that there were no injured persons inside his home. Applying the recent United States Supreme Court decision in Brigham City v. Stuart, the court upheld the admissibility of evidence found in the search. The court emphasized that “whether a warrantless home entry is justified based on the need to render assistance or prevent harm is judged by an objective test.” Citing several other states’ decisions allowing entry into homes to find kidnapping victims, the court stated that “to enter premises to rescue a threatened kidnap victim thought to be within, then surely it must likewise be permissible to make an immediate warrantless entry upon a reasonable belief that information therein will disclose where that victim is being held.” State v. Larsen, --- N.E.2d ---, 2007 WL 1266883 (Wis. App. 2007).
Seizure of suspect's property from jail booking allowed without a warrant
Messer bought several gallons of iodine tincture in January. Suspecting that Messer had no livestock (to wit, a cowboy that is “all hat, no cattle”), the farm supply store clerk notified police of the abnormally large and out-of-season purchase. A few days after this report, officers spotted Messer driving with his girlfriend, Hardy. Association with another felon was a violation of Messer’s parole. The officers signaled Messer to stop and he fled. During the pursuit, Messer opened the car door and pushed Hardy out. Not surprisingly, she later decided to cooperate with police against Messer. Hell hath no fury like a woman scorned, or kicked out of a speeding car.
Officers caught Messer and arrested him. During the booking search, they found some keys and a Radio Shack two-way radio. Not then believing that these items had any evidentiary value, the officers booked the property. Messer asked to turn his property over to a friend, who just happened to be booking out of the jail at the time Messer was booking in. Officers declined his request. Still sore from being booted out of the car, Hardy told officers about Messer’s meth lab on Hasch’s property. Hasch gave officers permission to enter his property and showed them a car on cinder blocks that Messer left there. Hasch consented to a search of the car, and stated that Messer also had a key to the car. Officers found bags with meth production paraphernalia bearing Messer’s fingerprints. They also found packaging for a Radio Shack two-way radio.
Returning to the jail, the officers seized Messer’s keys and the radio from the jail property locker. One of the keys fit the meth lab car. Messer argued that the seizure of his property once it had been seized under an administrative search (the booking search) it could not be searched and seized for evidentiary purposes. The Utah courts have never before faced this question. The Court of Appeals ruled that the second search and seizure was proper, relying on United States v. Edwards, 415 U.S. 800 (1974). In Edwards, officers searched Edwards’ pants for paint chips that placed him at the scene of a crime. The pants had been seized during the booking process when Edwards was required to change into a jail uniform. The Edwards Court stated: “once the accused is lawfully arrested and is in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and subsequent administrative processing, on the one hand, and the taking of the property for use as evidence, on the other.”
Officers should not read the Messer decision too broadly. The decision does not address a slightly different situation where the challenged activity was not simply the seizure of items which the police had previously discovered and retained, but instead a true re-search of the defendant's possessions. In a case cited by Messer, the police initially conducted a cursory review of a diary while performing an inventory search, and, later, they performed a second, more thorough review of the diary and discovered that it had evidentiary value. In that case, the court determined that such a search was not allowed because it was an actual second search, not merely an evidentiary seizure of items already known and administratively seized. State v. Messer, --- P.3d ----, 2007 WL 1500814 (Utah App. 2007).
Frisk during search warrant execution upheld
Officers obtained a search warrant for a home where they believed Gerrish, a parole fugitive, was hiding. After knocking and announcing and receiving no response, officers forced the door and found a man and a woman heading for the back door. Not knowing whether the man was Gerrish or some other occupant, an officer ordered the man (later identified as Marquez) to the floor, handcuffed him, and frisked him. Feeling a large bulge in Marquez’s pocket, the officer asked him what was in the pocket. Marquez replied that it was “paraphernalia.” The officer found a syringe and a spoon in the pocket.
Marquez claimed that the frisk was unlawful due to a lack of reasonable suspicion of criminal activity and a belief that he held a weapon. Marquez also asserted that once he was handcuffed, the frisk did not promote safety interests. The trial court refused to suppress the evidence found in the frisk because the officer did not know at the time of the frisk whether the subject was Gerrish (the target of the warrant) or not.
The Court of Appeals upheld the frisk. The court noted that handcuffing was permissible. “Handcuffing occupants of premises searched under warrant does not necessarily exceed the scope of a reasonable detention because of the need for officers to exercise unquestioned command of the situation for safety purposes.” As long as officers reasonably believe that handcuffing is necessary to preserve safety, handcuffing the occupants of a home searched pursuant to a valid warrant is proper.
The next question is whether the frisk was proper under Terry v. Ohio. Courts answer this question on a case-by-case basis, considering the totality of the circumstances. The court found that frisking Marquez was proper. The search warrant sought a fugitive believed to be hiding out in the residence. The officer did not know whether he was dealing with Gerrish or Marquez, both of whom share the same general identifying characteristics. Moreover, the search was executed at night. These factors were sufficient to warrant a frisk. Marquez argued that the frisk could not be justified because Gerrish’s underlying crime was a drug crime. Though Utah courts (and many others) have upheld frisks where the underlying crime was burglary, rape, assault, etc., the courts have not gone so far as to generally approve frisks for drug crimes. However, the court pointed out that Marquez’s argument was flawed because it ignored other factors justifying the frisk. State v. Marquez, --- P.3d ----, 2007 WL 1438571 (Utah App. 2007).
Asking questions about drug trafficking during a routine traffic stop is permissible
A trooper stopped Olivera-Mendez for speeding. The trooper noted the strong smell of air freshener as he spoke to Olivera-Mendez. The car had a temporary registration from Illinois, in the name of Daniel Garcia, but the plates were from Washington. The title, generally a two-sided document, had only one side. Olivera-Mendez presented a photocopy of a temporary driver license. When no registration was found on file using the license number, the trooper check the VIN and confirmed that Olivera-Mendez was the actual owner. The trooper suspected that Olivera-Mendez might be carrying drugs and asked about drug trafficking. This extra questioning extended the stop by less than 30 seconds. While awaiting the results of a driver license check, the trooper conducted a sniff of the exterior of the car with his drug detector dog. The dog gave a final response to the odors of controlled substances. The trooper searched the car and found no drugs. However, he found Bondo body filler, mismatched paint, and an air freshener in the cargo area. The trooper had the car towed to the highway patrol station. After a six hour search by several troopers with no results, the trooper obtained a warrant to drill into the car. The drill bit struck gold (actually, cocaine) and the trooper found a hidden compartment and 15 kilos of cocaine.
Olivera-Mendez claimed that the off-topic questioning impermissibly extended the stop and thus tainted the evidence found thereafter. The court of appeals disagreed, relying on Muehler v. Mena, 544 U.S. 93 (2005), In Muehler, the Supreme Court ruled that the subject matter of police questioning may be totally unrelated to the reason for the detention and does not thereby create an additional seizure. The Muehler court did not specifically address a minor extension of the detention to ask off-topic questions.
The court agreed with several other circuit courts of appeals that the brief extension of a traffic stop to ask off-topic questions is permissible. United States v. Alcaraz-Arellano, 441 F.3d 1252 (10th Cir. 2006); United States v. Burton, 334 F.3d 514 (6th Cir.2003); United States v. Childs, 277 F.3d 947 (7th Cir.2002). Though the Eighth Circuit had previously ruled that asking off-topic questions, such as questions about weapons, alcohol and drugs, was impermissible at a traffic stop, the court recognized that its prior rulings could not survive the logic of Muehler. United States v. Olivera-Mendez, --- F.3d ----, 2007 WL 1296781 (8th Cir. 2007).
No duty to ask about password protection when father gave consent to search computer for child pornography
ICE Agents investigating a credit pay service that forwarded payments to child pornography sellers became aware that child pornography was possibly being send to an email address traced to Andrus’s home. Agents learned that Andrus worked at a school. They began periodic surveillance and other investigations, and ultimately decided to try a knock-and-talk at Andrus’s home. Andrus’s 91 year-old father, Dr. Bailey Andrus, answered the door and let the officers in. He told the agents that Ray Andrus lived in the home with his parents, did not pay rent, and the father had free access to his son’s room. He said that he would knock on the door if it were shut. The agents asked about computers in the home. The father showed agents the computer in Andrus’s room and gave written consent to search the computer. An ICE agent began a scan of the hard drive and quickly found child pornography. The agent used En-Case, which bypassed the password protection. In the meantime, others agents continued conversing with the father. Upon learning that Andrus had the only computer in the home, they stopped the computer scan and telephoned Andrus at the school. Andrus consented to a search and the computer scan resumed.
Andrus claimed that his father did not have authority to consent to the search of his computer. The trial court ruled that the father did not have actual authority to consent, but found that the father had apparent authority to consent and that officers reasonably relied on the apparent authority to consent. The court based its ruling on the following factors: (1) the email address bandrus@kc.rr.com, an address associated with Dr. Bailey Andrus, was used to register with the payment service and purchase child pornography; (2) the father told the agents he paid the household's internet access bill; (3) agents knew several individuals lived in the household; (4) Ray Andrus's bedroom door was not locked (and was in fact open), leading a reasonable officer to believe other members of the household could have had access to it; and (5) the computer itself was in plain view of anyone who entered the room and it appeared available for anyone's use.
On appeal, Andrus claimed that the agents should have asked his father about or looked for password protection. The Tenth Circuit Court of Appeals disagreed. The court held that the agents reasonably relied on factors showing apparent authority to consent to a search of the computer and had no need to inquire any further. In a case reported earlier this year in Xiphos, United States v. Buckner, 473 F.3d 551 (4th Cir. 2007), the court sustained a computer search when officers searched a password protected computer pursuant to the suspect’s wife’s consent. She opened the files (indicating that she knew the password) for officers to examine. In an earlier case, the same court ruled that a cohabitant girlfriend did not have authority to consent to a computer search of a jointly-used computer where the suspect had his own password-protected files and the girlfriend did not know the password. Trulock v. Freeh, 275 F.3d 391 (4th Cir. 2001). The Sixth Circuit Court of Appeals noted that the lack of password protection on a computer shared by husband and wife mitigated in favor of the wife’s ability to consent to a search of the computer. That court also ruled that if officers found information during the search that suggested that the wife did not have actual authority to consent, the officers did not need to stop the search. United States v. Morgan, 435 F.3d 660 (6th Cir. 2006). In this case, the court noted that the father owned and occupied the house, the father paid for the internet service, the father had general access to Andrus’s room, and the computer in Andrus’s room was in the open and seemed available for other occupants’ use. The Tenth Circuit held that he agents had no obligation to inquire about password protection prior to the search. Nonetheless, the court commended the agents for halting the search when they learned that the father did not use the computer, and until they obtained consent from Andrus to proceed. United States v. Andrus, --- F.3d ----, 2007 WL 1207081 (10th Cir. 2007).
"Reasonableness" is the standard for use of force liability for deputy in vehicle pursuit
The big legal news of the week is the 8-1 Supreme Court decision upholding the use of force against a fleeing suspect. Harris lead sheriff’s deputies on a ten minute high speed pursuit. Understanding that a PIT maneuver would not be safe at 85 miles an hour, Deputy Scott rammed Harris’s car to end the pursuit. Harris crashed and suffered paralyzing injuries. Harris sued under 42 U.S.C. §1983, claiming that Scott violated his Fourth Amendment right to be free from unreasonable seizures.
The court held that the Fourth Amendment is not violated when an officer uses ramming force to end the pursuit, even though the officer could know that the fleeing driver could suffer injury or even death. The forcible seizure is constitutionally permissible. The case came to the Supreme Court from the Eleventh Circuit Court of Appeals in the context of whether the officers were entitled to qualified immunity. Motions to dismiss a lawsuit based on qualified immunity require a court to see the facts in the light most favorable to the plaintiffs. In this case, the Supreme Court noted that the compelling evidence of the deputy’s dash camera should have been accepted by the lower courts, though it contradicted the plaintiff’s version of the events. The lower court "should not have relied on such a visible fiction; it should have viewed the facts in the light depicted by the videotape." The video shows Harris swerving around over a dozen cars, forcing vehicles traveling in both directions off the road. Harris claimed (and the lower court accepted) that he "remained in control of his vehicle, slowed for turns and intersections, and typically used his indicators for turns." In a historical step, the Supreme Court posted the entire video on its web site. The video of the pursuit is found at http://www.supremecourtus.gov/opinions/video/scott_v_harris.rmvb
The Supreme Court rejected Harris’s claim that the deputy’s force violated the rule of Tennesee v. Garner. Justice Scalia wrote that "it is quite clear" that the deputy's actions were objectively reasonable within the meaning of the Fourth Amendment. Harris claimed that Garner prohibits the use of deadly force to seize a person unless (1) the suspect poses an immediate threat of physical harm to an officer or others; (2) deadly force is necessary to prevent the suspect's escape; and, (3) if feasible, the officer gives some warning of his impending use of deadly force. The Supreme Court responded that "Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer's actions constitute 'deadly force.' Garner was simply an application of the Fourth Amendment's 'reasonableness' test." Moreover, the threat posed by the fleeing driver was not even remotely comparable to the threat posed by a fleeing unarmed burglar. "It is clear from the videotape that Harris posed an actual and imminent threat to the lives of any pedestrians who might have been present, to other civilian motorists, and to the officers involved in the chase." The Court also stated that it was appropriate for courts to take into account the “relative culpability” of fleeing plaintiffs in assessing the reasonableness of the force used to seize.
The Supreme Court explicitly rejected a termination of pursuit rule. “We are loath to lay down a rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly that they put other people's lives in danger. Every fleeing motorist would know that escape is within his grasp, if only he accelerates to 90 miles per hour, crosses the double-yellow line a few times, and runs a few red lights."
In sum, the impact of this landmark case is:
1. Force used to seize is measured by “reasonableness.” This decision should have a great impact on courts in the Ninth Circuit, where the Court of Appeals muddied the waters in Smith v. Hemet with its twisting of the definition of “deadly force” to include virtually any force likely to cause serious injury or death. K9 handlers and those who use less-lethal technologies should breath a sigh of relief.
2. “A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”
3. There is no requirement to terminate a pursuit to minimize the risk of death or serious bodily injury when justification to pursue continues. However, wisdom may trump the law, and there may often be good reasons to terminate a lawful pursuit.
4. Dash cams are a darn good investment!
Scott v. Harris, 550 U.S. ----, 2007 WL 1237851 (2007).
State constitutions may further restrict officers' actions
Occasionally I hear complaints from attorneys and officers that Utah’s appellate courts are out of step with the United States Supreme Court and other appellate courts around the nation. Many made this observation when the United States Supreme Court reversed the Utah Supreme Court in a surprisingly unanimous 9-0 decision in Brigham City v. Stuart. Remember that the federal constitution is a floor, establishing minimum rights, and the state constitution (and how it is interpreted by Utah’s courts) may grant expanded rights. The courts of Vermont recently added two more areas of significant disagreement with the United States Supreme Court to the long list of state constitutional rights applied to Vermont criminal suspects.
In State v. Peterson , --- A.2d ----, 2007 WL 1029631 (Vt. 2007), the Vermont Supreme Court ruled that the suppression of the tangible fruits of a Miranda violation is mandatory, disagreeing with United States v. Patane, 542 U.S. 630 (2004). In Patane, the Supreme Court held that omitting Miranda warnings to an in-custody suspect doesn’t mandate exclusion of physical evidence discovered as the result of the suspect's unwarned but voluntary statements. A handful of other states’ courts have similarly rejected Patane. State v. Farris, 849 N.E.2d 985 (Ohio 2006); Commonwealth v. Martin, 827 N.E.2d 198, (Mass. 2005); State v. Knapp, 700 N.W.2d 899 (Wis. 2005).
The Vermont Supreme Court also rejected the well-established search-incident-to-arrest rule of Belton v. New York, 453 U.S. 454 (1981), in State v. Bauder, --- A.2d ----, 2007 WL 777995 (Vt. 2007). Under Vermont law, once a suspect is arrested from a vehicle, is removed from the vehicle and secured, officers must obtain a warrant to search the vehicle incident to the arrest. Some other states’ courts also disallow vehicle searches incident to arrest unless the officer can show a safety threat or immediate need to preserve evidence. State v. Eckel, 888 A.2d 1266 (N.J. 2006); Camacho v. State, 75 P.3d 370 (Nev. 2003).
Officers in Vermont also cannot routinely require vehicle occupants to exit a vehicle during a traffic stop, in direct opposition to United States Supreme Court doctrine. State v. Sprague, 824 A.2d 539 (Vt. 2003). Thus, remember that the Utah Supreme Court is free to impose many more restrictions on police authority than it has to date. Our system of federalism is designed precisely to allow for differences in criminal procedure from state to state.
Crossing the threshold of a home without a warrant may lead to liability for deputy
In a case reminiscent of the Hatfield/McCoy feud, the Court of Appeals reminded officers that an arrest warrant –not merely an arrest based on probable cause– is required to enter a suspect’s home, absent exigent circumstances or consent. McClish shouted profanities at his neighbors, fired a rifle into the air from the property line, and was generally obnoxious. A deputy responded and spoke with McClish. McClish was not cooperative. The deputy researched the call history between the two neighbors and decided that there was probable cause to arrest McClish for aggravated stalking. Several hours after the initial contact, the deputy returned to McClish’s home and knocked on the door. McClish claimed that the deputy reached across the doorway and grabbed him when McClish opened the door.
McClish sued. The sheriff’s office and deputy sought to have the case dismissed. In ruling on the motion to dismiss, the court is required to assume the facts in the light most favorable to McClish. The court refused to dismiss the action, allowing it to proceed toward trial. Even where the suspect exposes himself to public view by voluntarily opening his door in response to police knocks, the court ruled that a warrant was required to cross the threshold of the home.
Courts around the nation disagree on the need for an arrest warrant in similar circumstances. In Payton v. New York, 455 U.S. 573 (1980), the Supreme Court ruled that officer must obtain an arrest warrant before entering a suspect's home to arrest the suspect. The court said that the Fourth Amendment draws a solid line at the threshold of the door. Prior to Payton, the Supreme Court held that a person standing in the open doorway of his or her home has voluntarily exposed himself or herself to public view and could be arrested without a warrant. United States v. Santana, 427 U.S. 38 (1976). Courts across the nation disagree whether the warrant requirement applies when an individual answers an officer’s knock by opening the door. The Court of Appeals for the Tenth Circuit (with jurisdiction over Utah) has held that the arrest warrant requirement does not apply in this situation. McKinnon v. Carr, 103 F.3d 934 (10th Cir. 1996). In this case, the Eleventh Circuit disagreed, citing Kyllo v. United States, 533 U.S. 27 (2001). In Kyllo, the Supreme Court said that Payton established a bright-line rule that "any physical invasion of the structure of the home, 'by even a fraction of an inch,' is too much." As the federal and state courts around the nation refine their disagreement, and perhaps the Supreme Court decides the open questions, officers should err on the side of caution and be cautious about crossing the threshold of a home without an arrest warrant for the resident (or a search warrant). Generally, a warrant is the safest and most lawful alternative. McClish v. Nugent, --- F.3d ----, 2007 WL 1063337 (11th Cir. 2007).
Evidence found in technically deficient inventory is admissible
Banks was arrested in a scheme to obtain oxycodone through sham prescriptions. When he was arrested, Banks asked officers to bring his two duffle bags from his car before he was taken to jail. Banks later complained that the inventory of two duffle bags (containing incriminating evidence) was inconsistent with department policy in six ways. Firsts, the policy required the initial search of Banks to be conducted by “the officer in custody of” him, who was the arresting officer, not the detective who actually did the inventory. Second, booking personnel, not the detective, should have performed the inventory. Third, all items found in the bag, not just the contraband, should have been inventoried. Fourth, the inventory should have been recorded on the proper inventory form, not on an investigative report. Fifth, booking personnel, not the detective, should have secured the property. Sixth, the property should have been securely stored, not placed under the detective’s desk. The court found that there were technical deficiencies in how the inventory was completed. However, there was no specific provision in the policy to cover situations where an arrestee asked for property to be retrieved from a car parked away from the arrest site and brought with the arrestee to the jail. Moreover, the detective substantially complied with the policy and had no “investigative motive” in conducting the inventory.
Officers may perform a warrantless inventory of an impounded item, such as a vehicle, luggage, or other property, as part of the police community caretaking function. The inventory must follow a policy and not be shaped by the officers’ discretion. South Dakota v. Opperman, 428 U.S. 364 (1976). An inventory cannot be "a ruse for general rummaging in order to discover incriminating evidence." Florida v. Wells, 495 U.S. 1 (1990). Because the inventory here generally met the agency’s written criteria and was performed as an administrative step in the arrest and not an investigatory step, the evidence found in the inventory was admissible. Officers must know their respective agencies’ inventory policies and comply with the policies to the very best of their abilities in order to make any inadvertently discovered evidence admissible in court. United States v. Banks, --- F.3d ----, 2007 WL 1097954 (4th Cir. 2007).
Search incident to arrest precedes the arrest and is upheld
The Court of Appeals for the District of Columbia has reconsidered and reversed its decision in a case discussed here late in 2006. The Court heard the case en banc, meaning that all the judges of the court voted on the case. Officers came upon Powell as he was urinating in a deserted industrial zone street. One of the officers looked inside the car next to Powell and saw another man, open containers of alcohol, and a backpack on the back seat. Opening the backpack, the officer found a loaded machine pistol. Powell was arrested for urinating in public, open container of alcohol, and possession of the gun. The appellate court initially struck down the gun charge, ruling that the search incident to arrest doctrine could not apply because the search occurred a few seconds before custody and arrest. The most recent decision upheld the gun arrest. The court reasoned that the justifications for the search incident to arrest doctrine (prevention of destruction of evidence and officer safety) may apply even more powerfully in the few moments just before the arrest.
The U.S. Supreme Court has held that the rule established in Belton v. Ross, 453 U.S. 454 (1981), which allows a search of the entire passenger compartment when a vehicle occupant is arrested, extends to persons arrested shortly after exiting a vehicle. Thornton v. United States, 541 U.S. 615 (2004). Most courts have held that a search incident to arrest is valid even if it precedes a formal arrest, as long as the officer already found probable cause to arrest. United States v. Smith, 389 F.3d 944 (9th Cir. 2004); United States v. Lugo, 170 F.3d 996 (10th Cir. 1999). In Powell’s case, the court found that Powell was not in custody until the officers placed handcuffs on him. Previous rulings by the same court had allowed searches incident to arrest to precede the formal arrest, but only where a reasonable person would have believed that he or she was not free to leave. That was also the case in Rawlings v. Kentucky, 448 U.S. 98 (1980), where the Supreme Court approved a search incident to arrest that preceded formal arrest. United States v. Powell, --- F.3d ----, 2007 WL 1119641 (D.C. Cir. 2007) (en banc). This case illustrates that officers should carefully consider whether there is sufficient probably cause for an arrest. The officers’ report should state when that point was reached, and the reasons that the officers believed that there was probable cause to arrest. A similar result was recently reached by the Utah Court of Appeals in State v. Hogue, --- P.3d ----, 2007 WL 765425 (Utah App. 2007).
Smart detective obtains admissible confession by following the rules of interrogation
Doran befriended a woman and her 13 year-old daughter. Doran showed a pornographic movie to the minor child and performed sex acts on her when left alone with her. The victim later told Doran’s girlfriend, who then called police. Some time later, officers looking for Doran spoke with his girlfriend. Though she was no longer living with him, she said that she would try to find him and have him contact the officers. She later called a detective and told him that Doran would come to the police station. The detective asked the girlfriend to tell Doran that if he came in willingly, the detective would “just get his side of the story, then let him go.”
Doran appeared and was ushered into an interview room, though not through any locked doors. The detective was wearing a badge, but no weapon was visible. The detective told Doran that “he was free to leave at any time and that no matter what happened or what was said, that Doran would leave the building.” During a 45 minute interview, the detective told Doran about the accusations and Doran admitted to sex with the 13 year-old, but claimed that she seduced him. As promised, the detective allowed Doran to leave. The next day, Doran returned to the police department. The detective intended to administer a voice stress analyzer test. However, the detective decided that he should arrest Doran and not allow him to leave. Once arrested, Doran asked for an attorney and there was no further questioning.
Doran asked the court to suppress his confession, claiming that he was in custody for Miranda purposes and that no warning had been given and no waiver obtained. Doran claimed that he did not feel free to leave and believed he would be allowed to leave only if he told the police what they wanted to hear. The trial court and the appellate court ruled that his confession was admissible because he was not in custody.
Custody is determined by the totality of the circumstances. “The circumstances need to be viewed as a whole in determining whether the defendant's freedom of action is restricted to a ‘degree associated with formal arrest.’” Factors weighing in favor of finding that Doran was in custody included the site of the interrogation (police station) and the focus on Doran as the sole suspect. However, there were many factors mitigating against a custody determination. Perhaps the strongest factor was the detective’s statement that Doran would be allowed to leave no matter what he said during the interview. Additionally, Doran voluntarily came to the police station on his own. There were no locked doors or armed officers who obviously barred his exit path if he had decided to leave. The interview itself was relatively brief, lasting less than 45 minutes. Though the detective may have been tempted to reverse course and arrest Doran after the interview, the patience and skill shown by the detective resulted in an admissible confession and ultimately directly lead to a conviction on serious sex charges. State v. Doran, --- P.3d ----, 2007 WL 1079909 (Utah App. 2007).
Briefly examining identification does not create a level 2 detention
An officer spotted Adams in front of a closed business at 2200 hours. The officer approached Adams and briefly illuminated him with a flashlight. He asked Adams what he was doing. Adams explained that he lived above the business and was not allowed to smoke in the apartment. He came outside to smoke a cigarette. The officer asked Adams why he had a backpack and large soft drink container if he had just come out for a smoke. Adams then changed his story slightly and said that he was coming from a friend’s house and was smoking before he went to his apartment. The officer asked Adams for identification. The officer ran a warrants check using his portable radio. The officer briefly held the identification, returning it as soon as the warrants check was completed (only 30-60 seconds after asking for identification).
The officer continued to question Adams, asking first if the backpack contained anything illegal or stolen. When Adams said that it did not, the officer asked for consent to search the backpack. Adams consented. The officer found no stolen property or contraband, but did see a bottle of eye drops. Drug users often use eye drops to reduce the redness in their eyes. The officer asked Adams whether he had any illegal drugs on his person. Adams said that he did not. The officer asked for consent to search Adams and Adams consented. The officer found a marijuana pipe in Adams’ pocket. Adams then gave the officer two other bags of marijuana.
Adams claimed that the request for identification and the warrants check created a level two detention, which would normally require reasonable suspicion of criminal activity. The state countered that this was a level one voluntary encounter. Under Utah law, there are three permissible levels of police stops: “(1) An officer may approach a citizen at any time and pose questions so long as the citizen is not detained against his will; (2) an officer may seize a person if the officer has an articulable suspicion that the person has committed or is about to commit a crime ...; [and] (3) an officer may arrest a suspect if the officer has probable cause to believe an offense had been committed or is being committed.” State v. Markland, 112 P.3d 507 (Utah 2005).
The Court of Appeals agreed that the encounter was voluntary, and not a detention requiring reasonable suspicion. The court considered two critical factors. First was the relatively brief (30-60 second) retention of the identification and that the officer immediately returned the identification before continuing to question Adams. Second, the court compared this case to a prior Utah court decision where an officer held onto identification for 5 minutes, and stepped away from the suspect while running the warrants check. Not only the increased time, but the physical separation between the officer (while holding the identification) and the suspect supported a finding of detention. This decision fits well with established federal law governing consensual encounters where there is a very brief taking of identification or brief questioning about identification. The Court of Appeals cited United States v. Analla, 975 F.2d 119 (4th Cir.1992), in which the investigating officer did not take the license over to the squad car to run the warrants check. “Instead, the officer ‘stood beside the car, near where the suspect was standing, and used his walkie-talkie’ to contact the dispatcher. This circumstance, among others, resulted in the determination that the consensual encounter did not escalate into a level two seizure. Thus, in this case, the officer's momentary use of Adams's identification for a warrants check does not compel the conclusion that a level two seizure occurred, especially because the officer did not hold onto the identification any longer than was necessary.” Those who have been persuaded that there is some magical bubble surrounding vehicle passengers and pedestrians that prevents asking for identification may have found the pin with which to burst the bubble. State v. Adams, --- P.3d ----, 2007 WL 1079908 (Utah App. 2007).
Sniff evidence may support forfeiture of cash
Police searched an apartment rented to Carlisle, a known drug dealer, by Jacobsen. When officers found a safe, they asked for a drug detector dog sniff. Police Service Dog Nikki sniffed the safe and gave a final response, indicating the odor of controlled substances emanating from the safe. Officers found $55,600 inside the safe. Several months later, Jacobsen claimed that the money was his. The trial court ruled against Jacobsen. However, the Minnesota Supreme Court reversed and ordered a new trial. Several facts showed that the money may well have been Jacobsen’s. Moreover, the court noted that there had not been testimony about the dissipation of odor on cash stored inside a safe.
Though Jacobsen may ultimately win the cash, the significant elements of this case are that currency proofing was shown to be a valuable tool in establishing reliability, and the appellate court acknowledged that a sniff may well support the forfeiture of cash tainted with drug odor. The court cited many recent courts cases, as well as the excellent work of Dr. Charles Mesloh (a former police officer and dog handler), that has debunked the junk science of the general contamination theory. Some poorly executed studies have claimed that all currency in the United States is heavily contaminated with the residue and/or odor of illegal drugs. Jacobson v. $55,900 in U.S. Currency, --- N.W.2d ----, 2007 WL 764702 (Minn. 2007).
Anonymous tip of a gun supports detention and frisk
An anonymous caller reported that a teenage male, Costa, had a gun in his waistband at a ball game. Responding officers frisked the youth and found a cocked, loaded gun and several packets of cocaine. A quick read of that limited information might suggest suppression under the decision of Florida v. J. L., 529 U.S. 266 (2000), where the Supreme Court held unconstitutional a stop and frisk that was based on an anonymous tip about a teen with a gun at a bus stop. However, the Massachusetts Supreme Court upheld the detention and frisk in this case. The court commented that reliability was the key issue in Florida v. J.L. and there were sufficient reliability factors in this case. Though the caller was anonymous, she stated that she was close enough to Costa that she thought he might identify her as the caller when police arrived. She knew that the conversation was being recorded, and knew her phone number would appear on the dispatch caller identification screen. When the caller placed her anonymity at risk by calling from a close proximity to Costa, her reliability was enhanced. Unlike the Florida case, the caller also said that she had personally seen the gun. Commonwealth v. Reed, 862 N.E.2d 371 (Mass. 2007).
Tossed cigarette butt couldn't be lawfully seized
Officers suspected Reed of burglary and sexual assault. They went to his home to interview him and to ask for a consensual DNA sample. Reed denied the DNA sample request. As they spoke with him on the back patio, Reed smoked a cigarette. Stating that he learned by watching CSI, Reed carefully shredded the cigarette filter and put the remains into his pocket. The officers continued to speak to Reed. He smoked another cigarette. However, his attention span being seriously deficient (probably from watching too much television), Reed tossed the butt in the direction of a trash pile on the porch. One of the officers nudged the still-burning butt onto the grass and later retrieved it. A DNA sample taken from the butt helped convict Reed.
Reed claimed the seizure was unlawful because the cigarette butt was still on the cartilage of his property and he had not shown an intent to abandon the butt. The court agreed, stating that by definition one could not abandon property on the cartilage of a home. The court made far too general a statement, claiming "one simply cannot abandon property within the curtilage of one's own home." Even so, many courts have ruled that a person retains an expectation of privacy in trash in outside cans until they are set out for collection. Following that reasoning, Reed had not placed the butt in a place where he could be said to have “abandoned” it. Rather than placing it in a receptacle for collection, he merely added it to his collection of detritus ornamenting his lawn. The court ordered a new trial without the cigarette butt evidence. State v. Reed, 641 S.E.2d 320 (N.C. App. 2007).
Single furtive movement doesn't justify frisk
Officers stopped Johnson for a registration violation and turn signal violation. The registration was suspended for an emissions problem. As Johnson was stopping, he made a single deep bend over toward the floorboard. Johnson showed officers proof that the emissions violation had been corrected. An officer peered under the seat, based on the single furtive movement, and found a bag of marijuana. The court ruled that a single possibly furtive gesture could be explained by many other actions, such as reaching for a wallet, picking up a food wrapper, or turning off the radio. Acknowledging that sometimes a single movement might justify a frisk, the court stated that in this case, where the only violation was a minor traffic breach, there was not a basis for a vehicle frisk. State v. Johnson, --- N.W.2d ----, 2007 WL 840486 (Wis. 2007).
Search revealing meth proper, though occurring before custodial arrest
A deputy investigating a burglary saw Hogue driving his truck. Earlier that day, the burglary victim told the deputy that the suspect was with Hogue. As the deputy approached the truck, he was that Hogue was alone. However, Hogue showed an unusually high degree of nervousness, jerky movements, and dilated pupils. The deputy decided to administer field sobriety tests. While questioning Hogue about the burglary suspect, the deputy noted other impairment clues, including the blurting out of answers to questions, the loss of color in Hogue's face, and body tremors. The deputy asked Hogue about an obvious bulge in his pocket, which Hogue seemed to be trying to hide with his arm. Hogue twice denied having anything in his pockets before emptying most of the contents. When deputy again asked Hogue to remove whatever remained in his pocket, Hogue pulled out some methamphetamine. Hogue failed the FSTs and was arrested for DUI. The entire encounter lasted fifteen to twenty minutes.
Hogue claimed that the deputy exceeded the purpose of the stop (to ask about the burglary suspect) and improperly administered FSTs. The court quickly disagreed, noting the detailed signs of impairment observed and reported by the deputy. This was a case where detailed facts documented in a good police report made a significant difference. Hogue next claimed that the pre-arrest search, consisting of pulling the bulging item out of his pocket, was unreasonable. The court ruled that the detailed observations of the officer clearly provided a basis for a custodial arrest for DUI. The court did not need to rule on the issue of the search because a search incident to arrest would have turned up the methamphetamine. State v. Hogue, --- P.3d ----, 2007 WL 765425 (Utah App. 2007).
Unrelated questioning at traffic stop permitted under Muehler v. Mena
Relying on Muehler v. Mena, 544 U.S. 93 (2005), the Ninth Circuit abruptly reversed course to hold that the Fourth Amendment does not require officers conducting a traffic stop to have independent reasonable suspicion to ask questions that are unrelated to the purpose of the stop. The court revisited a 2006 opinion (see Street Legal Archives) that held otherwise. Mendez was pulled over by officers for failure to display a visible license plate or registration tag. He was asked to exit the car, patted down for weapons and told to sit on the curb behind the vehicle while a records check was conducted. In response to questioning about matters unrelated to the purpose of the traffic stop, Mendez told the officers that he was a felon and that there was a gun in the vehicle, at which point they arrested him, searched the car and found the gun. The court ruled: “mere police questioning does not constitute a seizure unless it prolongs the detention of the individual, and, thus, no reasonable suspicion is required to justify questioning that does not prolong the stop.”
Many courts –including the Tenth Circuit in United States v. Stewart, --- F.3d ----, 2007 WL 127374 (10th Cir. 2007) (see Street Legal below)– now recognize the influence of Muehler v. Mena and allow questioning wholly unrelated to the purpose of the stop. United States v. Mendez, 476 F.3d 1077 (9th Cir. 2007).
ICE Agents score major child pornography victory
German officers investigating child pornography reported that a German suspect sent a number of emails containing illegal child pornography images to Kelley. Based on that information Special Agents of Immigration and Customs Enforcement obtained a warrant to seize and search Kelley’s computer. They found a number of illegal images. Kelley claimed that the search was improper because ICE agents did not show that he solicited the illegal images. The courts disagreed, ruling that the number of e-mails, the similarity of their content, and other factors made it reasonable to infer that Kelley had solicited them and the receipt was “no accident.” The court cited its own precedent in United States v. Gourde, 440 F.3d 1065 (9th Cir. 2006) (see Street Legal Archives), that probable cause that a suspect possesses child pornography can be based purely on inferences rather than direct evidence. The ICE agent noted in the affidavit for the search warrant that: “his experience and training have led him to conclude that those who collect child pornography often collect e-mail addresses of persons with similar interests as a means of referral, exchange, and profit.” The court relied on this statement to find the “reasonable inference from receipt of e-mails in care of different screen names that pertain to a discrete type of pornography--young boys in sexually explicit poses--and that also ended up on the computers of two unrelated people who were also receiving or distributing the same type of material, is that Kelley was part of network of persons interested in child pornography primarily involving young boys. As a matter of practical, common sense, this is unlikely to occur without prior communication or connection. From these circumstances it is reasonable to infer a "fair probability" that attachments depicting child pornography were addressed to Kelley's screen names because he wanted them to be.” United States v. Kelley, --- F.3d ----, 2007 WL 610974 (9th Cir. 2007).
NCMEC tips of child pornography entitled to presumption of reliability
Woldridge was downloading child pornography through his AOL account. Under federal law, AOL was obligated to report Woldridge to National Center for Missing and Exploited Children (NCMEC). NCMEC then turns the information over to one of the nation’s Internet Crimes Against Children Task Forces for investigation. A deputy experienced in child pornography investigation received the NCMEC tip, investigated, and obtained a warrant to search Woldridge’s computer. The deputy found illegal child pornography on the computer. Woldridge challenged the search on the basis of the veracity of the informant. The court ruled against him, stating that an ISP provider’s tip relayed through NCMEC is entitled to the same presumption of reliability given to tips from citizen informers. The name of the ISP employee does not need to be provided. State v. Woldridge, --- So.2d ----, 2007 WL 548805 (Fla.App. 2007).
No good faith exception for faulty federal wiretap warrants
FBI agents monitoring a legal wiretap learned that Rice was likely to imminently receive a large quantity of cocaine. The FBI applied for a wiretap on Rice’s phone, which was granted. Following Rice’s arrest, he asked that the wiretap evidence be suppressed because agents did not meet the exhaustion requirements of Title III. The trial court agreed, stating that the agents listed a number of challenges to drug investigations generally, but did not go the extra mile and state why traditional methods of investigation were too dangerous or likely to fail in Rice’s case. The FBI appealed, asking the court of appeals to impose a good faith exception to the invalid wiretap warrant. The Sixth Circuit Court of Appeals refused, holding that the exclusionary remedy provided by Title III, unlike the judicially crafted exclusionary rule for constitutional violations, is a legislative creation that the courts cannot abrogate. The Sixth Circuit is in conflict with other courts on this issue. United States v. Moore, 41 F.3d 370 (8th Cir. 1994); United States v. Malekzadeh, 855 F.2d 1492 (11th Cir. 1988). However, the court noted that these decisions were “faulty.” This is the type of legal conflict that often ends up at the Supreme Court. United States v. Rice, --- F.3d ----, 2007 WL 623523 (6th Cir. 2007).
Search incident to arrest proper even though suspect was handcuffed and not near duffle bag of marijuana
A officer noticed suspicious activity at a motel room and decided to conduct a knock-and-talk. Warren opened the door and the officer could smell marijuana burning and could see a small bag of marijuana. He arrested Warren in the doorway and did a quick security sweep of the room. The officer opened a duffle bag laying approximately six feet from Warren and found two large packages of marijuana wrapped in mustard and plastic. Warren claimed that the search of the duffle bag was not a legitimate search incident to arrest because he was already handcuffed and could not reach the bag. The lower court agreed with him, but the Louisiana Supreme Court reversed.
Since the U.S. Supreme Court set out the search-incident-to-arrest (SIA) doctrine in Chimel v. California, 395 U.S. 752 (1969), a number of clarifications followed. In Chimel, the Court said that a search could be conducted of "the area into which [the] arrestee might reach in order to grab a weapon or evidentiary items." In Belton v. New York, 453 U.S. 454 (1981), the Court gave a bright line rule that the entire passenger compartment of a car could be searched incident to the arrest of one of the car’s occupants. In Thornton v. United States, 541 U.S. 615 (2004), the Court clarified that the rule applied to a search when a person has been a very recent occupant of the car. Many courts apply the SIA doctrine even though the suspect has been handcuffed and may not actually be able to grab a weapon or destroy evidence. United States v. Queen, 847 F.2d 346 (7th Cir. 1988); United States v. Nohara, 3 F.3d 1239 (9th Cir. 1993). Others disagree. State v. Lamay, 103 P.3d 448 (Idaho 2004). Though the SIA doctrine applies to custodial arrests only, Knowles v. Iowa, 525 U.S. 113 (1998), some courts have allowed a search incident to arrest where the suspect is later released on a citation or pending a summons. United States v. Williams, 170 Fed.Appx. 399 (6th Cir. 2006). State v. Warren, --- So.2d ----, 2007 WL 530029 (La. 2007).
Burning marijuana not sufficient exigency for warrantless entry to residence
Duran was in a trailer located on property belonging to Horvath’s mother. Horvath’s brother and mother called police to report that people were smoking marijuana inside the trailer. Officers arrived forty minutes later. The brother said that he saw people in the trailer smoking marijuana and warned that Horvath (not in the trailer) kept guns in his trailer and had threatened to use them against the police. As officers approached the trailer, they could smell the faint odor of marijuana. Officers entered the trailer without a warrant and found Duran and two other individuals, guns, and illegal drugs. The Court of Appeals ruled that there were not exigent circumstances to support a warrantless entry (see Street Legal Archives). Price City appealed to the Supreme Court. The Supreme Court also ruled in favor of Duran. The court noted that the officers had not considered a warrant or discussed whether they could obtain a warrant before the evidence was consumed. The Court assumed (without any supporting facts) that Duran and the others were not aware that the officers had been called and were investigating. Operating on that assumption, the Court believed that there was ample time to obtain a warrant. This case suggests that officers should document reasons that obtaining a warrant is impractical, and teaches that the mere smoking of marijuana inside a home, where occupants hold a strong expectation of privacy, does not provide sufficient exigency for a warrantless entry. State v. Duran, --- P.3d ----, 2007 WL 703195 (Utah 2007).
No custodial interrogation found during 90 minute traffic encounter
A deputy pulled in behind Levin’s open-top convertible, parked on a dike, without activating emergency lights or siren. The deputy walked up to the car and saw open containers of alcohol in violation of Utah liquor laws. The deputy asked Levin and the two passengers to get out of the car so that he could search for more alcohol. In the center console, the deputy found some marijuana in a socket. He found more marijuana in a backpack claimed by one of the passengers. Levin denied smoking any marijuana. The deputy called for a drug recognition expert. The DRE later concluded that Levin appeared to be under the influence of marijuana. The deputy pulled Levin aside and said that there was no doubt that he had been smoking marijuana. Levin then admitted that he had. Levin was never arrested, but received a citation at the end of the ninety-minute encounter. Levin was convicted of open container of alcohol in a vehicle, possession of marijuana and possession of paraphernalia. He appealed, claiming that he was under custodial interrogation without the benefit of a Miranda warning at the time that he admitted smoking marijuana.
The Court of Appeals found that Levin was not subjected to custodial interrogation. Utah courts follow four factors to determine whether a suspect who has not been formally arrested is in custody. They are: (1) the site of interrogation; (2) whether the investigation focused on the accused; (3) whether the objective indicia of arrest were present; and (4) the length and form of interrogation. Here there were no guns displayed, handcuffs ready, siren, lights, or other indicia of arrest. The encounter was on a public road, and the initial contact was to investigate an expired license plate. Even though the road was rural, Levin and his passengers were allowed to leave with a citation. Utah courts suggest that an interrogation conducted on a rural road, with less traffic, may suggest custody more easily than a heavily-traveled urban road. Though the stop lasted for well over an hour, the court found that the time was reasonable in light of the need to call for a DRE, and the difficulty experienced by a disabled passenger in getting out of Levin’s car. Finally, the questioning did not focus on Levin until after the DRE exam. Moreover, accusatory questioning alone does not mandate a finding of custody. State v. Levin, ___ P.3d ___, 2007 WL 610405 (Utah App. 2007).
Plain view leads to warrant to search stupid burglar's garage
A detective investigating a burglary where a furnace and other items were taken from a plumbing supply business. The detective noticed tire tracks leading directly from the business to Buzzard’s garage. The detective peered through a narrow crack between the doors of the garage and saw a furnace. He called the plumbing business owner to look through the crack. The owner identified the furnace as stolen. The detective obtained a search warrant and recovered stolen property. Buzzard complained that the warrant was based on evidence seen in an improper search. He claimed that he preserved his expectation of privacy in the garage by closing and locking the doors. The court disagreed. Even though Buzzard thought that he was locking out prying eyes, he was wholly incompetent as a burglar, leaving tracks right up to the door, and incompetent in hiding the property behind doors with a gap in the middle. Because the officer did not intrude on an expectation of privacy, the plain view doctrine applied. The warrant was based on information gathered in a legitimate plain view observation. State v. Buzzard, 860 N.E.2d 1006 (Ohio 2007).
Illegal arrest does not automatically equal excessive force
Villegas took her two-year old child to the emergency room due to vaginal irritation. The child stated that the babysitter’s (Tina Cortez) husband (Rick Cortez) “touched her pee-pee.” A nurse reported the statement to police. Before interviewing Villegas or the child, officers went to Cortez’s home, handcuffed Rick, placed him in a patrol car, and questioned him. Tina came to the door in time to see Rick handcuffed. When Tina turned to go back into the bedroom and make a phone call, an officer entered, seized her by the arm and handcuffed her. Officers searched the house without a warrant, stating that they were looking for other children. Rick complained that his handcuffs were too tight. No charges were ever filed against Rick for the alleged abuse.
Cortez sued for excessive force and unlawful detention. Initially, the Court of Appeals ruled that any force used to effect an unlawful arrest is per se excessive force. The entire Court of Appeals reheard the case en banc and reversed the panel decision. A civil rights plaintiff suing police for unlawful detention or arrest must independently show that the force was excessive. If the force is objectively reasonable, the officer cannot be liable for excessive force, even if the arrest or detention is later found to be improper. Cortez v. McCauley, --- F.3d ----, 2007 WL 503819 (10th Cir. 2007) (en banc).
Hash values alone support warrant for child pornography
Officers of the Spanish Guardia determined that a computer in North Dakota was transmitting child pornography to a computer in Spain. The Spanish officers monitored a peer-to-peer transmission, relying on hash values to identify the transmitted images as child pornography. The Spanish officers did not open the images to visually confirm that they appeared to be child pornography. Based on that information, FBI and BIA agents traced the sending IP address and obtained a search warrant for Cartier’s computer in North Dakota. Cartier challenged the warrant, claiming that the hash values are not sufficiently unique as to provide probable cause that the images were unlawful, and claiming that the search was overbroad because the warrant did not specify the search methodology.
The court quickly dismissed the notion that a search warrant must prescribe the method of searching. A warrant does not have to contain the search methodology to be used, only the place to be searched and the items to be seized. United States v. Brooks, 427 F.3d 1246 (10th Cir. 2005) (“This court has never required warrants to contain a particularized computer search strategy”). The court found that hash values are sufficiently unique to create probable cause that the file with which the hash value is associated is an illegal image. Some computer experts have described the hash value as an image’s DNA. This court used the analogy of an image’s fingerprint. The prosecution computer expert testified that hash values were a reliable means of investigating child pornography because in practical application, a file's hash value is unique to that file. He testified that if this premise were not true, P2P networks would not work because the searcher could not reliably search for a known file, which is what P2P networks are designed to do. He also testified that as long as the investigator starts with an image with known content and a known hash value, an investigator can use the hash value to search for duplicates of that file. He also testified that had two hash values ever collided in “real-world” application, the event would be well publicized because it would be significant in their field. United States v. Cartier, 2007 WL 319648 (D.N.D. 2007).
Anonymous tip of brandishing a gun justified detention and search
An anonymous caller reported that a light-skinned African-American male had “just pulled a gun” on him and had mentioned a gang name. The caller said he felt the perpetrator “was gonna shoot me right there at that minute.” The caller described the suspect as having a bandage over his left hand, as though it had been broken, and said that he was in the driver's seat of a gray Nissan Maxima parked on the north side of Jefferson Boulevard at Ninth Avenue, near the recycling center. The caller refused to give his name, saying that he was in fear. A few minutes later, the caller made a second call and identified himself as “Drew.” He said that he had seen the Nissan again and wanted to correct his description of the vehicle. It was black, not gray.
Officers arriving at the scene spotted a black Nissan Maxima in the precise location described by the caller. There were three people in the car. Dolly was sitting in the driver's seat and had cast on his left arm. Officers detained the occupants and found a gun under the front seat. Dolly challenged the detention asserting a lack of reasonable suspicion. He cited Florida v. J.L., 529 U.S. 266 (2000). In that case, the U.S. Supreme Court declined to adopt a “gun exception” to the reasonable suspicion requirement. When an anonymous caller reported that a juvenile was standing at a bus stop and had a concealed weapon, officers stopped and frisked the juvenile, finding the illegal weapon. The Court overturned the conviction, stating: "An accurate description of a subject's readily observable location and appearance does not show that the tipster has knowledge of concealed criminal activity." In order to justify a detention and frisk, there must be reasonable suspicion based on a tip that is "reliable in its assertion of illegality, not just in its tendency to identify a determinate person."
The California Supreme Court overturned a lower appellate court to hold that Dolly’s detention was lawful, based on the specificity of the information provided by the anonymous caller. The caller’s report that the suspect had pointed the gun at him created a greater danger than a report that a juvenile was carrying a weapon illegally. There was a “grave and immediate risk” to the tipster and to others in the area. The court noted that callers are generally aware that 911 calls are recorded and are thus deterred from making false reports. The caller’s fear that retaliation would follow if he gave his name, coupled with his mention of a gang name, gave a reasonable explanation for his desire to remain anonymous. People v. Dolly, 150 P.3d 693 (Cal. 2007).
No expectation of privacy between screen door and main door of a home
A deputy responded to a call of a threatening man with a gun and a disturbance. The deputy knocked on the screen door with no response. The deputy then opened the screen door, knocked on the main door and called out. The suspect yelled back that he was in the house and said “I got a *&%^# gun.” A number of officers entered the house and took the suspect into custody. Believing that another person was in the house (the original call was for a fight), the deputies did a quick protective sweep. They did not find anyone else, but did see guns in plain sight that were used to convict Walker of being a felon in possession of a firearm. Walker asserted that the entry was illegal because the deputy opened the screen door to knock.
Walker relied on a case from 2006 in which the Ninth Circuit Court of Appeals ruled that there is an expectation of privacy between the screen door and main door when the main door is open. In such cases, the screen door is the barrier between public spaces and private interior spaces. If the main door is closed, there is not an expectation of privacy. In this case, the Tenth Circuit Court disagreed. The court noted that any visitor would be likely to open the screen door to knock on the solid main door. Thus, there is no reasonable expectation of privacy in the space between the doors. Once the deputy called out and Walker said that he had a gun, it was reasonable for officers to immediately enter and disarm Walker. United States v. Walker, 474 F.3d 1249 (10th Cir. 2007).
Jury may determine whether child pornography images are real or morphed
Rodriguez-Pacheco plead guilty to one count of possession of child pornography. The indictment charged that he possessed more than 10 images of child pornography, thus triggering a sentencing enhancement. A pediatrician testified that the sample of 10 of the 234 images seized from the defendant’s computer showed children. An expert from the FBI testified that 9 of those images showed real children, not merely computer-morphed images. Apparently the prosecutor failed to ask the expert about the tenth image. The judge (Rodriguez-Pacheco had waived the right to have a jury look at the images and determine the facts necessary for the sentencing enhancement) decided that the tenth image also showed a real child. The First Circuit Court had previously ruled that expert testimony was required to determine whether an image was an actual child or a computer-generated image. The court now reverses its position and joins the majority of other appellate courts. The court ruled that there is no reason to assume that images of children engaged in sexually explicit activity depict virtual children, and that juries are capable of finding that fact without the assistance of experts. Thus, in future cases, the jury or the judge may determine whether the child pornography shows real children or computer images. United States v. Rodriguez-Pacheco, --- F.3d ----, 2007 WL 316444 (1st Cir. 2007).
Juvenile could not refuse search at courthouse security and leave without a search
Roland R., a juvenile approached a courthouse security station. Signs informed court visitors that persons and bags were subject to search. He placed his backpack on a table as he walked through the metal detector. When the officer told him that his backpack would be searched, Roland said that he did not want to submit to a search. He grabbed the backpack and left. Another officer called for Roland to stop. Roland ran and was caught after a short pursuit. His backpack held 19 bags of marijuana. Following the lead of courts considering airport screenings, the court ruled that the bag search was a valid administrative search and that Roland did not have the right to withdraw consent once he entered the screening area. The Ninth Circuit Court of Appeals recently ruled that an airline passenger entering a security zone could not leave and thereby withdraw consent to search. United States v. Aukai, 440 F.3d 1168 (9th Cir. 2006). However, that court has also agreed to reconsider its decision. The Massachusetts court also noted that by running from the courthouse, Roland created reasonable suspicion for a detention. Combined with his refusal to allow a search of his bag, the officers were justified in examining the bag for weapons. Commonwealth v. Roland R., 860 N.E.2d 659 (Mass. 2007).
GPS recording device could be installed under a car without a search warrant
Officers suspected Garcia, who had served time for drug sales, was manufacturing and dealing methamphetamine. Officers learned that Garcia was driving a borrowed car. When the officers saw the car parked on a public street, they surreptitiously placed a GPS recording device on the car. They later retrieved the device (without committing a trespass) and determined where the car had been driven. Noting that the car had visited a large tract of land, the officers went to the location and obtained consent to search from the owner. They found a meth lab and seized evidence used to convict Garcia.
Garcia claimed that the car was “seized.” The court quickly disagreed, noting that the GPS recorder did not interfere with the car operation. Garcia also claimed that the device constituted a search. Though the court disagreed, this was a closer question. Garcia argued that the GPX device was similar to the thermal imaging disapproved by the Supreme Court in Kyllo v. United States, 533 U.S. 27 (2001). However, the technology employed in Kyllo allowed officers to “see” inside the home when they had no right to enter and visually inspect the home. The GPS device was effectively a substitute for physical surveillance. Officers could have carefully followed Garcia and lawfully obtained the same information. In that respect, the GPS device is like the bumper beepers that we have used for years. The court also compared the GPS device to traffic cameras that could be used to watch Garcia drive down the road.
The Supreme Court ruled that the tracking of a vehicle on public streets by means of a bumper beeper is not a search in United States v. Knotts, 460 U.S. 276 (1983). The Court did not rule on whether installing the beeper in the vehicle converted the subsequent tracking into a search. Some lower courts have ruled that placing the device is a search, requiring a warrant or at least probable cause (but no warrant). Other courts have held that the installation is not a search, requiring neither probable cause nor a warrant. Some courts have taken a middle ground and required reasonable suspicion to install the device.
In allowing the installation without a warrant and without probable cause, the court noted: "The amendment cannot sensibly be read to mean that police shall be no more efficient in the twenty-first century than they were in the eighteenth. There is a trade-off between security and privacy, and often it favors security." United States v. Garcia, --- F.3d ----, 2007 WL 286534 (7th Cir. 2007).
Warrantless search of parolee's residence allowed under Sampson v. California
Officers had a warrant for Lopez for absconding from parole. Lopez and his brother were spotted in a home in Ontario, California. As officers surrounded the home, one officer saw Lopez peek out. Officers knocked and no one answered. As officers were forcing entry, Lopez opened the door. Officers entered and conducted a protective sweep. Lopez was arrested inside the home. During the subsequent parole search, officers found plastic baggies containing methamphetamine and three handguns. Lopez claimed that the search was not justified by his parole terms. Recently in Samson v. California, --- U.S. ---- (2006), the Supreme Court upheld a California statute permitting suspicionless searches of parolees and property under their control, including their residence, by officers at any time (a similar statute is presently under consideration by the Utah legislature and many other states’ legislatures). Though Sampson addressed the search of a parolee detained on a public street, it was no surprise that the Court of Appeals extended the reasoning of the case to the sweep and parole search of Lopez’s residence. United States v. Lopez, --- F.3d ----, 2007 WL 315342 (9th Cir. 2007).
Expectation of privacy in workplace computer
The question of whether an employee retains an expectation of privacy in a workplace computer remains in flux. The rule applicable in Utah (under federal law) remains that there is no expectation of privacy when the employer gives notice that the company’s IT staff may search the computer or monitor internet traffic. United States v. Angevine, 281 F.3d 1130 (10th Cir. 2002). Other courts have similarly ruled. Biby v. Bd. of Regents, 419 F.3d 845 (8th Cir. 2005) (no reasonable expectation of privacy existed where a policy reserved the employer's right to search an employee's computer for a legitimate reason); Muick v. Glenayre Electronics, 280 F.3d 741 (7th Cir. 2002) (employer’s policy that it could inspect the laptops that it furnished for its employees destroyed any reasonable expectation of privacy). One court recently disagreed, ruling that despite a log on message stating that usage was monitored, an employee held an expectation of privacy in email message. United States v. Long, 64 M.J. 57 (Ct. App .A.F. 2006). The Ninth Circuit recently modified its ruling in a case where it had agreed. The court held that an employee may have an expectation of privacy in a workplace computer under certain circumstances, even where the company has an internet use monitoring policy.
Officers received a tip that Ziegler had child pornography on his workplace computer. The officer asked the IT technician at Ziegler’s work place to make a copy of Ziegler’s hard drive. The IT technician notified the CEO of the officer’s request. The CEO gave consent to make the copy, and also gave the IT technician a key to Zeigler’s office, which Zeigler kept locked. In its revised ruling, the court avoided deciding whether Zeigler held an expectation of privacy in the office, assuming for argument’s sake that he did. However, the seizure of the evidence from the computer was proper under the third-party consent of the CEO. The CEO could properly consent because the company exercised control over its computer, as shown by the company's IT department full administrative access to every computer, use of firewall software to routinely monitor employees' internet activity, and notice given to employees of the company's monitoring policy. United States v. Ziegler, --- F.3d ---, 2007 WL 222167 (9th Cir. 2007).
Door knob swab -- expectation of privacy in the door knob? Warrant upheld
An officer stopped a car which had just left Nelson’s house. The occupants of the car had methamphetamine. They told the officer that Nelson sold drugs from his home. The officer watched the home for three days. He also walked up to the front of the home and swabbed the screen door handle. A test with an ion scanner showed residue of cocaine. The officer obtained a search warrant, searched, and found a bag of what appeared to be meth. The bag actually contained a pesticide that Nelson used as a decoy for those who might want to steal his meth.
Nelson challenged the search warrant and specifically challenged the door knob swab as an improper warrantless search. The court avoided the question of the knob swab by finding that there was sufficient probably cause to support the warrant, excluding the swab evidence. First, the officer conducted a traffic stop of a vehicle leaving Nelson's apartment during which both of the vehicle's occupants reported that Nelson sold methamphetamine from his apartment. Second, the affidavit described three days of surveillance of Nelson’s apartment, during which a total of seven vehicles visited Nelson for approximately fifteen minutes each. Third, the affidavit described the officer’s training and experience in narcotics cases, which led him to believe that the short and frequent visits to Nelson’s apartment were consistent with drug trafficking. Fourth, the affidavit explained that the officer ran the license plates of the vehicles that visited Nelsonn, which revealed that several of the vehicles' owners had criminal histories of “possessing and selling narcotics and possessing narcotic paraphernalia.” Finally, the affidavit stated that the officer recognized one of Nelson's visitors and followed that individual to a nearby carwash to ask him or her questions. The individual told the officer that Nelson had removed “about 1/4 of a ounce of crystalized substance from his pants pocket and showed it to him.”
Though the case did not give guidance on door knob swabs, this effective tool has been allowed by other courts and should still be part of the narcotics officer’s arsenal. The trial court ruled that the door knob swab did not intrude on a reasonable expectation of privacy and therefore was not a search under the Fourth Amendment. Assistant Attorney General Joanne Slotnik successfully argued the Nelson case. She noted that Nelson took no steps to protect the door knob from view or access by those who hang coupons on door knobs or a solicitor who might open the screen door to knock at the house. Challenging Nelson’s claim that the swab was like the thermal imaging disapproved in Kyllo v. United States, 533 U.S. 27 (2001), she compared the residue on door knob to muddy footprints leading up to the door. The muddy prints suggest that someone with mud on their shoes walked into the house, though the dirty shoes may have been cleaned or discarded at the threshold. Unlike the thermal imaging which peers inside the home, the swab does nothing to conclusively reveal whether muddy shoes (or cocaine) are present inside the home. State v. Nelson, --- P.3d ----, 2007 WL 415679 (Utah App. 2007).
Finger swab upheld
Madplume and a minor girl were smoking marijuana and drinking alcohol. At some point, Madplume and the girl argued and she told him to leave. He refused, but then fell asleep. The girl reported that Madplume had fondled her breasts and digitally penetrated her vagina. Officers swabbed Madplumes’ hands without a warrant. Tests showed the girl’s DNA on one of Madplume’s fingers. Madplume challenged the swab. An expert testified that Madplume could have easily destroyed the girl’s DNA by washing, licking or wiping his fingers, or merely perspiring. Even though Madplume was arrested on charges unrelated to the alleged sexual assault, the court ruled that the evanescent and delicate nature of the DNA evidence allowed the swab search based on the claim of sexual assault and the exigent circumstances exception to the warrant clause. State v. Madplume, --- P.3d ----, 2007 WL 152525 (Mont. 2007).
Text messages read under search incident to arrest
A CI arranged for Brown to drive to a truck stop and sell 6 grams of methamphetamine. Finley drove Brown to the meeting site. After the deal, officers stopped Finley and Brown and arrested them. The officers seized Finley’s phone and looked at the recent numbers dialed and text messages. Some of the text messages were drug related. The court ruled that Finley had an expectation of privacy in the phone, even though it belonged to Finley’s employer who allowed Finley to use it for personal calls. However, the search of the phone was proper under the search incident to arrest doctrine. The court compared the cell phone data to a closed container found on the person of an arrestee. Other prior decisions have upheld the search of a cell phone or pager incident to arrest on the grounds that the data is perishable. Such decisions extend only to the data that is erased through the ordinary passage of time. The Fifth Circuit’s reasoning is far broader. By using the search incident to arrest doctrine, the court included all of the data contained in the phone, whether perishable or not. Note that the Finley decision addressed only data stored on the device itself (call logs, text messages, stored numbers). Data stored on a remote server, such as voice mail, could not be retrieved under the search incident to arrest doctrine. It may well have been icing on the cake if the officers had obtained Finley’s consent to search the phone. United States v. Finley, --- F.3d ----, 2007 WL 196531 (5th Cir. 2007).
Dissipation of blood alcohol alone is insufficient to justify warrantless blood draw
Rodriguez drove directly into the path of a school bus, crashing into the bus, severely injuring her and killing her passenger. Rodriguez blood alcohol level was .39, nearly 5 times the legal limit. Rodriguez was convicted of automobile homicide and served 14 months for the murder. An officer found a vodka bottle in the car. As the passenger’s body was being extricated from the mangled car, Rodriguez was taken to the hospital. A short time later, a blood sample was taken. Rodriguez challenged her conviction on the basis that the sample was taken without a warrant. The Court of Appeals agreed and reversed her conviction. The Court of Appeals relied heavily on the fact that officers did not seek a warrant in the frenetic period immediately following the crash. The Court was concerned that blood samples were routinely taken in the cases of serious crashes where alcohol was believed to be a contributing factor.
The Utah Supreme Court reversed the Court of Appeals and reinstated Rodriguez’s conviction. The Court noted that the evidence of intoxication was strong. The investigating noted her slurred speech, bloodshot eyes, and odor of alcohol when he encountered Rodriguez at the hospital. Rodriguez was uncooperative and belligerent. There was also the vodka bottle at the scene. “We agree with the district court that the seriousness of the accident coupled with the compelling evidence of Ms. Rodriguez's alcohol impairment is sufficient to establish that the interests of law enforcement outweighed, in this instance, Ms. Rodriguez's privacy interests.”
The Court declined the State’s request to follow other states in giving particular deference to searches for blood alcohol due to the inherent rapid dissipation of the blood alcohol evidence. The Court’s opinion signals the urgent need for additional discussion and training in obtaining remotely communicated warrants. The Court specifically noted the legal process for obtaining a search warrant by high tech means, adopted in a 2005 statute. Although the system is not yet in place for email warrants (software development is well under way), officers may obtain telephonic warrants in many circumstances. State v. Rodriguez, --- P.3d ----, 2007 WL 221424 (Utah 2007).
Wife's consent to search computer was valid
The Court of Appeals upheld a case reported in 2006 Street Legal concerning a spouse’s ability to consent to a search of a computer. Acting on complaints of EBay fraud connected to the account of Michelle Buckner, officers went to Buckner’s home. Michelle Buckner, Buckner’s wife, leased a computer in her name. She consented to a search of the home and a seizure and search of the computer. Mrs. Buckner claimed to know nothing about EBay transactions and said that she used the computer to play games. The hard drive was mirrored and later analyzed. Evidence of communications fraud was found on the computer and Buckner was charged.
Though Buckner conceded that his wife could consent to a search of the computer, he claimed that she could not consent to files under password protection. However, the court ruled that Buckner assumed the risk that his wife would permit others to use or view the computer. Because Buckner’s wife had a "substantial, legitimate, and overarching interest in all aspects of the computer" she could consent to the search of the computer. The computer was in a common area of the home, it was leased solely to the wife. Moreover, there were no encrypted files on the hard drive. The court noted that Buckner should have reasonably realized that his privacy in his password-protected files was not absolute.
In United States v. Trulock, 275 F.3d 391 (4th Cir. 2001), the court held that one person with joint access to a computer may consent to a general search of the computer in the absence of the other user’s, but could not consent to search the other user’s password-protected files. In the Buckner case, the court deviated from the rule of Trulock because of the “sufficient relationship” between Buckner and his wife. The Court of Appeals found that the officers had not used the forensic computer tools to intentionally defeat passwords put in place by someone other than the consenting party (Buckner’s wife) and therefore their reliance on the |
