2008 Xiphos Archives

Anonymous tip leads to lawful frisk, gun seizure and arrest

Early on a Saturday morning, an anonymous caller told a police dispatcher: “I would like to report a black male with a silver hand gun. He was arguing with his, ah, girlfriend, or whatever.... They were walking toward the 7-Eleven on Miami. He's tall. He's wearing a black jacket and blue jean pants. He has the gun on a holster. And I seen him pull it out.” Responding officers saw Wooden, the man matching the description, and a woman, though they were not arguing. The officers frisked the man and found a gun with the serial number filed off. Wooden challenged the stop and frisk based on the anonymous tip. Ever since the Supreme Court decision in Florida v. J.L., 529 U.S. 266 (2000), courts have struggled to measure the reliability of anonymous tips. Florida v. J.L involved an anonymous tip that a juvenile was standing at a bus station with a weapon concealed under his shirt. Officers found a youth matching the description and frisked him, finding a weapon. The Supreme Court held the frisk to be unlawful because the caller did not provide a basis for believing that the youth was armed and there was no urgency preventing the police from investigating further, such as by asking the youth questions about his activities and whether he was armed.

The court of appeals upheld the frisk in this case. The caller stated how he knew that Wooden had a gun; the caller saw it displayed during an argument. Unlike Florida v. J.L., there was some urgency in investigating the anonymous report “J.L. dealt with a situation in which there was no apparent need for haste, in which the caller did not describe how he knew that J.L. was armed, and in which the tip was not recorded (so the police may have misunderstood the details).” United States v. Wooden, 551 F.3d 647 (7th Cir. 2008).

Dog sniff of perimeter of back yard was not a search

Hayes overdosed on cocaine and police and paramedics responded to his home. An ambulance took Hayes to the hospital. Hayes’ girlfriend consented to a search of Hayes’ home. Officers found marijuana and cocaine residue, as well as a large amount of cash. The officers decided to obtain a search warrant for a more detailed search. While investigators were working on the warrant, a K9 officer watched the house. Because his police service dog had been in the car for some time, the handler let the dog out and began to toss a Frisbee to the dog. The dog showed some interest in bushes. The handler gave a search command to the dog and the dog sniffed through the bushes in Hayes’ front yard and back yard and found a black nylon bag containing 14 ounces of cocaine in the back hedge that separated Hayes’ property from the neighbor. At about that time, other officers arrived with a search warrant.

It is well-established under United States v. Place, 462 U.S. 696 (1983), that a sniff by a drug detector dog is not a search in most cases. That is because there is no reasonable expectation of privacy in the odor of contraband. United States v. Jacobsen, 466 U.S. 109 (1984). In the Second Circuit, a prior case held that a sniff at the threshold of a residence door did constitute a search. United States v. Thomas, 757 F.2d 1359 (2nd Cir. 1985). Other courts have disagreed with the Thomas decision. See People v. Jones, 755 N.W.2d 224 (Mich. App. 2008); Fitzgerald v. State, 837 A.2d 989 (Md. App. 2003) (noting the general disapproval of the Thomas decision). Hayes relied on Thomas to challenge the dog’s sniff of the perimeter of his yard. Hayes also relied on a Supreme Court holding that a thermal image of the interior of a home, revealing a heat signature, was a Fourth Amendment search. Kyllo v. United States, 533 U.S. 27 (2001).

The Court of Appeals rejected Hayes’ claim. The court chose to not explicitly overrule United States v. Thomas. Instead, the court noted that the drug odors did not come from inside Hayes’ home, as was the case in Thomas. The court also rejected Hayes’ argument that the officer and dog had trespassed on the curtilage of his home. The court further stated that the officers did not need a warrant to examine the contents of the bag, which had been tossed into the bushes on the property line, because there was no reasonable expectation of privacy in the tossed bag. United States v. Hayes, --- F.3d ----, 2008 WL 5377682 (2nd Cir. 2008).

Search incident to arrest of container found outside the car upheld

Denk was in the passenger side of a car parked on a county road. An officer stopped to offer assistance. The driver, Pickering, cracked the window and said that they had just stopped to make a cell phone call and the officer walked back to his car. The officer saw that the license plates were expired and ran a registration check. He learned that the plates belonged on another car. The officer knocked on Pickering’s window and Pickering rolled down the window. The officer could then smell the strong odor of freshly burning marijuana. Pickering consented to a search of the car. As Pickering got out, the officer noticed bulges in Pickering’s hooded sweatshirt pockets and the officer frisked him. The officer found a baggie of marijuana, a metal cylinder containing marijuana, scales and a glass pipe. The officer walked up to Denk and asked him whether he was holding any drugs. The officer saw a hard eyeglass case on the ground just outside the passenger door and Denk claimed that it was his. The officer opened it and found a glass meth pipe. He arrested Denk and found marijuana and meth on Denk.

Denk challenged the search of his eyeglass case, arguing that it was not part of a proper search incident to arrest. Denk claimed that the search actually preceded Pickering’s formal arrest. Though the court agreed that the search came before the arrest, the court held that the officer had a legitimate basis for the arrest early in the encounter. The license plate violation was an arrestable offense. The court found it to be insignificant that the actual arrest followed the search by just a few moments. The real question for the court was whether the search of the passenger’s eyeglass case, found outside the car, was properly part of a vehicle search incident to arrest.

In Thornton v. United States, 541 U.S. 615 (2004), the Supreme Court approved the search of a passenger who had recently occupied a vehicle that was properly the subject of a search incident to arrest. The Court specifically rejected a proposed rule that officers must contact the subject while the subject was actually in the car in order for the scope of the search incident to arrest to reach the subject’s person once he got out of the car. However, the Court also gave clear signals of disagreement over how far the search incident to arrest rule has developed from its original basis. The Court is poised to revisit the rationale explained in Chimel v. California, 395 U.S. 752 (1969), as it decides a pending case, Arizona v. Gant (see Xiphos discussion below). The Wisconsin Supreme Court upheld the search of the eyeglass case, discussing the two traditional bases for the search incident to arrest doctrine. The Court held that the eyeglass case could have easily held a knife or razor that presented a threat to the officer, and the case could easily have held contraband (as, in fact, it did). Stay tuned for what is certain to be an extensive discussion of the philosophical underpinnings of the search incident to arrest rule as the U.S. Supreme Court decides the Gant case within the next few months. State v. Denk, 758 N.W.2d 775 (Wis. 2008).

Supreme Court extends qualified immunity to Utah officers, revisits Saucier v. Katz

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. 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. 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.

The United States Supreme Court reversed the Court of Appeals and held that the officers were entitled to qualified immunity from suit. However, the critical holding in the Supreme Court decision does not resolve the issue of “consent once removed.” Though the officers are victorious in the litigation, the real value of this case is that the Court took the opportunity to revise the rule of Saucier v. Katz, 533 U.S. 194 (2001). Saucier imposed an analytical model that required a court deciding the issue of qualified immunity for officers to first decide whether the facts alleged by a plaintiff actually rose to the level of a constitutional violation, and then decide whether the constitutional right allegedly violated was “clearly established” at the time of the violation. Many lower courts had criticized the rigid analytical approach, arguing that some cases could be resolved by more expedient means. The true benefit of this decision is to allow federal courts more flexibility in dealing with civil rights cases and ultimately to save litigation costs and headaches. Pearson v. Callahan --- U.S. ___ 2009 WL128768 (2009).

Court sustains convictions based on sexually-explicit Japanese anime child pornography

Whorley went to the local job service office and used the computers available for job seekers. A state worker approached him and saw that Whorley was printing color images of Japanese cartoons depicting children engaged in sexual conduct. The workers escorted Whorley out and banned him from the facility. A worker sequestered the computer and called the police. Numerous other sexually explicit Japanese anime cartoons of children were open in Whorley’s Yahoo account. The state worker also gave copies of the images to Whorley’s probation officer. He was on probation for downloading child pornography on computers at a local university. Whorley was charged with knowingly receiving obscene material.

In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the Supreme Court found that a statute that prohibited any visual depiction that “is, or appears to be, of a minor engaging in sexually explicit conduct” was unconstitutionally overbroad. The Court held that computer-generated sexually-explicit images that did not depict actual children were not illegal. Congress responded by passing the PROTECT Act and amending the law to prohibit knowingly receiving “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that depicts a minor engaging in sexually explicit conduct; and is obscene.” The Act also states that, “it is not a required element of any offense under this section that the minor depicted actually exist.” The Court of Appeals affirmed Whorley’s conviction, holding that, “regardless of whether [the PROTECT Act] requires an actual minor, it is nonetheless a valid restriction on obscene speech under Miller, not a restriction on non-obscene pornography” of the type permitted by other Supreme Court rulings. The appellate court also upheld Whorley’s convictions on counts involving obscene text messages without any visual images, also based on their obscene content concerning sexual conduct with children. United States v. Whorley, --- F.3d ----, 2008 WL 5265645 (4th Cir. 2008).

Court must determine reliability of drug detector dog

An officer saw Clarkson drive up to a home as the officer watched the home for gang and drug activity. Clarkson’s registration information showed that the plates were expired and there was no insurance on the vehicle. The officer stopped Clarkson as he drove away. As the officer spoke to Clarkson, he observed that Clarkson’s passenger showed signs of being under the influence of drugs. As the conversation continued, another officer arrived with a drug detector dog. The officer told Clarkson that the car matched the general description of a car involved in a robbery that occurred a few nights earlier, just blocks from the location of the stop. Clarkson consented to get out of his car and submit to a frisk. As the first officer was talking to Clarkson outside of the car, the K9 handler directed his dog to perform a sniff of the car’s exterior. The dog gave some indication to the odors of controlled substances near the passenger side door. The handler put the dog into the car and the dog gave a further indication at the front driver and passenger seats. The court report does not state whether the dog provided a positive final response. The officers searched the car and found a fanny pack containing a handgun and a glass pipe similar to those normally used to smoke crack cocaine.

At the time of the sniff, the K9 handler had over three years experience working with drug detection dogs and was also a drug detection dog trainer. The dog had ten weeks of drug detection training, but had suffered an injury and had not completed the certification exam. One of the dog’s trainers, a trainer with decades of detector dog training and judging experience, told the handler that the dog would certainly be certified as soon as the exam was given. Clarkson challenged the search based on the lack of certification. Steven Nicely, the witness hired by Clarkson, criticized the handler’s and the dog’s performance and testified that the dog was not reliable. Notwithstanding, the court relied on the testimony from the handler that the dog indicated to the odors of controlled substance in Clarkson’s car. However, the trial court found that it did not need to determine whether the dog was reliable because there were other factors that supported probable cause to search and because the first officer relied on the handler’s representation about the reliability of his dog and the first officer did not know that the dog was not certified.

The Court of Appeals held that the trial court had erroneous applied a good-faith analysis to the reliability of the dog. The appellate court ordered that the case be returned to the trial court for a determination of whether the dog was reliable at the time of the sniff of Clarkson’s car. However, the appellate court stated that the question of whether the dog was certified or not was not the sole method of showing that the dog was sufficiently reliable to give probable cause to search Clarkson’s vehicle. The court noted that completion of a training course and current certification would be satisfactory to find that the dog was reliable. However, the court explicitly stated that there could be alternative methods of demonstrating reliability. It may be that the dog’s training was sufficiently rigorous and that there were sufficient performance trials during training, that reliability can be established by training alone. “The use of a well-trained narcotics-detection dog–one that does not expose noncontraband items that otherwise would remain hidden from public view, during a lawful traffic stop, generally does not implicate legitimate privacy interests.” Illinois v. Caballes, 543 U.S. 405, 409 (2005). Maintenance training records, while perhaps not critical, are “useful in evaluating a dog’s reliability.” United States v. Boxley, 373 F.3d 759, 761 (6^th Cir.), cert. denied, 543 U.S. 972 (2004). Courts generally consider the triad of training, reliability and certification. When this case reaches the trial court again, it may prove to be a case where the high quality of initial training and demonstrated performance in the field (assuming good record-keeping by the handler) will compensate for the lack of certification. United States v. Clarkson, --- F.3d ----, 2009 WL 27169 (10th Cir. 2009).

Texas court weighs in on "question first, warn later"

Officers arrested Martinez for robbery and murder. They questioned Martinez without providing a Miranda warning. They then had Martinez take a polygraph test and told him that he “failed the test.” Martinez did not make any incriminating statements in his first interrogation. The officers then took Martinez before a judge, who gave him a Miranda warning. They then interrogated him a second time, though only giving him a Miranda warning. Martinez then gave some incriminating responses during the second interrogation. In Oregon v. Elstad, 470 U.S. 298 (1985), the Court ruled that a confession obtained in violation of Miranda rules does not mandate suppression of evidence gained from a subsequent and properly warned confession. This ruling prompted some officers to use a "question first, warn later" technique which was addressed Missouri v. Seibert, 542 U.S. 600 (2004). In Seibert, the Court stated that the Elstad rule could apply in the case of a good faith failure to warn, but not a deliberate case of “question first, warn later.” The Seibert decision was a 5-4 decision, with the crucial vote provided by Justice Kennedy. Though 4 of the justices in the majority advocated a multifactor approach to analyze whether the second interrogation was admissible, Justice Kennedy separately opined that the second interrogation should only be admissible when the failure to give a Miranda warning prior to the first interrogation was a good faith mistake, and was not intended to loosen the suspect’s tongue during the second interrogation. Because the Supreme Court majority was divided, there is no clear rule governing the analysis of when a second interrogation, following an initial interrogation without a warning, will result in admissible evidence.

A closely divided Texas Court of Criminal Appeals adopted the test suggested by Justice Kennedy and held Martinez’s second interrogation was inadmissible because the officer deliberately failed to give the Miranda warnings during the first interrogation. Other state courts and even lower federal courts remain free to choose diverse approaches to analyzing a second interrogation’s admissibility, at least until the Supreme Court clarifies the test. For now, officers should be very cautious in using any type of “question first, warn later” interrogation approach. Martinez v. State, S.W.3d ----, 2008 WL 5234268 (Tex. Crim. App. 2008).

Community caretaking doctrine justified detention

Williams was walking on the roadway median at 0350 on a cold morning. An officer stopped behind Williams, activating emergency lights, and approached Williams to see whether he needed help. Williams told the officer that his car had stalled and he did not need a ride or help. As a matter of routine, the officer asked for Williams name and DOB, which Williams willingly provided. The officer did not use commanding or demanding language and was polite. The entire encounter lasted less than two minutes and Williams went on his way. The officer ran a warrants check and discovered that Williams had arrest warrants. The officer stopped Williams again and asked Williams if he knew why he was back. Williams admitted having arrest warrants and he told the officer that he was carrying a gun. The officer arrested Williams on the warrants and for illegally carrying a concealed weapon. Williams claimed that the initial detention was not supported by reasonable suspicion and the encounter was involuntary.

The Delaware Supreme Court held that Williams was not detained. This holding was based largely on the polite and non-demanding language used by the officer. Talk nice, think mean is a principle of common decency and a principle that results in courts giving greater deference to officers’ actions on the street. Alternatively, the court held that if there was a seizure, the seizure was proper under the community caretaking doctrine. Though this is the first time that the Delaware Supreme Court has ruled on the basis of the community caretaking doctrine, the United States Supreme Court acknowledged in Cady v. Dombrowski, 413 U.S. 433 (1973), that “police officers frequently engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”

The Delaware court described the three factors necessary to justify a seizure under the community caretaker doctrine. The large majority of states have adopted the doctrine in their state court decisions and follow these, or similar, criteria. “The community caretaker doctrine has three elements. First, if there are objective, specific and articulable facts from which an experienced officer would suspect that a citizen is in apparent peril, distress or need of assistance, the police officer may stop and investigate for the purpose of assisting the person. Second, if the citizen is in need of aid, then the officer may take appropriate action to render assistance or mitigate the peril. Third, once, however, the officer is assured that the citizen is not in peril or is no longer in need of assistance or that the peril has been mitigated, the caretaking function is over and any further detention constitutes an unreasonable seizure unless the officer has a warrant, or some exception to the warrant requirement applies, such as a reasonable, articulable suspicion of criminal activity.” Asking for Williams’ name and DOB was an essential part of creating a police report of the encounter. “Officers are often required to make written reports of all encounters; an officer must also know who he has assisted in case someone files a legal claim against him; and innocent activity can turn out later to be criminal activity.” Most courts applying the community caretaking doctrine have allowed the officer to ask for the name and other identifying information of the persons contacted, particularly when the officer poses the request in voluntary, not commanding, language. Talk nice, think mean! Williams v. State, --- A.2d ----, 2008 WL 5064756 (Del. 2008).

Tarp stretched over vehicle and frame is more like a home than a car

An undercover agent saw Hughston make several hand-to-hand drug sales at the Sierra Nevada World Music Festival. The agent called for uniformed officers and arrested Hughston. A search of Hughston’s backpack incident to the arrest revealed several MDMA tablets, baggies of cocaine and baggies of psilocybin mushrooms. Officers also found keys to a rented Hummer. The officers located the Hummer in the parking lot. The Hummer was attached to a 10 by 30 foot aluminum frame covered with a large tarp, secured with zip ties. The enclosure contained other tents for Hughston and his fellow dope sellers. Officers searched the enclosure without a warrant and seized “800 more MDMA capsules, a couple pounds of psilocybin mushrooms, marijuana, approximately a quarter pound of cocaine, a tank of nitrous oxide approximately 5 feet tall, and about 1,000 balloons.” The court held that the search was unlawful because Hughston held an expectation of privacy in the makeshift structure and no warrant exception applied. The court held that “the structure was functionally identical to a camping tent, in that it was a temporary structure designed to provide its occupants a degree of protection from the elements and privacy while staying outdoors.” Many other courts have granted Fourth Amendment protection to camping tents. The prosecutor argued that the drugs would have been inevitably discovered when the car was impounded and towed at the rental company’s request. However, the court declined to apply the inevitable discovery rule, citing the possibility that Hughston’s companions could have removed the drugs before the impound and inventory. There might have been a different result if the officers either obtained a warrant (for which there was very likely probable cause) or if the officers had called the rental company and received the request to impound the vehicle prior to the officers’ search. The automobile search exception did not apply because the Hummer had become part of the “residential” structure. People v. Hughston, --- Cal.Rptr.3d ----, 2008 WL 5006577 (Cal. App. 2008).

Officer liable for injuries following Taser deployment

Parker became intoxicated while boating with his girlfriend. After docking, he drove toward home, speeding past an officer. The officer stopped Parker. Parker admitted to drinking 3 or 4 alcoholic drinks. Another officer, apparently in plain clothes but with a badge displayed, stood to the side as the arresting officer administered field sobriety tests. The officer told Parker that he was under arrest. Parker claimed that the plainclothes officer taunted him and caused him to be confused as the arresting officer gave him commands. When told to place his hands on the car, Parker crossed his arms and told the officer “f--- you.” One officer attempted to force Parker’s arms apart and handcuff him. He succeeded in cuffing one wrist. The arresting officer drew a Taser and warned Parker that he would be shot with the Taser if he continued to resist. Parker grabbed onto the cuffed wrist with his free hand and the assisting officer struggled to break Parker’s grasp. Just one second after Parker released his grip, the arresting officer fired the Taser. The arresting officer perceived that Parker was about assault the assisting officer. Parker fell, suffering a radial nerve injury to his thumb and a rotator cuff injury. Parker alleged that the nerve injury was caused by the Taser.

Despite the fact that Parker told the officers to “f--- you” and gave them “the finger,” locked up his arms crossed on his chest, and grabbed his handcuffed wrist, the court ruled that a jury could reasonably find that Parker’s resistance was de minimis. The court applied the Graham v. Connor factors and ruled that the crime (DUI) was relatively severe, that Parker did not pose a significant threat to anyone, and that Parker was not actively resisting arrest or attempting to flee. The court noted that Parker’s physical force was momentary. The court also observed that the police department prescribed a use-of-force continuum that placed the Taser just below deadly force. The court stated that an agency’s own policy, expressed through a use-of-force continuum “can properly inform the jury about the proportionality of force needed under the circumstances.” Watch for an upcoming Xiphos report on why your agency should not prescribe use of force continuum models.

A court’s written ruling may not include all of the accurate, pertinent facts and courts make serious factual errors when presented with uncontested witnesses who, whether knowingly or not, testify falsely. For example, in this case the court stated that the Taser transmits “a 50,000 volt charge for five seconds.” Any use-of-force expert or qualified Taser instructor familiar with the device knows that this is a patently untrue statement. Though commonly repeated, this is not the truth about a Taser. The peak voltage of an M26 device is 5,000 volts when traveling across a human body, and the voltage is applied only during a pulse, not the interstitial time between pulses, and thus, not for a full five seconds. This case illustrates the advisability of using qualified police procedures and use-of-force experts in an excessive force lawsuit. Parker hired John Ryan, a retired police officer, as an expert witness to support his claim of excessive force. Ryan testified that the Taser deployment “was inconsistent with generally established police practices.” He noted that officers should consider the relative size of the offender and officer (Parker weighed 220 pounds, the arresting officer somewhat more), the number of officers present (three) and whether the offender is armed when assessing which force option to use. Ryan also noted that Parker did not assume a bladed stance, indicating to Ryan that Parker was not assaultive. Ryan reported that Parker put his hands in his pockets briefly without a challenge from the officers, perhaps suggesting that the officers could not have believed that Parker intended to assault them. The court did not cite any testimony by Ryan about the volatility of arrest situations and the speed at which a person passively resisting by locking arms may turn into an actively resisting suspect assaulting officers.

The lawyers for the officers did not use an expert witness. Sometimes that is the wise tactical choice in order to avoid the impression to the jury that the case is a battle of hired guns. Other times this decision imperils the officers’ position. The court decision did not mention any testimony about the likelihood that a physical struggle or fight with a 220 pound man would have resulted in injury to Parker and the officers and that deployment of the Taser is intended to reduce or prevent injuries and the necessity for greater force. It does not appear that there was any testimony regarding why the officer may have fired the Taser a second after Parker ceased his resistance. Dr. Bill Lewinski’s path-breaking work in human factors applied to police use of force and police officer mental chronometry might have been significant in this case. Nor was there any expert testimony challenging Parker’s claim that the Taser produced nerve damage, a highly dubious result. Though the officers would likely have been protected by qualified immunity, regrettably the court ruled that their lawyer had failed to raise that defense until it was too late. Parker v. Gerrish, --- F.3d ----, 2008 WL 4793434 (1st Cir. 2008).

Language of consent leads to voluntary encounter and valid arrest

Ford was walking down a Boston street when he saw two officers in a patrol car. Upon seeing the officers, he ducked his head, turned the corner and began to walk away rapidly. The officers drove along side Ford. The passenger officer leaned out of the patrol car window and asked Ford if he could speak with him for a moment. Ford responded by spontaneously and voluntarily giving the officer his driver license and telling the officer that he had no warrants and was not on probation or parole. The officer asked Ford “where do you live?” and “where are you headed?” Ford appeared annoyed, nervous, and hostile and he was breathing rapidly, stuttering, and his hands were shaking. The officer asked Ford whether he had anything on him that the officers needed to know about. Ford said that he did not. Less than a minute after the initial encounter, the officers stopped the car and got out. Without command, Ford raised his hands above his head. The officer asked whether Ford had a gun, and Ford said that he did. The officers arrested Ford for being a felon in possession of a gun. Ford claimed that the retention of his driver license converted a voluntary encounter (level one) to a seizure requiring reasonable suspicion of criminal activity (level two). Under the Fourth Amendment, a person is seized when the totality of circumstances would cause a reasonable person to believe that he or she is not free to leave or to ignore an officer’s questions. In Muehler v. Mena, 544 U.S. 93 (2005), the Supreme Court held that questioning alone does not constitute a “seizure.” Whether an officer has seized a person’s identification and is holding onto the identification is often a critical issue in determining whether a person is seized. A reasonable person generally does not feel free to leave when an officer holds his driver license. The court held that there was no seizure in this case. Though the officer held Ford’s driver license, that is not the dispositive question. The officer’s language was friendly and non-threatening, did not relate to a particular crime and the encounter took only a couple of minutes. Using the polite language of consent (talk nice, think mean!) helped the court find that this was a consensual encounter. United States v. Ford, --- F.3d ----, 2008 WL 4793420 (1st Cir. 2008).

Drug evidence suppressed following unreasonable handcuffing

Stier made a drug transaction, observed by DEA agents. The agents notified local officers of the drug offense and asked that they find a reason to stop Stier. An officer noted that Stier was driving with mudflaps on his truck that were 4 inches too small under California law and stopped him. One officer dealt with the front seat passenger. The passenger admitted to possessing illegal drugs. The officer told his partner. The officer speaking with Stier then asked him to get out of his truck. When Stier got out, the officer was taken aback by Stier’s height (6’6”). Based on the height disparity and the neighborhood (high drug, high gang crime area), the officer handcuffed Stier. The officer asked whether Stier had any weapons or drugs and asked whether he could check. Stier told the officer that he could check. The officer found a large bag of methamphetamine from Stier’s pocket. Stier’s testimony contradicted the officer’s, claiming that that the officer asked only whether Stier had any needles, and that was after the officer reached in and seized the drugs. Stier claimed that the handcuffing amounted to a de facto arrest and invalidated his consent to the search.

Generally, an officer may handcuff a person during an investigatory detention only when the officer has reason to believe that the person poses a danger or will flee. Handcuffing can create an unintended de facto arrest if handcuffing is not reasonably necessary to effect the investigative detention. Though the arrest may not be intended, it still must be supported by probable cause. The more specific the information an officer has about a suspect's identity, dangerousness, and flight risk, the more reasonable a decision to detain the suspect in handcuffs will be. “Circumstances in which handcuffing has been determined to be reasonably necessary for the detention include when: (1) the suspect is uncooperative; (2) the officer has information the suspect is currently armed; (3) the officer has information the suspect is about to commit a violent crime; (4) the detention closely follows a violent crime by a person matching the suspect's description and/or vehicle; (5) the suspect acts in a manner raising a reasonable possibility of danger or flight; or (6) the suspects outnumber the officers.” In this case, the court noted that Stier was cooperative with the officers, politely answering their questions and obeying directions. In this case, the court held that the height difference alone would not justify handcuffing, and thus the unreasonable handcuffing made Stier’s consent to be searched involuntary. “While a suspect's height may be an appropriate factor for an officer to consider in assessing whether the suspect poses a present physical threat, the parties have not cited to and we have been unable to locate any published case in which a person's height alone was considered an officer safety threat.” People v. Stier, 85 Cal.Rptr.3d 77 (Cal. App. 2008).

Drug detector dog sniff leads to lawful sniff of car passenger

Whitehead was a passenger in the right rear side of a car stopped for a traffic violation. As one of the officers dealt with the traffic violation investigation, another officer walked his drug detector dog around the exterior of the car. This investigatory technique was approved in Illinois v. Caballes, 543 U.S. 405 (2005). The dog gave a final response, indicating the presence of the odors of a controlled substance. Based on the probable cause to search, provided by the trained dog’s final response, and relying on the automobile search exception to the Fourth Amendment warrant clause, the officers searched the car, but found no drugs. The officers then searched the passengers one by one, ending with Whitehead. The officers found two syringes as well as a paper towel that had a “beer bottle cap wrapped up in it” containing a “burnt residue” that appeared to be heroin. Appealing his conviction, Whitehead conceded that the dog’s final response created probable cause to search the car, but not to search the occupants. The court disagreed, holding that the probable cause to search the passengers arose through the process of elimination. The dog’s response created the initial probable cause. When the officers did not find drugs in the car, the probability increased that the passengers were holding the drugs that prompted the dog’s final response. Whitehead relied on another state’s ruling that held a drug detector dog’s final response to the odor of a controlled substance did not create probable cause. However, the court distinguished Whitehead’s case from that case because the officers searched the passengers first in the other case. Thus, the court held that a passenger in a car where a drug detector dog signals the presence of the odors of controlled substances may be searched if officers first eliminate the car as the probable source of the odors through a search of the car. Whitehead v. Commonwealth, --- S.E.2d ----, 2008 WL 4862460, (Va. App. 2008).

Highly-detailed anonymous tip didn't justify DUI detention

Yet another court has weighed in on the quantity and quality of a tipster’s information that will justify a traffic stop. This has been a recurring issue in Xiphos over the past couple of years, as courts balance the need to catch impaired drivers against the drivers’ Fourth Amendment interests. In a narrowly-divided decision, the Virginia Supreme Court recently ruled substantially the same as the Utah Court of Appeals in Salt Lake City v. Bench, reported earlier this year in Xiphos. In the Virginia case, a dispatcher broadcast that there was an “intoxicated driver in the 3400 block of Meadowbridge Road, named Joseph Harris,” and that he was driving a green Altima, headed south, towards the city, possibly towards the south side. The dispatcher also broadcast a partial license plate number of “Y8066” that the driver was wearing a striped shirt. An officer saw a green Altima in the area and noted that the license plate was very close to the partial plate broadcast. The officer followed the car, driven by Harris, but saw no traffic violations. Harris tapped the brakes a few times, then pulled to the side of the road on his own. The officer pulled in behind him and activated his emergency lights. As the officer spoke to Harris, the officer noted slurred speech and a strong odor of alcohol. Harris was convicted of felony DUI (he had two priors) and he appealed, arguing that he was seized without reasonable suspicion.

The officer did not know the identity of the tipster and there was no testimony that the dispatcher obtained the caller’s name and/or any information about the caller’s basis for believing that Harris was impaired. Thought the tip held accurate identifying information, it did not report specifics of erratic driving or other potentially-illegal activity. Whether an officer has reasonable suspicion for an investigatory stop is based on an assessment of the totality of the circumstances, which includes analysis of “the content of information possessed by police and its degree of reliability.” In Alabama v. White, 496 U.S. 325 (1990), the U.S. Supreme Court upheld a traffic stop based on an anonymous tip that a drug courier would leave a particular building and drive in a particular direction. The Court relied on the accurate “predictive” information to uphold the stop. In this case, the Virginia Supreme Court held that the predictive information about the direction of travel was not enough to justify the stop. The court stated that in order for predictive information “to bolster the tipster's basis of knowledge or credibility, the information must relate to the alleged criminal activity. Providing information observable or available to anyone is not predictive information and can only help the police correctly identify the person whom the tipster meant to accuse.” The court observed that the information about Harris conveyed by the tipster was readily available to anyone who saw him driving, including persons who might hold a grudge against him. Because the police did not know the tipster’s identity, the tipster was not at risk of prosecution for providing false information and the police had no way to test the tipster’s basis for the information. As in other cases where courts have struck down stops based on highly-specific information about impaired drivers, the court opined that the officer should have waited to observe a traffic violation before making a seizure. The parties seemed to agree that the officer did, in fact, seize Harris. However, under similar circumstances, an officer might be inclined to check the driver’s welfare if the driver slows and then pulls off the road. Another alternative tactic, which may or may not work, is to wait for the driver to pull back on the road and wait until the driver commits a violation. Harris v. Commonwealth, --- S.E.2d ----, 2008 WL 4756686 (Va. 2008).

Search of home based on girlfriend's consent was valid

In yet another round in the realm of consent to search a home, interpreting Georgia v. Randolph, 547 U.S. 103 (2006), a suspect failed to educate his girlfriend to turn police down when they ask to search. Lopez was a convicted felon who failed a drug test. United States Marshals arrested Lopez on the first floor of his residence. He was clothed only in shorts. A Deputy Marshal accompanied Lopez’s girlfriend to an upstairs bedroom to get some clothing for Lopez. The Deputy Marshal saw drug paraphernalia in the bedroom. He asked the girlfriend for consent to search the room and she agreed. Lopez had a hidden firearm under his pillow (does anyone really sleep with a gun under the pillow?). Lopez was standing, handcuffed, on the first floor landing. However, the Deputy Marshal did not call down the stairs to ask Lopez’s permission to search. Lopez was convicted of possession of a firearm by a restricted person, earning a 4-year prison term. He argued that the officers should have asked his consent to search because he was still present and because it would have been a simple and quick task for them. The court observed that the officers had not separated Lopez from his girlfriend to obtain her consent to search. The court held that “the ease with which law enforcement officers might seek Lopez’s permission to search when a co-occupant has already consented is simply irrelevant.” The burden was on Lopez to object to a search and he did not. Even though Lopez might not have known that the Deputy Marshal would ask for consent to search the bedroom, Lopez presumably knew about the drugs and paraphernalia, as well as the gun, in the bedroom and he could have opted to go to jail clad only in his underpants. It probably would have been less embarrassing than an addition 4 years in prison. United States v. Lopez, --- F.3d ----, 2008 WL 4890155 (2nd Cir. 2008).

Supreme Court revisits search incident to arrest rules

Two cases argued before the United States Supreme Court a few weeks ago hold strong potential for shaking up the rules of search and seizure now applied thousands of times each day. In the first case, Arizona v. Gant, the Court will reexamine the Belton rule permitting the search of a vehicle incident to the arrest of an occupant. In the second case, United States v. Herring, the Court will decide whether a police clerk’s mistake about an arrest warrant should support suppression of evidence found in a search incident to arrest of the man named in the warrant.

Officers visited Gant’s home to investigate a drug tip. They spoke with Gant and learned that he had a suspended driver license and a warrant for a driver license violation. When officers returned later in the day, they saw Gant drive up. One of the officers arrested Gant a few feet from his car. The officer handcuffed Gant and placed him in the back of a patrol car. Incident to the arrest, an officer searched Gant’s car and found a weapon and a bag of cocaine. Gant asked the trial court to suppress the search. The trial court refused and Gant was convicted. The case then began a journey to the Arizona Court of Appeals, the Arizona Supreme Court, the United States Supreme Court, back to the trial court, then to both Arizona appellate courts and finally landing back at the United States Supreme Court on October 7, 2008. A decision from the Supreme Court is expected during this term.

At issue is whether the Court will scale back the circumstances in which officers may conduct vehicle searches incident to the arrest of a car’s occupants. Several of the justices have raised questions about lower courts’ application of the 27 year-old case of New York v. Belton, 453 U.S. 454 (1981). Arizona v. Gant provides the Court with the opportunity to continue the status quo on vehicle searches incident to arrest or to restrict officers’ legal ability to search.

In Chimel v. California, 395 U.S. 752 (1969), the Court focused on the bases for the search incident to arrest doctrine, to wit, safety of the arresting officers and the arrestee’s ability to lunge and grab evidence to destroy it. The Court held that the area of a search incident to arrest was limited to the “grab” or “lunge” area, or the area into which the arrestee could lunge for a weapon or evidence. A few years later, in United States v. Robinson, 414 U.S. 218 (1973), the Court ruled that the fact of an arrest justified a search incident to the arrest. A search was permissible even if there was no possibility that the arrestee could reach for a weapon or evidence. In New York v. Belton, the Court held that an officer making a “lawful custodial arrest of the occupant of an automobile may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile” and containers found in the vehicle. The Belton rule was intended to provide a bright-line rule that did away with the need for an officer on the street and a court reviewing a search to evaluate an arrestee’s actual ability to reach into a vehicle at the moment of arrest. Then, just four years ago, in Thornton v. United States, 541 U.S. 615 (2004), the Court held that a recent occupant of a vehicle may be searched incident to an arrest made near the vehicle. The Thornton Court reaffirmed the wisdom of a bright-line rule governing searches of vehicles incident to the arrest of an occupant.

The Thornton case sowed the seeds for revisiting the bright-line rule of Belton. Since the Belton decision, many lower courts focused on whether a search of a vehicle was substantially contemporaneous to the underlying arrest. Justice Scalia was joined by four other justices in questioning whether lower courts were being too generous in their application of the Belton rule. In State v. Gant, the Arizona Supreme Court pounced on the issue and ruled that Belton was not so much a case about when a vehicle search is allowed as it was a case about the scope of such a search. The Arizona court ruled that an officer must show some basis for concern that evidence is located in the car, or the arrestee could retrieve a weapon from the car, to justify a search. Though some other states’ appellate courts had addressed this issue, the Arizona court was unique in that it based its decision of interpretation of the Fourth Amendment and not on a state constitutional provision. That set a perfect stage for the United States Supreme Court to tackle the question directly.

The Arizona Attorney General argued that the Supreme Court could not reverse the Arizona court without explicitly overruling Belton and upsetting nearly three decades of precedent and police training and practice. The state argued that the cornerstone of Fourth Amendment jurisdiction is reasonableness, a notion frequently mentioned in Supreme Court decisions, and that the Belton rule is eminently reasonable. It is a reasonable rule because it balances an arrestee’s privacy interests against state interests of preserving evidence in the vehicle and in protecting officers and because the rule applies only to lawful arrests. The state also urged the Court to recognize that police should not have to weigh decisions of officer safety against the legal issue of whether the purposes of the Chimel case are met. In short, the balance tilts in favor of officer safety, a conclusion that has worked well for many years and which is not generally abused by officers. A bright-line rule informs the officer of the limits of a search and lets an arrestee know the rules as well.

At the oral argument, Justice Souter stated that applying the bright-line rule when the arrestee is secured in the back of a police car “turns the law into nonsense.” One may reasonably fear that if such a view prevails some officers will decide to accept the risk and decide not to promptly search and handcuff an arrestee in order to preserve the danger that underlies the search incident to arrest doctrine. Though a neat legal theory, this possibility portends more dead police officers. Justice Kennedy urged the state to turn to alternative justifications for a search of a vehicle incident to arrest, such as community caretaker concerns that would justify an inventory to prevent vandalism or theft of the vehicle contents, or the justification of mobility of the vehicle. However, to simple apply the automobile search doctrine is to also state that probable cause to search must be present. That effectively ends the search incident to arrest justification of the vehicle search. This was the position that Justice Stevens argued for (and lost) in the Belton case.

Chief Justice Roberts asked questions that acknowledged that Gant’s arguments are nearly identical to the arguments raised in the Belton case 27 years ago. He asked Gant’s lawyers what had changed in the past years to make Belton ripe for reversal. A few of the justices noted the time-honored principle of stare decisis, which holds that the Court should not reverse prior decisions without good cause. Justice Breyer observed that we have trained 100,000 police officers in the Belton rule and it seems to be applied daily without abuses. He also stated a concern that officers would put themselves at risk by delaying securing arrestees in order to allow a search of the vehicle. Justice Scalia quipped that 27 years is not very long. He asked, “What would have happened if police stopped Thomas Jefferson's carriage to arrest him?” Justice Scalia, known for his preference for bright-line rules that give effective guidance, also asked, “I mean, if the police arrest Mother Teresa, they are still entitled to frisk her, right, even though there’s little likelihood that she has a Gatt (gun)?”

At the end of the day, will the justices prefer clear, bright-line rules that guide police, but being the risks of inflexibility and the occasional slight hardship? Will the justices hold to precedent in the face of little, if any, real change in the arguments raised decades ago? Will officers be left with a rule that is both confusing and encourages officers to weigh personal safety against potentially collecting evidence of crimes against the public? State v. Gant, 162 P.3d 640 (Ariz. 2007), cert. granted, 128 S.Ct. 1443 (U.S. Feb. 25, 2008).

Search incident to arrest valid following mistaken arrest?

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. The Supreme Court agreed to review the case and decide whether the good faith exception to the exclusionary rule should apply.

In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court held that evidence obtained during execution of a faulty search warrant should not be suppressed if the officer acted in good faith reliance on a facially-valid warrant. The Court ruled that evidence seized during an arrest based on an invalid arrest warrant left in place due to a court clerk’s error should not be suppressed in Arizona v. Evans, 514 U.S. 1 (1995). Now the question is whether the good faith exception should apply when it is a police employee, not a court clerk or judge, who makes an error and another officer relies on the erroneous information to make an arrest, search incident to the arrest, and seize evidence.

In the Evans case, the Court relied heavily on the fact that the person making the error, the court clerk, had no dog in the fight of whether a prosecution resulted in a conviction. Lawyers for Herring emphasized that this was an error by police. They argued that even though it was different police agency that made the error, the arresting agency should be held to account and the evidence suppressed. Evan’s lawyers claimed that punishing the police for the error would be an incentive to avoid such errors in the future. The state countered that the deterrent value of suppression was insignificant. Moreover, the real victim of suppression is not the officer or police agency, it is the societal interest in securing evidence of crimes.

Following the Court’s views expressed in Hudson v. Michigan, 547 U.S. 586 (2006), Chief Justice Roberts wondered whether suppression was an appropriate remedy when no one did anything wrong, but the error was merely negligent. In Hudson, the Court reminded that the exclusionary rule should be reserved for situations in which its drastic impact will be justified by its remedial objective. In this case, the arresting officer had no reason to doubt the accuracy of the information supplied by the neighboring county. What possible remedial effect would the exclusionary rule have on the officer? Justice Alito wondered at Herring’s focus on the fact that it was a police clerk, not a court clerk, that made the error. He asked what it mattered whether an error was made by a unionized clerk or a “computer guy?”

Justice Scalia cited the reasons against suppression as a remedy listed by the Court in Hudson. In Hudson, the Court ruled that the exclusionary rule is not the proper remedy when police execute a valid search warrant but err in complying with the knock and announce rule. Police agencies have reached high levels of professionalism and are becoming ever more professional. Persons aggrieved by police mistakes or misconduct have easy access to courts to sue for civil rights violations. Moreover, citizens more frequently have access to citizen review boards and other internal complaint systems. The state also noted that officers have no motivation to make mistaken arrests. Arrests present dangerous situations and officers won’t want to unnecessarily place themselves in danger.

It seems a small step from excusing an arrest based on a court clerk’s error to allowing evidence seized in an arrest prompted by a police clerk’s error. There is no good purpose served by suppression of the evidence in Herring’s case. The officer did nothing wrong. Perhaps one ironic lesson for Herring (and others) is that they shouldn’t come to visit the police while holding illegal drugs. United States v. Herring, 492 F.3d 1212 (11th Cir. 2007), cert. granted,128 S.Ct. 1221, (U.S. Feb 19, 2008).

Forced blood draw suppressed in fatal crash

Tripp pulled in front of a motorcyclist in an intersection. The motorcyclist had the right of way and was traveling at the speed limit. Tripp crashed into him and killed him. The investigating officer asked Tripp to consent to a blood draw for a BA test. The officer had no suspicion that Tripp was impaired. However, it was his personal policy to request a blood draw in all serious crashes. The officer believed that no warrant was required for a blood draw in the case of a serious crash. Tripp refused repeated requests, citing a fear of needles. No effort was made to obtain a PBT or Intoxilyzer test. Finally, the officer told Tripp that she would be forced to give blood. Tripp did not physically resist. A victim advocate held Tripp’s hand and an officer covered her eyes. The blood test showed a metabolite of cocaine and a blood alcohol level just slightly over the legal limit. Tripp was charged with automobile homicide.

Tripp claimed that the search (blood draw) was without probable cause and without her consent. The state argued that Tripp’s failure to withdraw her arm before the needle was inserted was a clear sign of consent. One of the witnesses said that Tripp was crying and was pulling her arm away. The court held that Tripp did not consent. She refused several times. Though she did not resist the blood draw, she had just been told that a warrant would be obtained and that she would be forced to give blood. It is unclear whether a warrant could have been obtained because the officers testified that they saw no signs of impairment.

The state also argued that there were exigent circumstances justifying the blood draw. The court held that the exigent circumstances doctrine could not apply because there was no probable cause. Though one officer testified that Tripp was red-eyed and shaking, he also acknowledged that persons involved in a serious crash might shake, and the red eyes could be due to crying. No officer offered any testimony about balance, slurred speech, odor of alcohol or performance on field sobriety tests. The court also rejected the state’s inevitable discovery argument, finding that it was based on the mistaken belief that the Fourth Amendment warrant requirement does not apply in serious crashes. Some Utah officers have long held a belief that a serious crash justifies a blood draw. Though there may be probable cause and there may be exigent circumstances justifying a forced blood draw, the fact that a fatality or serious crash occurs does not, in and of itself, ever justify a warrantless, forced blood draw. State v. Tripp, 2008 WL 4739022 (Utah App. 2008).

Mass murderer's (over 8,000 victims) claim of coerced confession rejected

As a common criminal and a member of the 10th Sabotage Detachment of the Army of the Republika Srpska in Bosnia and Herzegovina, Boskic committed wartime atrocities against humanity. He hid in Germany, then sought asylum in the United States. In his immigration application, Boskic omitted his criminal record and his military record. After being granted permanent resident status, Boskic filed an application for travel documents. JTTF agents devised an immigration interview concerning the travel documents as a ruse for an interview regarding Boskic's past military service. An investigator administered an oath and Boskic swore to tell the truth. The investigator gave an oral Miranda warning in English and written warnings in English and Serbo-Croatian. Boskic acknowledged that he understood his rights. The investigator then told Boskic that he did not really need travel documents because he had a valid Bosnian passport endorsed as a permanent United States resident. Boskic insisted that he needed new documents. The investigator asked Boskic about military and criminal history. Though Boskic acknowledged serving in the Yugoslavian army, he denied other military service and denied a criminal history. The investigator told Boskic that the FBI would then join the interrogation.

When confronted with statements about his Sabotage Detachment service, Boskic claimed that Muslims had lied about him. After FBI questioning, an investigator for the international war crimes tribunal entered the room. He told Boskic that Boskic was not the focus of his investigation, a statement that none of the agents in the room denied. He confronted Boskic with a videotape of Boskic participating in the Sabotage Detachment’s award ceremony. Boskic than admitted to his activity in the Branjevo Military Farm massacre and he talked about his role in the genocide at Srebrenica. The agents questioned him extensively and persuaded Boskic to write down a narrative of his activities. They also obtained consent to search Boskic’s home and car for evidence of other persons’ genocidal activities. When they completed their interrogation, Boskic was arrested.

Boskic claimed that the interrogation was unconstitutionally coercive because he was tricked into participating in the interview when he was told that it was necessary to process his travel document request. The trial court found that Boskic would not have talked about his role in the genocide if he had known that he was, in fact, the target of the investigation. Boskic claimed that the investigators crossed the line between permissible trickery and unconstitutional coercion by remaining silent when the international investigator lied about Boskic being the target of the investigation.

The court held that the trickery was not unconstitutionally coercive. “Here, there were no such extrinsic factors that distorted Boskic's judgment about the evidence implicating him in making false statements to immigration authorities or that cast doubt on the reliability of his statements.” Though the investigator’s lie that Boskic was not the target of the investigation “may have made him less guarded and self-protective, that deception alone did not make his statements involuntary.” Thus, the court held that an officer may deceive a suspect about whether the suspect is the focus of the investigation and subsequent statements will be admissible. Deception becomes unconstitutionally coercive when it creates a motivation to confess extrinsic to the suspect's guilt or innocence.

Boskic entered the United States using his own name. He was arrested on a variety of petty crimes in his Peabody, Massachusetts, hometown. He threatened a reporter who tracked him down, saying “how would you like to get whacked?” Boskic is accused of participating in the murder of over 8,000 children, mothers and fathers. He was personally responsible, with 7 colleagues, for pulling the trigger and murdering 1,200 men in one killing spree. Boskic was not charged with war crimes, merely immigration crimes. He will serve a mere 5 years and 3 months in the relative comfort and security of a federal prison. United States v. Boskic, 2008 WL 4648362 (1st Cir. 2008).

Court rejects traffic stop made after driver waved arms and pointed at another driver

A driver waved her arms at an officer and pointed to the car in front of her. The officer got between the two cars and stopped the first car, driven by Day. The second car stopped behind the officer. That driver spoke with the officer about Day’s driving and the officer approached Day. Later at trial, the prosecution failed to elicit testimony about what the second driver reported to the officer. When the officer spoke to Day, he smelled alcohol. He arrested Day and administered a breath test. Day had a .25 BAC. Day claimed that the officer lacked reasonable suspicion for the stop. Courts have struggled with balancing the need to protect communities against deadly impaired drivers and the personal liberty rights of motorists. Many courts have tilted in favor of impaired drivers when the stop is made on the basis of an anonymous caller. Callers who give their names are presumed to be reliable in most cases. Courts also look to the specificity of the details provided in the tip. In this case, the tipster was present at the scene, willing to speak to the officer about the details that she had observed. She was the antithesis of an anonymous tipster as she was essentially confronting the other driver (Day) at the scene. However, the court considered Day’s appeal from the perspective that the officer knew only that the second driver had pointed at Day. There might have been a different result if the prosecutor introduced testimony about what the second driver told the officer about Day before the officer contacted Day. The court also noted that the officer did not follow Day to personally observe any traffic violations. However, it is difficult to criticize an officer who relies on an apparently reliable witness and stops a driver before harm results. State v. Day, --- S.W.3d ----, 2008 WL 4287637 (Tenn. 2008).

Neither a translator nor written Spanish DUI refusal warning required when officer makes "reasonable efforts" to communicate

An officer found Garcia sound asleep at carwash at 1603. Garcia did not respond as the officer tapped on the window. The officer opened the truck door and spoke with Garcia and he remained asleep. After shaking Garcia, the officer spoke with him and smelled alcohol. Garcia said that he had been working and was just tired. An open can of beer sat next to Garcia. A PBT test showed a BA of .198. The officer arrested Garcia. Garcia submitted to a BA test at the county jail, registering .144. Garcia challenged the admissibility of the results on the grounds that the test refusal advisory warning was not provided in Spanish. The officer testified that Garcia appeared to understand their conversation and understood the discussion about having someone come to retrieve his truck so that it would not be towed. The officer provided Garcia with Miranda warnings in Spanish. When the officer asked Garcia whether he would take a test, Garcia replied that he understood the warning and taking the test was “no problem.” The officer did not read the test refusal advisory warning in Spanish, likely because it was not available. Garcia signed a test consent form. He never indicated that he did not understand the form until the suppression hearing.

The court applied a “reasonable efforts” standard to Garcia’s claim and allowed the breath test evidence. The court found that the officer had gone to reasonable efforts to provide the appropriate warning to Garcia, and that providing a translator or printed Spanish language warning notice was not required. The court stated that, "although making an interpreter available when possible is desirable, finding an interpreter is not absolutely necessary and should not interfere with the evidence-gathering purposes of the implied consent statute." State v. Garcia, --- N.W.2d ----, 2008 WL 4308327 (Iowa 2008).

Factors for custody finding when suspect is interviewed in his own home

An FBI agent identified Craighead as a person transmitting child pornography images over the internet. The agent obtained a search warrant for Craighead’s housing on the Davis-Monthan Air Base in Tucson. The warrant was served by the FBI, Pima County SO and the Air Force OSI. An Air Force sergeant accompanied the warrant team to offer emotional support to Craighead. The agent and a detective took Craighead to a small storage room in the back of his residence so that they could question him in private. The detective sat between Craighead and the closed door. The AF sergeant assigned for emotional support was not present and Craighead was not told of the sergeant’s support role. At the beginning of the interview, the agent told Craighead that he was not under arrest, would not be arrested, the interview was voluntary, and he was free to leave whenever he wished. The agent did not give Miranda warnings. Craighead admitted to downloading child pornography over Limewire.

Craighead asked the court to suppress his statements. He claimed that he did not believe that he was free to leave because an officer blocked his exit, there were other law enforcement agents that might not have let him leave, the prevailing mood was coercive (at least some agents had entered with drawn guns wearing raid vests), and he was unsure whether the AF officials would allow him to leave. The court found that Craighead’s statements were involuntary, and ordered that his admissions be suppressed. The court noted that telling a person that he is free to leave his own home while officers are in the home, “the most constitutionally protected place on earth,” may not count for much. The court listed several factors to consider custody status of a person questioned in his own home. Those factors include: "(1) the number of law enforcement personnel and whether they were armed; (2) whether the suspect was at any point restrained, either by physical force or by threats; (3) whether the suspect was isolated from others; and (4) whether the suspect was informed that he was free to leave or terminate the interview, and the context in which any such statements were made." Considering the totality of the circumstances, the court ruled that a reasonable person in Craighead’s circumstance would believe that he was not free to leave. Had Craighead been given a Miranda warning and had he agreed to answer questions the case would have had an entirely different result. Even without a Miranda warning, two facts may well have turned this decision in another direction. If the officer had not blocked the door and if the agent had confirmed that all of the agents would have allowed Craighead to leave, the case may well have turned out in the prosecution’s favor. However, hindsight is always 20/20. United States v. Craighead, --- F.3d ----, 2008 WL 3863709 (9th Cir. 2008).

Strip search of all booked misdemeanor arrestees allowed

Powell and a number of other males arrested on minor misdemeanor charges sued the Fulton County, Georgia, Sheriff for the jail policy of strip searches conducted in large groups for all booked prisoners. Earlier court rulings had held that strip searches must be based on reasonable suspicion that an individual prisoner was concealing contraband. The court overruled its prior cases, and held that all prisoners being booked into the jail, no matter the severity of the offense or whether there is individual reasonable suspicion of concealing contraband, may be strip searched. Powell v. Barrett, --- F.3d ----, 2008 WL 4072800 (11th Cir. 2008).

Three year passage of time did not extinguish invocation of right to counsel

Shatzer had his 3 year-old son perform fellatio on him and then masturbated near the child. A family services worker contacted police. An officer spoke Shatzer, then imprisoned on a separate charge of sexual abuse of a child. Shatzer waived his rights. However, when he learned the subject of the interrogation, he invoked his right to an attorney and the interrogation ceased. Three years later, the son made more specific allegations. Another officer visited Shatzer (still in prison). Shatzer waived his rights, signed a written waiver, and admitted to masturbating before his son. When questioned about ordering his son to perform fellatio on him, Shatzer began to cry and stated that “I didn’t force him.” Shatzer asked the court to suppress his statements, claiming that the invocation of a right to an attorney three years prior still effectively barred interrogation about the oral sex.

Many courts have ruled that the passage of time can be a factor in extinguishing an invocation of the right to an attorney. The Supreme Court was set to decide the issue 15 years ago, but the case became moot when the defendant died in prison. Another complication in Shatzer’s case was that the court found that he was “continuously incarcerated” between the first and second interrogations. Most courts rule that there is a break in “custody” for Miranda purposes when a prisoner is returned to general population following an interrogation about a crime unrelated to the crime for which the prisoner is incarcerated. The court ruled that Shatzer’s original invocation of the right to an attorney was still valid and Shatzer’s statements were suppressed. The dissent recognized that this is a minority position. Nonetheless, the rule is binding on officers in Maryland. This decision should prompt officers to carefully discuss the initial invocation of the right to counsel when there is a second interrogation and the suspect agrees to answer questions without an attorney present. Officers should also do everything possible to ensure that the second interrogation is not custodial. It is far from clear that other courts would reach the same result. Shatzer v. State, --- A.2d ----, 2008 WL 3896759 (Md. 2008).

Wall stop upheld on "fellow officer" rule

DEA agents arranged for a CI to buy a kilo of cocaine from Chavez. Once the sale location was arranged, the agents surreptitiously tailed Chavez. An agent called a state trooper and told him that Chavez was carrying cocaine, but that the trooper would need to develop his own reasonable suspicion for a stop and then find his own justification for a search. This technique is often known as a “wall stop” because the stopping officer is “walled off” from the information provided by a CI. The trooper saw Chavez and stopped him for a traffic violation. Chavez refused consent to search. The trooper detained Chavez long enough for a canine sniff. The drug detector dog gave a final response to the odor of a controlled substance. A subsequent search revealed the cocaine.

Chavez sought to suppress the evidence of the search. The prosecution elected to rely on the information known to the DEA agents as the justification for the detention and search, even though the trooper was unaware of all of the information provided by the CI and the surveillance. The Court of Appeals applied the “collective-knowledge doctrine,” also known as the "fellow officer rule." This rule allows the arresting officer to rely on the statement of a fellow officer that there is reasonable suspicion for a detention and/or probable cause for an arrest or search. The court held that "an officer who was not intimately involved in an investigation can rely on the collective knowledge of the investigators to stop and search a vehicle when justifiable conclusions of the collective investigation are conveyed to him” even when the full measure of the investigative information is not passed on to the officer. United States v. Chavez, --- F.3d ----, 2008 WL 2893057 (10th Cir. 2008).

"Hell hath no fury . . . ." Spouse's consent to search valid over DV suspect's denial

Henderson’s wife called police after he choked her and threw her out of the house. When officers went into the house, Henderson told them to get the “f___ out of his house.” The officers arrested Henderson and took him to the police station. Henderson’s wife told officers that he had weapons in the house and had a history of drug and gun arrests. She agreed to a search of the home and signed a consent form. She showed officers where Henderson hid crack cocaine and drug-dealing paraphernalia, four handguns, a shotgun, a rifle, a machine gun, and live rounds of ammunition. Officers also found a machete, a crossbow, and more ammunition, as well as an M-1000 explosive device. The wife then suggested that the officers also search the family car, and she signed another consent form. This search uncovered additional crack cocaine. Henderson asserted that his statement to officers to get the “f___ out of his house” should have been understood as refusing consent to search and he sought suppression of all of the evidence.

In Georgia v. Randolph, 547 U.S. 103 (2006), the Supreme Court ruled that officers may not rely on a co-tenant's consent to search a shared residence if the officers "removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection." The Randolph Court held that the officers should not have relied on the wife’s consent to enter and search when the husband was present and he objected to the search. Since the Randolph decision, courts have arrived at varying conclusions of its application. In United States v. Hudspeth, 518 F.3d 954 (8th Cir. 2008) (see Xiphos report below), the court recently upheld a search by officers who searched a home when Hudspeth’s wife consented, after Hudspeth denied consent to search. However, Hudspeth was arrested at his office and was not initially present at the home. The Ninth Circuit reached a different result in United States v. Murphy, 516 F.3d 1117 (9th Cir. 2008). Officers arrested Murphy in the doorway of the storage unit where he lived and cooked meth. After they took him to jail, the officers called the man listed on the lease as the renter and obtained his permission to search. The court invalidated the search and suppressed the evidence. The court ruled "that when a co-tenant objects to a search and another party with common authority subsequently gives consent to that search in the absence of the first co-tenant the search is invalid as to the objecting co-tenant." The court did not set any parameters for when the tenant’s objection might expire. Under the Ninth Circuit’s reasoning, a man who tells his sister-in-law to get out of the house would effectively ban the sister-in-law forever (or at least until he changes his mind) even if his wife invited her sister back to the house when the man was not home. Such a result clashes with the Supreme Court’s reasoning in Randolph when the Court stated that it was relying on social conventions to reach its decision.

There was no evidence that the officers arrested Henderson in order to remove him from the scene and object to his wife’s consent to search. Even if his initial order to get the “f___ out” of the home that he shared with his wife and children was a refusal to consent to search, the wife’s later consent was valid as to her interests and Henderson’s. Thus, the search was proper and the evidence was admissible. The very recent conflict in decisions by the various courts of appeals may well prompt the Supreme Court to revisit the issue. There is little doubt that Henderson, Hudspeth and/or Murphy will seek Supreme Court review of their cases. United States v. Henderson, --- F.3d ----, 2008 WL 3009968 (7th Cir. 2008).

Search warrant relying on none-too-honorable informant upheld

Lambson met with Keener's father at Keener's house. At the house, Keener's father showed him a bag of jewelry, and sold the informant a ring for $50. Lambson also saw “two large bags of marijuana and a triple beam scale” on a table in the house. When Lambson tried to pawn the ring, the clerk at the pawn shop recognized the ring as stolen and called the police. Officers questioned Lambson about the ring, and Lambson identified other items that were in the bag that he had seen at Keener's residence as being items on a list of stolen jewelry. Officers used this information to obtain search warrants for Keener’s residence and his father’s residence. The affidavit for Keener’s father’s home stated that Lambson was a person “who was detained by Murray Police, concerning a stolen ring.” The same judge read both affidavits and issued both search warrants on the same day.

Keener sought suppression of the search of his home, arguing that the affidavit contained intentionally or recklessly made misstatements and that the affidavit did not state sufficient facts to support probable cause for the search. Keener argued the affidavit for the search of his home did not describe Lambson’s full role and culpability and that Lambson was not a citizen informant who should receive a presumption of reliability. Lambson had a criminal record that was not recited in either affidavit. Keener also claimed that the court erred in considering his prior criminal history in the probable cause analysis.

The court noted that the issuing judge knew of Lambson’s role because it was more fully described in the affidavit for the search of Keener’s father’s home and the judge read the two applications together. Further, the officers told Lambson that he would be prosecuted for false statements if he was lying to them. The court ruled that Keener’s robbery and burglary arrests, dating from 5 to 14 years prior to search warrant affidavit, did not support a finding of probable cause. However, the drug-related arrests, one of which was as recent as only seven months prior to the affidavit, may be part of the circumstances considered in a probable cause determination. Applying the “flexible totality-of-the-circumstances standard,” the court ruled that there was sufficient probable cause for the search. State v. Keener, --- P.3d ----, 2008 WL 2854144 (Utah App. 2008).

PC to arrest driver in drug deal

An undercover officer arranged a cocaine buy with Delossantos. Delossantos told the undercover officer that he thought that he recognized him as a cop (we catch the dumb ones). Nonetheless, Delossantos gave the officer the cocaine and told him that he could also get heroin. The officer later arranged a second meeting to buy cocaine and heroin. Rodriguez drove Delossantos to the home believed to be the drug storage location and then to designated meeting place as officers tailed them. At one point during the convoluted route, the officers lost sight of Rodriguez and Delossantos. Arriving at the location, Delossantos spoke with officers on a cell phone and told the officers to follow the car to yet another location to make the sale. During one of the phone calls, officers could hear another male voice in the background. At the final meeting place, officers arrested both Rodriguez and Delossantos. Delossantos claimed that Rodriguez was his roommate and that he knew nothing about Delossantos’s drug sales.

Rodriguez claimed that there was insufficient probable cause to arrest him. The Court of Appeals disagreed and upheld the arrest. In Maryland v. Pringle, 540 U.S. 366 (2003), the Supreme Court ruled that there was probable cause to arrest of all three car occupants after an officer found packets of cocaine hidden in the rear seat arm rest. The Court based its decision on the small, confined space of a car interior leading a reasonable officer to believe that a significant quantity of drugs would be known to all occupants, there was a significant amount of cash in the front of the car (glove box) indicating drug dealing, and all three having denied ownership of the drugs. The Court of Appeals found this case to be analogous to Pringle. Moreover, the court recognized that the officers “could have reasonably inferred that Delossantos was unlikely to be accompanied by an innocent person because Delossantos was already suspicious [about the identity of the buyer as an officer] and thus had reason to worry about the prospect of a witness against him.” The officers also testified that drug dealers rarely bring innocent third parties to an open drug deal. United States v. Delossantos, --- F.3d ----, 2008 WL 2854119 (2nd Cir. 2008).

Videotaped interrogation leads to murder conviction

Montero and fellow gang members were partying and arguing. Montero fatally shot a gang brother in the back. Police arrested Montero. A detective interrogated Montero intermittently over a 6 hour period. The detective videotaped the interrogation, a step that later proved to be key in getting the confession admitted as evidence. Montero claimed to be a tender youth of 18 from Venezuela, who barely spoke English. He alleged that the detective coerced his confession to the murder. Montero claimed that the detective used the false-friend technique, was persistent over 6 hours, made promises and threats, kept Montero incommunicado for 6 hours, did not feed Montero or let him lie down.

The Court of Appeals watched the videotape of the interrogation and quickly saw that Montero’s claims were either false or overstated. When a defendant claims that a confession was involuntarily given, the prosecution has the burden to show by a preponderance of the evidence that the confession was voluntary, based on the totality of circumstances. Courts consider factors such as the duration of interrogation, persistence of officers, police trickery, absence of family and legal counsel, threats, promises, defendant’s mental health, age, education, mental deficiency, emotional instability and familiarity with the judicial system. The court noted that the videotape showed that the detective did not make any threats or improper promises. The tape also showed that Montero was only questioned for about half of the six hour period. Montero also claimed that he had asked to call his mother and visit the restroom. Again, the tape proved those claims to be false. The tape also showed his excellent command of English. Considering the totality of the circumstances, the court ruled that the confession was voluntarily given and admissible. State v. Montero, --- P.3d ----, 2008 WL 2854143 (Utah App. 2008).

Officer waits for suspect to leave and gets consent to search from girlfriend

Groves was a convicted felon, prohibited from possessing ammunition or firearms. After reports of gunshots, police saw shotgun shells outside Groves’ house. They asked Groves for consent to search his house. He refused. A judge refused a warrant. An officer figured out when Groves would be at work and Groves’ girlfriend would be home. The officer went to Groves’ home and the girlfriend consented to a search. The officer found ammunition used to convict Groves. In Georgia v. Randolph, 547 U.S. 103 (2006), the Supreme Court ruled that a co-tenant, with equal rights of control over a home, can void the consent to search given by another co-tenant if both parties are present at the home. Subsequent cases have ruled that officers cannot remove a suspect from the home in order to ask another party for consent to search. Groves claimed that, by waiting for him to be away from the home, the officer did the functional equivalent of removing him from the home in order to get consent to search from the more cooperative girlfriend. In Randolph, the Supreme Court ruled that trumping consent by one co-tenant requires an "express refusal of consent by a physically present resident." The Court continued: “So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant's permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant's contrary indication when he expresses it.” The Court of Appeals considering Groves’ claim ruled that active participation in removing the objecting party from the home is required to defeat the consent of another co-tenant. Since the officer did not actively remove Groves, the girlfriend’s consent was valid and the evidence was properly obtained in a lawful search. United States v. Groves, 530 F.3d 506 (7th Cir. 2008).

DNA obtained by ruse is admissible in other crimes

While Wyche was in jail for a probation violation, a detective asked for a saliva sample, telling Wyche that he was suspected in Winn-Dixie supermarket burglary. The detective invented the story about the supermarket burglary in order to obtain Wyche’s consent to take swabs for a sexual crime investigation. Wyche consented to the sample and his DNA cleared him on the sexual assault. However, another detective learned that Wyche had given a DNA sample and asked for the sample to be compared to blood drops left at a gift shop burglary scene. This time Wyche’s DNA matched. Wyche claimed that his consent was rendered involuntary by the first detective’s pretense of the false supermarket burglary. The Florida Supreme Court disagreed. Though the police deception was a factor in the analysis, Wyche knew that they wanted the DNA sample to investigate a crime. The detective did not tell Wyche that he had to give the sample. The detective made no threats and no promises of lenient treatment to obtain the sample. Thus, applying a totality of circumstances analysis, the consent for the DNA sample was voluntary. Score one for a creative and committed Florida cop! Wyche v. State, --- So.2d ----, 2008 WL 2678058 (Fla. 2808).

Pair of interrogation cases illustrate complexities of invocation of rights

Maldonado was arrested and jailed for sexual abuse of a child. Counsel was appointed for him on the day that he was indicted. Five days after the indictment and appointment of counsel, a detective went to see Maldonado in the jail. The detective did not know that legal counsel had been appointed for Maldonado. The detective introduced herself to Maldonado. Maldonado immediately gave her a folded letter and told her that he had written a letter about “what had happened” on the night when he allegedly abused the child. Maldonado said that he had been wanting to talk to someone about what had happened. The detective asked whether Maldonado wanted to talk to her and he said that he did. She advised him of his Miranda rights and Maldonado waived his rights. Maldonado’s lawyer visited him for the first time on the following day.

Maldonado claimed that his statement violated the Sixth Amendment right to counsel. In Michigan v. Jackson, 475 U.S. 625 (1986), the U.S. Supreme Court ruled that once the Sixth Amendment to legal counsel has attached through the filing of formal charges, subsequent statements obtained by police and taken in the absence of legal counsel are presumptively inadmissible. In Jackson, the Court ruled that "if police initiate interrogation after a defendant's assertion of the Sixth Amendment right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid." However, in subsequent cases, the Supreme Court made it plain that a formally-charged defendant who has legal counsel may voluntarily initiate a conversation with police in the absence of legal counsel. The test for admissibility of such statements is guided by an old case, Massiah v. United States, 377 U.S. 201 (1964), in which the Court barred the admissibility of a defendant’s incriminating statements that are “deliberately elicited” by police in the absence of the defendant’s attorney. In Fellers v. United States, 540 U.S. 519 (2004), the Court observed that deliberate elicitation can happen even without interrogation. The key issue is whether the officers said something that was reasonably interpreted to prompt an incriminating response.

Merely listening to a legally represented, formally charged defendant’s voluntary statements does not constitute “deliberate elicitation.” In this case, Maldonado handed the letter to the detective and said that he had been wanting to talk about the incident before the detective even told him why she wanted to talk to him. Thus, the court disagreed that the Sixth Amendment had been violated and ordered that the letter and subsequent interrogation was admissible. State v. Maldonado, --- S.W.3d ----, 2008 WL 2261776 (Tex. Crim. App. 2008).

Redgebol was arrested for sexual abuse of a child. Redgebol is a Sudanese immigrant who fluently speaks only the Dinka tribal language. It took police nearly 2 days to find a Dinka interpreter. When they did, they found an interpreter certified as a medical interpreter, though not a court interpreter. The interpreter did not understand some of the legal terms. The interpreter used some Arabic words to explain Miranda rights because certain words did not translate into Dinka and Redgebol appeared to understand the Arabic words. After a lengthy dialogue about the right to counsel, Redgebol appeared to request an attorney. The officer honored his request and told Redgebol that he would not question him at that time. Less than a minute later, Redgebol told the officer that he wanted to speak about the alleged crime right then.

Once a suspect has invoked either the right to remain silent or the right to counsel under the Fifth Amendment, police must scrupulously honor that request. In Oregon v. Bradshaw, 462 U.S. 1039 (1983), the Supreme Court ruled that a court must consider the totality of the circumstances in deciding whether to admit a statement taken from a suspect who has invoked the right to an attorney and later waived that right. There are two prerequisites. First, the suspect –not police– must initiate the conversation. Second, the suspect must then give a valid waiver of the right to counsel. In this case, a sharply-divided court ruled that previous cases where courts found a valid waiver of the right to counsel involved conversations initiated by suspects that were hours or days after the initial attempt at interrogation. Because Redgebol’s initiation of a conversation and waiver of the right to counsel was almost immediate after the failed initial interrogation, the court ruled that the incriminating statements were inadmissible. This case’s precedent is limited to Colorado, and the ruling is unique in its focus on the short time between invocation and following waiver. However, it illustrates the principles that an officer must apply when attempting to interrogate a suspect who has invoked a Fifth Amendment right to counsel and then wishes to waive that right. Sixth Amendment rights, as illustrated in the previous case, are construed even more rigidly in favor of a formally-charged defendant. People v. Redgebol, 184 P.3d 86 (Colo. 2008).

Apparent authority to consent ruled invalid

Officers received a tip that Purcell, an escaped convict, was in a hotel room. They went to the room and found Purcell and his girlfriend. Concerned that Purcell was cooking meth, the officers called for further assistance. When the officers entered the room, they obtained consent from Purcell’s girlfriend to search a backpack and two large duffle bags. As they searched, they found men’s clothing, but no women’s clothing or personal effects. The officers found a bag of marijuana in the backpack and a gun in one of the duffle bags. Purcell challenged the right of the officers to continue to rely on the apparent authority of the girlfriend to consent to the search after the officers found only men’s clothing in the luggage. The court held that the officers properly relied on the girlfriend’s consent at the beginning of the search. However, as they failed to find any of her clothes or personal effects, the officers should have recognized the ambiguity of her consent and they should have inquired further about her control over the bags. "When a situation starts as unambiguous but subsequent discoveries create ambiguity, any apparent authority evaporates." Despite the apparent conflict with other circuits’ rulings, the Sixth Circuit explicitly denied that it was creating a rule that officers must have positive knowledge that a bag or container is under the authority of the person who gave consent prior to relying on that consent. United States v. Purcell, 526 F.3d 953 (6th Cir. 2008).

Jury finds Taser liable

Taser International has lost -for the first time ever- a products liability lawsuit. Robert Heston’s parents called Salinas, California, police when Heston began acting strangely and throwing household items out of the front door. Officers returned after a second call to the house. When efforts to get Heston to cooperate failed, officers fired a Taser at Heston. Heston became unconscious and stopped breathing and lost his heartbeat. Heston died at a local hospital on the following day.

A federal court jury ruled that the officers did not use excessive force. However, the jury found that Taser International “knew or reasonably should have known that the Taser ECD [electronic control device] was dangerous or likely to be dangerous because prolonged exposure to electric shock from the device potentially causes acidosis to a degree which poses a risk of cardiac arrest in a person against whom the device is deployed.” The jury also found that Taser failed to warn Taser purchasers and users of that risk. The jury awarded $21,000 in compensatory damages and $200,000 in punitive damages to the Heston's estate for injuries suffered prior to his death. The jury also awarded $1 million in compensatory damages to his parents (the ones who called the police about their drug-abusing, out-of-control adult son) and $5 million in punitive damages. However, the jury found that Heston was 85% responsible for his injuries. Thus, Taser International was assessed only 15% of the damage awards. Watch here for an almost-certain appeal and a very likely reversal. This is one that Taser should win on legal principles in a court of appeals. Thanks to Xiphos reader Chris Gebhardt for spotting this ruling. Heston v. City of Salinas, No. C 05-03658 (N.D. California, San Jose Div., June 6, 2008).

Sending a link to child pornography does not constitute "distribution"

Navrestad accessed an internet terminal on a pay-per-session basis at a US Army internet café in Germany. He chatted with an undercover New Hampshire officer, believing that he was chatting with a 15 year-old boy. He encouraged the “boy” to have sex with a younger boy and send him picture. Navrested accessed stored web files containing child pornography and sent links to the files to the undercover officer. Navrested was charged with possession and distribution of child pornography. In a sharply divided opinion, the Court of Appeals for the Armed Forces held that Navrestad did not possess the files because they were not stored on the computer that he was using. The court also ruled that sending the link, without embedded images, did not constitute distribution. Other courts have held that sending links constitutes de facto distribution of the data or images accessed through the links. Officers investigating similar cases should carefully check to see whether any of the accessed images are stored, even in a temporary cache, on the computer terminal. United States v. Navrestad, 66 M.J. 262 (C.A.A.F. 2008).

Mistaking Glock for Taser in fatal shooting measured by variety of factors

Police arrested Torres following a disturbance call, handcuffed him, and placed him in the back of a patrol car. Torres began kicking at the rear window of the car. An officer approached the car and warned Torres. When Torres did not stop, the officer reached for a Taser, located in a thigh holster just below the officer’s Glock pistol. The officer mistakenly drew the similarly sized and weighted firearm and fatally shot Torres in the chest. Torres’ family filed suit under 42 U.S.C. § 1983, claiming that his death constituted an unreasonable seizure under the Fourth Amendment. The trial court ruled in favor of the officer, stating that “a Fourth Amendment seizure occurs only when there is a governmental termination of freedom of movement through means intentionally applied.” Plaintiffs challenged the standard applied by the court.

The Courts of Appeals in the various circuits take slightly different approaches to evaluating whether the reasonableness requirement of the Fourth Amendment applies to police conduct in civil rights cases. In this case, the court held that the critical issue is whether the officer’s error that resulted in injury was “objectively unreasonable” and the court should consider: “(1) the nature of the training the officer had received to prevent incidents like this from happening; (2) whether the officer acted in accordance with that training; (3) whether following that training would have alerted the officer that he was holding a handgun; (4) whether the defendant's conduct heightened the officer's sense of danger; and (5) whether the defendant's conduct caused the officer to act with undue haste and inconsistently with that training.” Moreover, the reviewing court must consider that officers are forced to make force decisions in split-seconds. The Court of Appeals instructed the trial court to reconsider the matter in light of these factors. Torres v. City of Madera, 524 F.3d 1053 (9th Cir. 2008).

Detective denied qualified immunity for hidden camera in police locker room

Schneider was investigating the theft of a flashlight from a police locker room. He placed a hidden video camera in the area where officers used the toilet, undressed and showered. The officers learned of the camera and filed suit. Schneider sought qualified immunity, claiming that his fellow officers lacked an expectation of privacy in the locker room. Though the area was not open to the public, officers routinely undressed in other officers’ presence. The surveillance, videotaping of nude bodies, was particularly intrusive. Moreover, the officers did not know about the surveillance and could not reasonably be expected to know that another officer would target the area with a hidden camera. The court noted that privacy did not require solitude. The court found that the officers held a reasonable expectation of privacy in the locker room. Accordingly, the court denied qualified immunity to Schneider. Bernhard v. City of Ontario, 2008 WL 687352 (9th Cir. 2008).

No expectation of privacy in government office computer

Larson, an Air Force major, used his military office computer to download porn and chat with an undercover officer posing as a 14 year-old girl. He arranged to meet the “girl” for sex and was arrested. Officers searched his computer and found pornography and records of the sexually-explicit chats. Larson challenged the search of his computer. The court ruled that “because the computer had a ‘consent to monitoring’ banner that had to be acknowledged with each log on, the system administrator had access to every part of the computer, including the hard drive, and the computer was government property.” Therefore, Larson could have no expectation of privacy in the computer and the search was valid. United States v. Larson, 66 M.J. 212 (C.A.A.F. 2008).

Driving too slowly not always grounds for a stop

An officer stopped Valadez-Valadez for driving 45 mph in a 55 mph zone. Valadez-Valadez had nearly two dozen passengers crammed into the pickup truck, many of whom were undocumented aliens. The officer based the stop on a New Mexico statute that bans driving at a slow speed that impedes reasonable traffic. Valadez-Valadez was driving on a curvy, hilly road. There was a safe passing zone near where the officer stopped the truck. The court ruled that the officer lacked reasonable suspicion for the stop and suppressed the evidence of the illegal aliens. Though many courts have upheld DUI stops based on driving excessively slowly, this court believed that 10 mph under the limit was not too slow, particularly where traffic was not actually impeded. United States v. Valadez-Valadez, 525 F.3d 987 (10th Cir. 2008).

Deputy convicted of white collar crime for lying in a police report

After a suspect yelled obscenities at officers, Deputy Hunt placed the suspect in a bearhug and took him to the ground. The suspect’s head hit the concrete, causing serious injuries and permanent hearing loss. Hunt wrote in a use of force report that the suspect attacked him. The FBI investigated and found that Hunt’s statement was false. Hunt was charged under the Sarbanes-Oxley Act. That act was intended to criminalize false entries in records with the intent to impede or obstruct a federal investigation into white collar crimes. The provision under which Hunt was charged makes it crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United.” 18 U.S.C. § 1519. The act was passed on the heels of the Enron, Worldcom and Tyco scandals. Nonetheless, the court determined that it can apply to false statements in a police use-of-force report, and upheld Deputy Hunt’s federal conviction. United States v. Hunt, --- F.3d ----, 2008 WL 1932111 (11th Cir. 2008).

Protective sweep following stand-off ruled illegal

Robertson came home drunk and fought with his girlfriend. When he threatened suicide, the girlfriend left the home. She heard two gun shots and called police. Officers surrounded the home and had a lengthy stand-off with Robertson. When Robertson sat on a window ledge, an officer fired a Taser and captured Robertson. Robertson and the girlfriend told the officers that there was no one else in the home. Without seeking consent to enter from Robertson or his girlfriend, officers breached the barricaded door and conducted a protective sweep, seizing a shotgun and photographing evidence. Robertson challenged the search.

The Virginia Supreme Court ruled that the protective sweep was unlawful. This case illustrates the different rules for protective sweeps applied by courts. In Maryland v. Buie, 494 U.S. 325 (1990), the Supreme Court ruled that officers may conduct a “limited protective sweep” following an in-home arrest when officers have a reasonable belief, based on specific and articulable facts, that the area may conceal a person posing a danger to the officers or others at the arrest scene. Many, but not all courts, allow a protective sweep when the suspect is arrested just outside the home. Officers are generally legally able to conduct a protective sweep when a person is arrested immediately outside a home, if the officers can point to some fact suggesting that a person who poses a threat may be inside the home. In this case, the officers relied on procedures, rather than analyzing the justification for the entry and sweep. The case might well have had a different outcome if the officers had conducted the sweep, but then obtained a search warrant to seize the shotgun and other evidence. Alternatively, obtaining consent to enter from the girlfriend would have changed the outcome.

The prosecution argued that the exigent circumstances doctrine justified the entry into the home. The court disagreed, again noting that there was no evidence to suggest that additional suspects were present in the home. Commonwealth v. Robertson, 659 S.E.2d 321 (Va. 2008).

Even in cases of barricaded suspects, courts apply the exigent circumstances doctrine very narrowly. For example, in a recent civil action against the San Jose (Ca.) police, a panel of judges from the Ninth Circuit Court of Appeals sustained damages and an order for future training of officers when officers fired gas into a suspect’s home during a 12-hour stand-off with the heavily armed, intoxicated man. The court found that the initial exigency had dissipated. That decision has been heavily (and rightly!) criticized and a rehearing en banc has been ordered. Fisher v. City of San Jose, 509 F.3d 952 (2007), vacated for rehearing en banc, 519 F.3d 908 (9th Cir. 2008) (en banc).

Search of drug courier's cell phone allowed

Fierros-Alavarez was stopped for failure to pay a turnpike toll. He was arrested on several minor traffic offenses. Fierros-Alavarez was talking on his cell phone at the time of arrest. He handed the cell phone to the trooper and encouraged him to talk to the person on the other end of the call. Another trooper searched the car incident to the arrest and found a hidden compartment. A drug detection dog gave a final response indicating the presence of the odors of controlled substances. Troopers found three pound of methamphetamine. A trooper searched Fierros-Alavarez’s cell phone phone directory and list of recent calls. Fierros-Alavarez claimed that the warrantless search violated the Fourth Amendment and the Electronic Communications Privacy Act, 18 U.S.C. § 2515.

In Smith v. Maryland, 442 U.S. 735 (1979), the Supreme Court found no reasonable expectation of privacy in a dialed phone number recorded by a pen register because the caller must provide the number to the phone company in order to complete the call. In the present case, the court cited Smith v. Maryland and ruled that Fierros-Alavarez lacked a reasonable expectation of privacy in the recent calls list. The phone directory search didn’t reveal any additional information beyond that contained in the recent calls list. The court stated that the search of the phone was permissible under the automobile search doctrine as evidence of drug trafficking. The automobile search doctrine also justified any invasion of privacy prohibited by the Electronic Communications Privacy Act. Even if it didn’t, suppression is not the prescribed remedy for a violation of the Act. The court only analyzed the search under the automobile exception to the Fourth Amendment, but did not discuss the search incident to arrest upon which other courts have relied to justify cell phone data searches. United States v. Fierros-Alavarez, --- F.Supp.2d ----, 2008 WL 1826188 (D. Kan. 2008).

US Supreme Court upholds search following arrest held illegal under state law

Moore was stopped after an officer heard that his license was suspended. Moore did not have a valid license and officers arrested him. However, under Virginia law, driving on a suspended license does not usually justify a custodial arrest. (In this case, the arrest was ruled to be improper by the Virginia Supreme Court.) Officers searched Moore incident to the arrest and found 16 grams of cocaine. Moore claimed that the drugs should be suppressed because he should not have been arrested and searched. The Virginia Supreme Court agreed with him.

The United States Supreme Court reversed and held that an arrest based upon probable cause that a person committed a crime may be accompanied by a search incident to arrest, even when the arrest may be unlawful under state law. Because Moore’s arrest met constitutional standards of being based upon probable cause to believe that he committed the crime of driving with a suspended license, the drug evidence should not have been suppressed. Virginia v. Moore, --- S.Ct. ----, 2008 WL 1805745 (U.S. 2008).

Court allows inventory following discretionary impound

Smith and Santiago were stopped when an officer recognized Smith as a wanted person. Smith was arrested. Smith and Santiago both denied owning the vehicle. Officers believed that it would have been unreasonable to lock the car and leave it parked in the particular neighborhood where the arrest occurred. The officers impounded the car and drove it to the station. The impound decision was based on the officers’ discretion and not on any formal policy. During an inventory at the station, an officer found a gun in the glove box. The officer then obtained a search warrant for the car. Smith admitted to putting the gun in the car. He was a felon and prohibited from gun possession. Smith asked that the gun be suppressed because the inventory was not conducted pursuant to a non-discretionary inventory policy.

In Colorado v. Bertine, 379 U.S. 367 (1987), the Supreme Court ruled that officers could exercise discretion to impound and inventory a vehicle following an arrest “so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.” Smith argued that the impound was flawed due to the lack of a standard criteria to guide the impound decision. Some appellate courts have ruled that an impound and inventory conducted outside of standard criteria effectively creates a presumption that the inventory was improper. Other courts have concentrated on the language in the Colorado v. Bertine decision that bars an inventory on the basis of suspicion of criminal activity. Those courts have upheld inventories that resulted from “community caretaking” concern and the courts examine the fundamental reasonableness of the impound and inventory decision. The officers in Smith’s case were worried about the safety of the car left on the road in a high-crime neighborhood. The Smith court sided with the circuits that follow the reasonableness rule and upheld the inventory. However, the court cautioned police departments to avoid claims that an inventory was improperly motivated by adopting formal impound and inventory policies. United States v. Smith, --- F.3d ----, 2008 WL 942666 (3rd Cir. 2008).

Burning marijuana justifies exigent circumstances entry into motel room

Officers at a motel on a theft call smelled burning marijuana coming from Rodriguez’s room. They knocked and identified themselves. After a few minutes, and after officers heard persons scurrying around and talking in hushed voices, Rodriguez opened the door. The officers recognized him from previous drug arrests. They could now plainly smell the marijuana smoke. The officers entered, seized contraband, and then obtained a search warrant for the motel room. Rodriguez claimed that the entry was illegal.

The court ruled that the entry was justified by the exigent circumstances doctrine. Even though Rodriguez was in a motel room, the court considered it his “home” for Fourth Amendment analysis purposes. Several states’ courts have previously ruled that the exigent circumstances doctrine will not allow warrantless entry for mere marijuana possession cases. State v. Duran, 156 P.3d 795 (Utah 2007); Howe v. State, 916 P.2d 153 (Nev. 1996); People v. Cohen, 496 N.E.2d 1231 (Ill. App. 1986). Those courts have relied on the Supreme Court decision in Welsh v. Wisconsin, 466 U.S. 740 (1984), in which the Court stated that the gravity of the crime is a critical factor in applying the exigent circumstances doctrine. The Welsh case involved a DUI investigation; at the time, DUI was a non-jailable minor offense in Wisconsin. Many courts have considered the exigent circumstances doctrine in light of whether the crime was jailable or non-jailable. Since the Welsh decision, the Supreme Court has decided Illinois v. McArthur, 531 U.S. 326 (2001). In McArthur, the Court recognized that a minor possessory marijuana crime justified excluding McArthur from his home for 2 hours while officers waited for a search warrant. The New Hampshire court followed this reasoning to determine that the burning marijuana, being destroyed by the burning, created a sufficient exigency to justify warrantless entry. Officers must recognize that this issue is a matter of great division among the states and must follow their own state’s court rulings. State v. Rodriguez, --- A.2d ----, 2008 WL 942634 (N.H. 2008).

Warrant required for search of squatter's makeshift tent

Investigating a series of property crimes, officers learned that Pruss was heavily armed and was committing the crimes with the intent to draw officers to his camp on public lands in order to kill the officers. The officers outwitted Pruss and extracted him from a tent covered with vegetative camouflage, using gas to persuade him. The officers searched the tent. Pruss challenged the search and asked that the evidence seized be suppressed on the grounds that the tent was his home. Pruss was squatting on public lands. The Idaho Supreme Court agreed with Pruss, and ruled that officers should have obtained a search warrant. The Court noted that no one had told Pruss that he was squatting and had to leave. “We hold that a person using a temporary shelter on public lands as his or her living quarters has a reasonable expectation of privacy in that shelter and that the government may not intrude into the shelter without a search warrant, absent an exception to the warrant requirement.” State v. Pruss, --- P.3d ----, 2008 WL 802926 (Idaho 2008).

Warrants check on passenger upheld after remand from US Supreme Court

Harris, was a passenger in a car that was for an illegal turn. The officer asked Harris for his identification and Harris produced a state ID card. The officer conducted a computer check and arrested Harris for a warrant. The search incident to arrest revealed cocaine and drug paraphernalia in Harris’s jacket pocket. The Illinois Supreme Court initially ruled the check of Harris’s identification was improper. The prosecution appealed to the U.S. Supreme Court, which overturned the Illinois decision and directed that the Illinois court reconsider the case in light of Illinois v. Caballes, 543 U.S. 405 (2005). The Illinois Supreme Court framed the question before it as: “when a person is lawfully seized, but the police lack individualized reasonable suspicion, may the officer request that the person provide identification and then use that information to conduct a warrant check?” The court ruled that, unless the check unreasonably prolongs the stop, an officer may ask for a passenger’s identification and may run a warrants check. However, the passenger is free to refuse to provide identification.

Following the U.S. Supreme Court decisions in Illinois v. Caballes and Muehler v. Mena, 544 U.S. 93 (2005), courts have allowed greater investigative freedom during traffic stops. Many courts had rigidly held to principles drawn from Terry v. Ohio and ruled that any questioning beyond the purpose of the traffic stop or requests for consent to search must be based on reasonable suspicion of criminal activity. Caballes established that officers may conduct a suspicionless canine sniff at a traffic stop during the stop, as long as the sniff does not unreasonably prolong the stop. Muehler clarified that questioning during an otherwise lawful seizure does not constitute a distinct 4th amendment event or further seizure and such questioning does not require reasonable suspicion. The Illinois court considered these two cases and overruled a prior case that required officers to have reasonable suspicion to ask questions unrelated to the initial purpose of the traffic stop. The court then held that drivers and passengers do not have an expectation of privacy in the contents of public records, such as would be revealed during a warrants check. Thus, a warrants check on passengers that does not unreasonably extend the traffic stop is permissible.

Harris argued that he did not voluntarily produce his identification. Acknowledging the recent case of Brendlin v. California, in which the Supreme Court ruled that a passenger is seized during a traffic stop, the court held that Harris’s claim must address the question of "whether an innocent person in defendant’s circumstances would have felt free to decline to produce his identification for the officer." In other words, would a reasonable person believe that he or she could decline the officer’s request for identification documents or identifying statements? The court opined that a reasonable person in Harris’s position would feel free to refuse to identify himself, even though he knew that the driver was being arrested.

Harris could have asked the officer the purpose of the identification request. The officer testified that he intended to verify whether Harris could drive the car once the driver was arrested. Other possible explanations to such a request might include the desire to list witnesses’ names on the arrest report, to know with whom the officer was dealing, or to determine the relationship of the passengers to the driver or to the car owner. This case emphasizes the legal consequence of using the language of consent and persuasion to obtain identification and make a lawful warrants check. Talk nice, think mean. People v. Harris, --- N.E.2d ----, 2008 WL 733756 (Ill. 2008).

Court articulates legal authority to respond to mass murder threats

Mora, a city firefighter, called a mental health hotline and told the operator that he was suicidal, had weapons in his apartment, could understand shooting people at work, and said, “I might as well die at work.” Within 3 minutes of receiving a call from the hotline operator, police spoke to a co-worker and confirmed that Mora's threats should be taken seriously. Officers also learned that Mora's girlfriend had recently ended her relationship with him. Officers arriving at Mora’s apartment parking lot found him loading suitcases and gym bags into a van, and they approached with guns drawn. Mora was handcuffed and placed on the ground. Officers searched his suitcases and found a single bullet. They entered Mora’s apartment and seized numerous guns, thousands of rounds of ammo, and survivalist literature scattered throughout the apartment. Mora was taken to a psychiatrist. After his release from mental health care, Mora requested the return of his guns and other property. The police department asked him to answer questions about his mental health and he refused. The department retained the weapons and ammo. Mora sued, claiming 4th amendment and due process violations for the warrantless entry into his home and seizure of his property.

Unlike most 4th and 14th amendment lawsuits that follow an arrest or some other criminal process, officers in this case acted in a preventive mode. The court observed: “The legal issues are somewhat novel, and so we proceed with two values in mind: the need to prevent massacres whose human costs are beyond comprehension, and the need to preserve civil liberty for those who may be angry and depressed but not ultimately violent, and who cannot under our constitutional traditions be treated like criminals when they have committed no crime. Our task is to develop a framework for analyzing the constitutionality of preventive action."

The court cited the tragedies of Columbine and Oklahoma City and stated that “protecting the physical security of its people is the first job of any government, and the threat of mass murder implicates that interest in the most compelling way. Police, then, simply must be entitled to take effective preventive action when evidence surfaces of an individual who intends slaughter.” The court held that the reasonableness of preventive police action, in the face of a threat of violence, will be considered in light of three factors. First, the likelihood or probability that the danger will come to pass. Second, how quickly the harms sought to be prevented will occur. Third, the gravity of the danger. Law enforcement decisions in these urgent circumstances are entitled to deference by reviewing courts. The court ruled that the officers had acted properly. Even though Mora was temporarily confined in a mental health facility, it was proper to enter the home without taking the time to obtain a warrant and it was proper to seize the weapons and ammunition because an associate could have obtained the weapons and continued a plan for slaughter. Mora v. City of Gaithersburg, --- F.3d ----, 2008 WL 565711 (4th Cir. 2008).

Detention and frisks ruled illegal

Baker was a passenger in a car stopped for no license plate light. The driver was arrested on a drug crime warrant. She was handcuffed and placed in a patrol car. Rather than conduct a search of the car incident to the driver’s arrest (which would be plainly lawful), the officer called for a drug detector dog from a neighboring city. One passenger was wearing a knife in open view. Another officer asked the 4 passengers to surrender any knives and he collected a dozen knives. The passengers were cooperative and remained seated in the car. A few minutes after the driver’s arrest, a detector dog arrived and sniffed the car. When the dog indicated that there were odors of controlled substances around the car, the officers told the passengers to get out of the car and then frisked them. Baker had glass pipes in his pants pocket and shoe. Following his arrest, an officer found 71 grams of meth on Baker.

The officer testified that there was no reason to fear for their safety or to believe that the passengers were armed (once they voluntarily surrendered the knives). The frisks were based on the dog’s final response to the odor of drugs. There was no reasonable suspicion that the passengers were involved in any crime. The court first addressed the question of whether the passengers were seized by the driver’s traffic stop. “When a police officer makes a traffic stop, the driver of the car [and the passengers are] seized within the meaning of the Fourth Amendment.” Brendlin v. California, 127 S.Ct. 2400 (2007). The seizure and detention continued while waiting for the drug detector dog. One officer testified that the passengers were not free to leave during this time.

The exclusive lawful reason for a frisk under the authority of Terry v. Ohio, 392 U.S. 1(1968), is to check for weapons when there is a reasonable belief that the suspect is armed and presently dangerous. The prosecution argued that the number of knives suggested that the passengers were armed and dangerous. However, the passengers were cooperative and their knives had been removed. The court found that the only reason for the detention was to await a dog for a drug sniff and the only reason for the frisk was to search for drugs. Thus, both the detention and the frisks were unlawful. Contrast this case to Illinois v. Caballes, 543 U.S. 405 (2005), in which the court found that a suspicionless sniff was lawful because it was conducted while the officer was issuing a citation to the driver. In the present case, the driver had been arrested and removed before the canine sniff. The detention would have been proper if there was reasonable suspicion that the passengers were involved in criminal activity. In Maryland v. Pringle, 540 U.S. 366 (2003), the Supreme Court upheld the detention of passengers when the driver consented to a search revealing a large amount of cash in the glove box and 5 bags of drugs behind the rear passenger armrest. The Court ruled that there was reasonable suspicion to believe that all of the passengers were involved in a drug crime. Had the officers asked Baker to voluntarily consent to a frisk that revealed obvious contraband, the evidence would have been admissible. State v. Baker, --- P.3d ----, 2008 WL 879403 (Utah App. 2008).

Eighth Circuit reverses itself in child pornography search

Officers executed a search warrant at Hudspeth’s business in connection with pseudoephedrine sales. They were surprised to find child pornography on his computer. They arrested Hudspeth and ask for consent to search his home computer. He refused. An officer went to Hudspeth’s home and spoke with Mrs. Hudspeth, asking for consent to search the computer. She asked to think about it and unsuccessfully tried to call her attorney. She then asked what officers would do if she refused consent. The officer told her that he would leave a uniformed officer at the home with the computer and seek a search warrant. She then consented to the search.

This case was reported in Xiphos in 2006. Though a panel of the Eighth Circuit found that her consent was voluntary and that she had authority to consent, the court ruled that her consent could not trump Hudspeth’s refusal to consent. We noted that a different result was expected, in light of developing case law under Georgia v. Randolph and United States v. Matlock (in which the Court ruled that a physically present cohabitant could consent to a search of the home when the physically absent non-consenting cohabitant who had been arrested). Now two years later, the entire panel of the Eighth Circuit has reversed the panel in procedure known as an en banc hearing.

The court held that "the same constitutional principles underlying the Supreme Court's concerns in Randolph apply regardless of whether the non-consenting co-tenant is physically present at the residence, outside the residence in a car, or, as in our case, off-site at his place of employment." The court also held that the officers did not have a duty to inform Mrs. Hudspeth that her husband had been jailed following the search at his business. Thus, the child pornography found on Hudspeth’s home computer could be used in evidence against him. United States v. Hudspeth, --- F.3d ----, 2008 WL 637638 (8th Cir. 2008) (en banc).

Developments in detention jurisprudence

A pair of cases, the first from Alaska and the second from Nebraska, illustrate developments in lower courts’ interpretations of the ground-breaking cases of Illinois v. Caballes and Muehler v. Mena. Turvin was stopped for speeding. As the Alaska trooper ran a license and registration check over the radio, another trooper recognized Turvin’s name from a prior methamphetamine lab case. The second trooper drove to the traffic stop and informed the first trooper of the drug history. The trooper paused from writing a citation to approach Turvin and talk to him about meth. The trooper told Turvin that he had learned of his history and commented on the odd box in the truck. Turvin said that it was a speaker enclosure. Turvin consented to a search, which revealed an illegal shotgun and some meth.

A case decided two years ago by the Supreme Court, Muehler v. Mena, 544 U.S. 93 (2005), held that “mere police questioning does not constitute a seizure." Following that logic, a number of courts have ruled that questioning during a traffic stop need not be related to the purpose of the stop as long as the questioning causes only a brief delay in the stop. For example, see the Xiphos Archives for United States v. Valenzuela, 494 F.3d 886 (10th Cir. 2007) (Muehler implicitly overruled court’s prior decisions limiting the scope of questioning during a traffic stop).

Key to the court’s ruling allowing the drug questions was the duration of the stop. The questioning about meth occurred only 14 minutes after the initial stop. "This is no longer than an ordinary traffic stop could reasonably take.” The court found that the questioning created no or little inconvenience. The court noted that the conversation was “calm and relaxed.” “Talk nice, think mean!” is more than a social nicety. Talking nice, using the language of consent, often leads to findings of valid consent and/or lawful detention. United States v. Turvin, --- F.3d ----, 2008 WL 495861 (9th Cir. 2008).

In the second case, an officer was watching a suspected drug dealer’s home after neighbors complained of drive-in drug sales. The officer had a detector dog with him. He saw Louthan come out of the target home and drive away in a car with expired registration. The officer stopped Louthan and learned that Louthan was free on bond for recent drug charges. He noted that Louthan was “extremely nervous.” Seven minutes into the stop, the officer directed his dog to sniff Louthan’s car. The dog’s final response lead the officer to methamphetamine.

The Nebraska Supreme Court held that the appropriate standard for a brief delay to deploy a drug detector dog at a traffic stop, even where the dog is already present at the stop, is reasonable suspicion. The court agreed that there was reasonable suspicion of drug possession and upheld Louthan’s arrest.

In Illinois v. Caballes, 543 U.S. 405 (2005), the Supreme Court ruled that officers do not need independent cause to deploy a drug detector dog for a sniff of a vehicle lawfully detained on a traffic violation. However, the sniff in Caballes was accomplished without extending the time necessary to conduct the traffic violation. Thus, the Court did not decide whether a brief detention for a sniff required independent reasonable suspicion of a drug crime. Some courts have allowed brief extensions of traffic stops for a canine sniff. United States v. $404,905.00, 182 F.3d 643 (8th Cir. 1999) (a case decided prior to Caballes which held that "when a police officer makes a traffic stop and has at his immediate disposal the canine resources to employ this uniquely limited investigative procedure, it does not violate the Fourth Amendment to require that the offending motorist's detention be momentarily extended for a canine sniff of the vehicle's exterior"). Other courts have found that where a stop is based on probable cause, not mere reasonable suspicion, officers have more leeway in the scope of questioning and the duration of the stop.

Courts may follow the seemingly relaxed pragmatic approach toward detention found in Caballes and Mena and continue to move toward a more universal de minimis rule, allowing canine sniffs that only briefly extend a traffic detention. However, at least in Nebraska, the rule for even a momentary detention for a sniff remains at the reasonable suspicion standard. State v. Louthan, 744 N.W.2d 454 (Neb. 2008).

No detention allowed on reasonable suspicion of completed misdemeanor

Another court has weighed in on the question of whether an officer may detain a person on the basis of reasonable suspicion of a completed misdemeanor (See discussion in United States v. Griggs in Xiphos Archives). An officer responding to a call of suspicious activity in an area known for drug trafficking saw three males at a bus stop in the area. They fit the suspect description given by dispatch. The officer frisked them and found ammunition in Hughes’ pocket. Hughes was on probation for a DV offense and was charged with federal gun statutes prohibiting possession of ammunition when a restricted person based on DV conviction. Hughes argued that the detention was unlawful because the crime (trespass) was completed by the time that the officer saw him and his companions. Several courts follow the rule that a detention may not be based on any completed misdemeanor crime. Others balance the nature of the crime against the scope of the detention. See Xiphos Archives for United States v. Moran, 503 F.3d 1135 (10th Cir. 2007) (following a balancing test). In Hughes, the 8th Circuit held that an investigative detention to investigate a completed misdemeanor may be justified only where the underlying crime poses a threat to public safety that outweighs the intrusion on the suspect’s privacy rights. In this case, there was no information to justify a belief that Hughes and his companions constituted a threat to public safety by the possible trespass. United States v. Hughes, --- F.3d ----, 2008 WL 482414 (8th Cir. 2008).

Ninth Circuit follows Brigham City v. Stuart

Someone called the police from Snipe’s home and yelled “get the police here now” and hung up. Officers went to the house, found the door ajar, knocked and entered. Snipe and friends were sitting around the kitchen table, with a pile of drugs on the table. The officers didn’t questions Snipe about the drugs, but did ask him about an injured party and who called the police. Snipe said that he didn’t know anything about anyone being hurt, but the officers could look around. They did, found no one injured, left and obtained a search warrant to return and seize the drugs. Snipe claimed that the initial entry was unlawful. The Ninth Circuit Court of Appeals has previously considered an officer’s subjective intent when analyzing entries under the emergency aid doctrine. However, the court reevaluated its precedent in light of the Supreme Court’s 2006 decision in Brigham City v. Stuart. In Stuart, the Court ruled that “the officer's subjective motivation is irrelevant” to determining whether an entry was justified. Courts need only consider "whether the circumstances, viewed objectively, justify the action" and whether "the manner of the officers' entry was also reasonable."

The Ninth Circuit followed the lead of the Tenth Circuit decision in United States v. Najar, 451 F.3d 710 (10th Cir. 2006) (see Xiphos archives), adopting a two-prong test of whether "considering the totality of the circumstances, law enforcement had an objectively reasonable basis for concluding that there was an immediate need to protect others or themselves from serious harm; and the search's scope and manner were reasonable to meet the need." No longer will the Ninth Circuit consider the officer’s subjective intent in entering. United States v. Snipe, --- F.3d ----, 2008 WL 216996 (9th Cir. 2008).

Curtilage entry discussed in two cases

A theft victim provided information to a deputy that stolen property might be located at Jessen’s home. The deputy drove down a rural dirt road to Jessen’s front gate. The gate was closed by not locked. The property was fenced and marked with “No Trespassing” and “Keep Out” signs. The officer opened the gate and drove up to the house. He saw marijuana growing and obtained a search warrant for Jessen’s property. Though there is an expectation of privacy in the immediate area surrounding a home, known as the “curtilage,” an officer on legitimate police business may lawfully enter the curtilage across an area that is impliedly open. Generally, the access walk or drive is considered to be open to visitors (including officers).

A code enforcement officer was investigating a litter complaint when he saw an unlicensed contractor working on Woodhull’s neighboring home. The officer walked across the property and issued a “stop work” order. A short time later, Woodhull arrived home and the officer issued a citation to him. Woodhull sued the officer for trespass. Woodhull claimed that the property was posted with “No Trespassing” signs, but the officer said that he did not see them.

In Jesson’s case, the court held that "while the 'No Trespassing' signs alone are not sufficient to remove implied consent to the access of the property via the driveway, the closed gate, the primitive road, the secluded location of the home in addition to the posted signs are sufficient.” Thus, the officer could not rely on the open fields doctrine to lawfully view the marijuana that lead to the search warrant and the seizure of the marijuana plants. State v. Jessen, --- P.3d ----, 2008 WL 222717 (Wash. App. 2008). In Woodhull’s case, the court ruled against him and dismissed the suit against the officer. The officer had observed a violation from off the property and had only entered the curtilage to issue the stop work order and stop the violation from continuing. Thus, the officer was justified in entering the property and did not commit trespass. Woodhull v. Town of Riverhead, 849 N.Y.S.2d 79 (N.Y.A.D. 2007).

Hyper-legal driving, ex-wife's DUI tip insufficient combination for valid stop

Bench dropped off his children at his ex-wife’s home. The ex-wife, believing that Bench was impaired, called 911, gave her name, and reported that Bench had driven while drunk. She provided a plate number and description. An officer saw Bench and followed him for 2 blocks. The officer saw that Bench was driving 10 miles an hour under the speed limit, and that he signaled for a full 5 seconds before changing lanes. The officer stopped Bench and ultimately arrested him for DUI.

The appellate court ruled that there was insufficient reasonable suspicion for the stop. The court ruled that the “hyper-legal activity-driving well below the posted speed limit and signaling two seconds longer than legally required before changing lanes” did not create reasonable suspicion for a stop. Other courts have disagreed, particularly with protracted “hyper-legal” driving. State v. Haataja, 611 N.W.2d 353 (Minn. App. 2000) (reasonable suspicion found when car drove slowly for a quarter of a mile and impeded traffic); State v. Ratliff, 728 P.2d 896 (Or. Ct. App.1986), aff'd, 744 P.2d 247 (Or. 1987) (driving at least ten miles per hour below speed limit may be impairment clue and gives basis to stop); Sell v. State, 496 N.E.2d 799 (Ind. Ct. App.1986) (reasonable suspicion found when driver drove fifteen to twenty miles per hour below the speed limit for two to three minutes).

The court also declined to give the citizen informant the presumption of reliability normally extended to tipsters who give their names to authorities. Though the court had previously ruled that an anonymous tipster did not necessarily need to state the basis for believing that a driver was impaired, Kaysville City v. Mulcahy, 943 P.2d 231 (Utah App. 1997), Bench’s wife was suspect because she was his ex-wife and might hold a grudge against Bench. Even though the court acknowledged that there was no evidence of any ill will or improper motive by Bench’s ex-wife, the court ruled that the divorce status defeated the presumption of reliability otherwise extended to a named citizen informant. The lack of detail contained in the tip, coupled with the court’s belief that ill will is the typical result of a divorce, rendered the ex-wife’s tip insufficient to create reasonable suspicion for a stop. Salt Lake City v. Bench, --- P.3d ----, 2008 WL 215415 (Utah App. 2008).

Kazaa open child pornography files constitutes "offer to distribute"

Sewell loaded a number of child pornography images, along with file descriptions, into Kazaa, a popular peer-to-peer file-sharing program. Other Kazaa users could search by file name and description, locate and download Sewell’s image files. Sewell was charged with “offering” to distribute child pornography. The court ruled that merely making described child pornography files available for download, but without any active outreach or advertisement, constituted “offering” to distribute illegal images across state lines. The Eighth Circuit followed the lead of the Tenth Circuit ruling in United States v. Shaffer, 472 F.3d 1219 (10th Cir. 2007). The Tenth Circuit compared an open Kazaa connection to a 24-hour self-serve gas pump where no attendant need be present to pump gas into a customer’s tank. United States v. Sewell, --- F.3d ----, 2008 WL 150704 (8th Cir. 2008).

Per se passenger frisk rule upheld

Owens was a passenger in Thornton’s car. An officer saw Thorton and stopped him for driving with a suspended license. The officer arrested Thorton, searched him, and found a crack pipe. The officer told Owens to get out of the car so that the officer could search it, incident to Thornton’s arrest. The officer asked Owens whether he had any weapons. As the officer began to frisk Owens, Owens pulled money out of his pocket and a bag containing loose marijuana, a joint, and some pills fell from his pocket.

Owens claimed that there was no basis for the frisk. The Kentucky Supreme Court joined several other courts in adopting an automatic companion frisk rule. The court stated the rule as “all companions of [a person arrested for illegal drug violations] within the immediate vicinity, capable of accomplishing a harmful assault on the officer, are constitutionally subjected to the cursory ‘pat-down’ reasonably necessary to give assurance that they are unarmed.” The court cited the “indisputable nexus between drugs and guns” as supporting a reasonable belief of potential danger to the arresting officer. Other courts have similarly defined the rule and have applied it when a co-occupant of a vehicle or person in the immediate vicinity, clearly affiliated with the arrestee, is arrested and not merely detained or cited. United States v. Berryhill, 445 F.2d 1189 (9th Cir. 1971) (all companions of a mail fraud “arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer, are constitutionally subjected” to a weapons frisk); Perry v. State, 927 P.2d 1158 (Wyo. 1996); State v. Clevidence, 736 P.2d 379 (Ariz. App. 1987) (“the right to a limited search for weapons extends to a suspected criminal's companions at the time of arrest”); People v. Myers, 616 N.E.2d 633 (III. App. 1993) (“while a police officer may not search a person merely because he is with someone who has been arrested, the officer may conduct a pat-down of the arrested person's companions to protect himself or others”); State v. Moncrief, 431 N.E.2d 336 (Ohio App. 1980); Lewis v. United States, 399 A.2d 559 (D.C.1979). While many state and federal courts have not considered the doctrine, the Eighth Circuit court of Appeals, as well as Alaska and Minnesota have expressly rejected the companion frisk rule and applied a totality-of-circumstances analysis. United States v. Flett, 806 F.2d 823 (8th Cir. 1986); State v. Eggersgluess, 483 N.W.2d 94 (Minn.App. 1992). Owens v. Commonwealth, --- S.W.3d ----, 2008 WL 199819 (Ky. 2008).

Third party consent to search upheld

Officers went to Glenn’s residence and arrested him on a robbery warrant. After arresting him, the officers learned that the home belonged to Glenn’s grandfather. Though the grandfather could not speak, due to a stroke, he nodded affirmatively when the officers asked for consent to search the home. Glenn was held at the home during the search. Glenn identified one of the bedrooms as his. Officers went onto the next bedroom. Glenn said that he sometimes slept in that bedroom. An officer opened a backpack that had no external identification markings. He found the robbery victim’s cell phone and Glenn’s identification in the backpack. Glenn challenged the search.

The court ruled that the grandfather had apparent authority to grant consent to search the backpack. There were no identification markings, and Glenn did not claim that the backpack was his. Thus, an officer could reasonably conclude that the grandfather had authority over the backpack. The court also noted that “Glenn could have objected to the search of either of the bedrooms, but failed to do so even though he was in conversation with the police officers before and during the search. In fact, it was Glenn who directed the police to the bedroom in which the backpack was located, but without any hint of an objection to its being searched.” In Illinois v. Rodriguez, 497 U.S. 177 (1990), the Supreme Court held that a third party's (i.e. grandfather) lack of actual authority to consent to a search will not invalidate the search as long as officers could reasonably conclude that the third party had the right to joint use of, or joint access or control over, the premises or items searched. Glenn v. Commonwealth, --- S.E.2d ----, 2008 WL 108997 (Va. 2008).

Warrant search extending beyond 10 days upheld

Grenning raped a 5 year-old neighbor boy, and committed other sex acts on the boy and photographed him. He distributed his photographs across the world. A detective obtained a search warrant for Grenning’s computer. Washington, like many states, has a rule of criminal procedure requiring that a search warrant be executed within 10 days. Though the detective searched Grenning’s home and seized his computer within the 10 day period, the forensic examination took much longer. Grenning challenged the search, claiming a violation of the 10 day rule. The court upheld the search, reasoning that the search began with the execution of the warrant. Though the rule required that the search be conducted within 10 days of issuance of the warrant, it was sufficient to begin the search within the 10 days, and as long the probable cause to search lasted beyond the 10 days. Because the probable cause was not affected by the delay, the search complied with the rule. The court also noted that a delayed or prolonged search met Fourth Amendment requirements as long as the delay was reasonable. The necessity and complexity of the forensic examination made the delay reasonable. The court upheld Grenning’s 117 year sentence. State v. Grenning, --- P.3d ----, 2008 WL 73403 (Wash. App. 2008).

"Morphed" child pornography conviction overturned

Zidel, a youth camp counselor, gave a coworker a CD with images showing childrens’ faces morphed onto the bodies of adults engaged in a variety of sex acts. The coworker recognized some of the faces as those of minors who had attended the youth camp in a previous summer. Zidel was charged with possession of child pornography. The New Hampshire Supreme Court overturned his conviction. The U.S. Supreme Court has held that laws regulating “speech” based on the content of the speech (or images) must be narrowly tailored to serve “compelling state interests.” New York v. Ferber, 458 U.S. 747 (1982); Osborne v. Ohio, 495 U.S. 103 (1990). Following that rule, federal courts have determined that child pornography may be banned because a child is harmed in the creation of the pornography and a child is harmed when the pornography is subsequently distributed. However, in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the Supreme Court invalidated a federal law banning images that "appeared" to portray a minor engaged in sexual activity, or that was advertised or promoted as depicting a minor engaged in sex. The New Hampshire court reasoned that Zidel had not harmed any actual children in manufacturing the morphed child pornography. The court stated that the harm that might come through distribution was contingent “upon the occurrence of another arguably unlawful act," such as distribution of the morphed pornography (but hadn’t he “distributed” it by giving the images to a friend?). The court failed to address the harm that could come to the actual children whose faces were cleverly morphed onto adult bodies engaged in graphic and explicit sex acts. State v. Zidel, --- A.2d ----, 2008 WL 160967 (N.H. 2008).

Jail inmate not "in custody" in murder interrogation

Saleh was serving a jail sentence for assaulting his son-in-law. Prior to Saleh’s incarceration, Saleh’s ex-wife was murdered. A detective investigating the murder turned his attention to Saleh and went interview Saleh in the jail. Saleh invoked his right to counsel. A day after the attempted interview, Saleh placed a collect call to the detective. Though he denied killing his ex-wife, Saleh made statements later used to convict him of the murder. After his conviction, Saleh filed a habeas corpus petition, alleging that he was subjected to custodial interrogation during the phone interview.

The court of appeals rejected his claim. Though Saleh was “in custody” because he was incarcerated, he was not “in custody” for purposes of Miranda analysis. Not only did he place the call, but he was free to hang up at any time. The court noted that an incarcerated person is considered to be “in custody” for Miranda purposes when an additional restriction is placed on the inmate’s liberty in order to conduct the interrogation. Investigators who wish to interrogate inmates about new crimes should be careful to conduct the interrogation in a place and at a time that does not further restrict the inmate’s liberty. Generally, prison or jail officers are well-suited to assist in setting up proper circumstances. Saleh v. Fleming, --- F.3d ----, 2008 WL 43719 (9th Cir. 2008).

Person leaving home where search warrant was about to be served may be stopped and detained

Officers were watching Rochon’s home in preparation for an imminent search warrant execution. Rochon drove away from the home and an officer stopped him for a seat belt violation. The officer asked Rochon about his address and Rochon lied. The officer detained Rochon as other officer entered his home and searched. Rochon made incriminating statements during this detention. Officers found a substantial quantity of methamphetamine, marijuana and cash in the home. Rochon was brought back to the home, where he supplied the combination to a safe. Rochon claimed that his statements should be suppressed because the detention was unreasonably long in relation to the seatbelt violation.

The appellate court ruled that Rochon’s detention was lawful, irrespective of the basis for the stop. The court relied on Michigan v. Summers, 452 U.S. 692 (1981), where officers stopped and detained Summers as he walked down the steps of a house about to be searched pursuant to a search warrant. The Supreme Court found that the detention was lawful. In Summers, the Court recognized that certain seizures are so minimally intrusive upon the rights of an individual and at the same time so necessary to achieve substantial law enforcement interests that they may be made on something less than probable cause. Some courts have interpreted Summers to not allow a search of persons who drive away from the target home and are no longer in a position to see and obstruct execution of the warrant. Other courts have held that the Summers rule does not do not cease to apply once occupants move beyond their property lines. Because Rochon was detained prior to the completion of the search, was brought back to the residence for part of the search, and thus was in a position to facilitate its orderly completion, the detention was reasonably related to the public safety interest in orderly execution of the warrant and was lawful. Rochon v. State, --- P.3d ----, 2008 WL 73632 (Okla. Crim. App. 2008).