Xiphos (ξίφος, pronounced zee-phose) is a biweekly summary of recent court decisions about criminal procedure and other subjects important to street cops and administrators. The xiphos is a short double-edged sword used essentially as a backup weapon by ancient Greek warriors. This service is provided at no cost for America's tremendous public safety professionals. To subscribe, send a message to Xiphos-subscribe@KenWallentine.com. While you're on the web, please visit www.UtahsFallen.org and consider how you can help remember fallen officers.
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).
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).
