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NYPD breath test for OIS rule upheld
Following the November 2006 shooting of Sean Bell by NYPD officers, the NYPD Commissioner ordered that a “portable breathalyzer test” be administered to an officer who fires a weapon. If the portable breathalyzer test yields a reading of blood-alcohol level of 0.08 or greater, the officer will be given a second test on an Intoxilyzer. The NYPD Patrolmen’s Benefit Association sued the NYPD, arguing that the policy violated officers’ Fourth Amendment rights. The City claimed that the primary purpose of the test was not to obtain evidence for criminal charges. Instead, according to City lawyers, the testing helped bolster public confidence in the police department and to facilitate administrative review of shootings.
In Indianapolis v. Edmond, 531 U.S. 32 (2000), the Supreme Court held that a program or general scheme of searches may be considered under the special needs doctrine if the program's “primary purpose” is not a “general interest in crime control.” The court of appeals determined that the NYPD breath testing rule is “designed to serve special needs, beyond the normal need for law enforcement,” and is therefore constitutional under the special needs doctrine. The court recognized that the breath test might be critical to a criminal prosecution, holding, however, that a search can qualify under the special needs doctrine even if one of its purposes is for law enforcement, as long as that is not its primary purpose. Once the court found that the special needs doctrine applied, the court was then required to conduct a balancing-of-interests test to determine whether the breath testing is reasonable. The court recognized that the “nature of the privacy interest involved” turns in favor of the City. Police officers do have a limited expectation of privacy in matters of carrying and using firearms. Therefore, the rule was constitutional. Lynch v. New York City, 589 F.3d 94 (2nd Cir. 2009).
Anonymous tip justified stop and search when officer spoke face-to-face with tipster
An anonymous hotel guest called police and stated that a man in the parking lot had a gun. The hotel was in a high crime area where illegal guns had been found on prior calls. An officer went to the room from which the call originated and spoke with an occupant. As the occupant was speaking to the officer, the occupant pointed to a car in the parking lot and identified the driver as the man with the gun. Another officer stopped the car based on this information. The driver (Griffin) began to turn and act as if he intended to run. The officer frisked Griffin and searched the car and found a gun. Griffin was charged with being a felon in possession of a handgun. Griffin claimed that there was insufficient reasonable suspicion for the investigative detention and for the protective search. He argued that the police were acting on anonymous information.
Courts have wrestled with officers may do when the informant is anonymous. In Florida v. J.L., 529 U.S. 266 (2000), the Supreme Court struck down a stop based on an anonymous tip that a juvenile was standing at a bus stop and was concealing a gun. In this case, the court of appeals upheld the stop and the protective search. The court distinguished the anonymous informant in this case by noting that the information was given face to face. The officer could assess the informant’s credibility and could likely track the informant down in the future. The court also relied on the fact that others saw the police enter the hotel and could likely identify the informer and retaliate and Griffin’s evasive behavior when first contacted by the officer. United States v. Griffin, 589 F.3d 148 (4th Cir. 2009).
Gant decision can't bar gun seen in plain view of passenger compartment
In Arizona v. Gant, the Supreme Court narrowed the circumstances justifying a search incident to arrest of a vehicle occupant. A search of a vehicle incident to a recent occupant's arrest is justified “only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search” or when “it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” In the months following the Gant decision, courts have wrestled with its parameters. One of the main questions has been whether to apply the Gant holding to cases already charged at the time of the decision.
An officer stopped Rumley for a taillight violation. Rumley told the officer that he had a suspended license. When the officer learned that Rumley had two prior convictions for driving on a suspended license, he arrested him and place him in the patrol car. The officer went back to Rumley’s truck to conduct a search incident to arrest. Before the officer began the search, he ordered the passenger to step out. The Supreme Court, in Maryland v. Wilson, 519 U.S. 408 (1997), held that an officer conducting a lawful traffic stop may, as a safety measure, order any passenger to exit the vehicle as a matter of course. As the passenger moved his leg to get out, the officer saw a handgun. The officer seized the gun and searched the truck. The officer gave a Miranda warning to Rumley. Rumley admitted that it was his gun and that he put it on the floor when the officer stopped him. Rumley was charged with being a felon in possession of a firearm.
Rumley claimed that the Gant decision rendered the search of his truck unconstitutional. Unlike the facts in Gant, where there was only one occupant, once Rumley was arrested and secured, the truck was still occupied by someone who could easily access the weapon to hide it or use it. The court of appeals held that the search should be evaluated by objectively assessing the reasonableness of the officer’s actions, and not the subjective reason that the officer had for searching the passenger compartment. The court then considered the officer’s order to the passenger to get out of the car. “Nothing in Gant, which limits permissible searches incident to arrest, undermines the bright-line rule established in Wilson” allowing officers to order the vehicle occupants out, even if there is no particular basis to believe that the occupants present a danger to the officer. Once the passenger moved his leg, the gun was in plain view. Under the plain-view doctrine, an officer may, without a warrant, seize “incriminating evidence when (1) the officer is lawfully in a place from which the object may be plainly viewed; (2) the officer has a lawful right of access to the object itself; and (3) the object's incriminating character is immediately apparent.” Horton v. California, 496 U.S. 128 (1990). Thus, the officer’s seizure of the gun in plain view was proper, and it preceded any search incident to arrest. United States v. Rumley, 588 F.3d 202 (4th Cir. 2009).
Ninth Circuit limits TASER® deployment
Bryan was stopped, for the second time in an hour, while driving on a Southern California freeway. During the second stop, based on a seatbelt violation, Bryan got out of the car, wearing only boxer shorts and tennis shoes, and became highly agitated. The officer told Bryan to get back in the car. Bryan was striking himself and yelling unintelligibly when he took a step toward the officer (Bryan later denied advancing toward the officer). The officer deployed a TASER®. It appears that Bryan was facing away from the officer when the darts struck him. One of the probes became deeply embedded in Byran's thigh, ultimately requiring removal by a doctor. Bryan fell and broke four teeth and suffered minor contusions. The officer believed that Bryan was mentally disturbed and needed to be secured. The appellate court accepted Bryan's claim that he did not advance on the officer.
All use of force lawsuits are measured by standards established by the Supreme Court in Graham v. Connor, 490 U.S. 386 (1989). In the Graham case, the Court instructed lower courts to always ask three questions to measure the constitutionality of a particular use of force. First, what was the severity of the crime that the officer believed the suspect to have committed or to be committing? Second, did the suspect present an immediate threat to the safety of officers or the public? Third, was the suspect actively resisting arrest or attempting to escape? The Supreme Court also stated that the use of force should be measured by what the officer knew at the scene. The Ninth Circuit applied the Graham factors and upheld the trial court's determination that Bryan "did not pose an immediate threat to Officer McPherson or bystanders despite his unusual behavior." The severity of the offense under investigation tilted toward the bottom of the scale: a seatbelt violation. The court accepted that Bryan could pose a threat to the officer. "Bryan’s volatile, erratic conduct could lead an officer to be wary." Applying the totality of the circumstances analysis dictated by Graham, the court held that the officer's use of force was not objectively reasonable.
The court used language that suggests that the Ninth Circuit standard for deployment of a TASER now requires "a strong government interest compelling the employment of such force." Lawful deployment of a TASER or similar device in the Ninth Circuit requires "objective facts must indicate that the suspect poses an immediate threat to the officer or a member of the public." Many TASER instructors have long been urging officers to be very cautious in deploying a TASER in circumstances that can fairly be described as "passive non-compliance."
Though reaction to the Bryan case was swift and strong, even headlining in some western newspapers, officers should not overreact to this decision. First, as noted above, use of force instructors are once again emphasizing the power of persuasion (remember the old "verbal judo" courses?) combined with patience to resolve a situation. Remember, talk nice, think mean. Second, the decision's immediate and direct application is limited to states within the Ninth Circuit. Third, each use of force case is unique, and any use of force by any officer will always be measured in light of the unique circumstances and against established law. Bryan v. McPherson, --- F.3d ----, 2009 WL 5064477 (9th Cir. 2009).
Violence in home creates exigent circumstances for warrantless home entry
Neighbors called police to a home where Fisher was "going crazy." As the officers approached the home they saw a truck with front-end damage and blood on the hood, damaged fence posts (suggesting that the truck had recently been driven over the fence, blood on the house door and several of the home's windows broken out. The officers could see Fisher through a window. He was screaming and throwing things. The back door was bolted and the front door was barricaded with a couch. The officers saw that Fisher's hand was bleeding and asked whether he wanted medical help. Fisher cursed at the officers and told them to get a warrant to enter. One of the officers started to force the front door, but backed away when Fisher pointed a gun at him.
After Fisher was charged with assaulting the officer, a Michigan court held that the officer violated the Fourth Amendment by entering without a warrant. The Michigan court was concerned that the minimal amount of blood observed by the officers could not reasonably suggest that someone had serious injuries. The US Supreme Court applied its precedent in Brigham City v. Stuart, 547 U.S. 398 (2004) (argued and won by Utah Assistant Attorney General Jeff Gray) to easily find that the lower court got it wrong. Reading the facts recited above, most any law enforcement officer would conclude that there were exigent circumstances to enter, secure Fisher and investigate possible, indeed probable, threats to public safety. In the Brigham City case, the Court held that "the need to assist persons who are seriously injured or threatened with such injury" created a valid reason for officers to enter a home without a warrant. In Michigan v. Fisher, the Court clarified that "officers do not need ironclad proof of 'a likely serious, life-threatening' 'injury to invoke the emergency aid exception." The Court held that "it sufficed to invoke the emergency aid exception that it was reasonable to believe that Fisher had hurt himself (albeit nonfatally) and needed treatment that in his rage he was unable to provide, or that Fisher was about to hurt, or had already hurt, someone else. The Michigan Court of Appeals required more than what the Fourth Amendment demands." Michigan v. Fisher, 130 S.Ct. 546 (2009).
Though Michigan v. Fisher and Brigham City v. Stuart combined offer a solid basis for a warrantless entry when an officer has a reasonable belief that there is violence unfolding in the home, or an injured person needs emergency assistance, officers should remember that the Court's generous standard in these two case is premised on the need to provide aid. To make a warrantless entry into a home for some other reason, such as the preservation of evidence or to search for a fleeing suspect, must be analyzed under a different standard. If public safety or officers' safety is threatened, officers may enter a home or other building and conduct whatever search is necessary to quell the threat. Warden v. Hayden, 387 U.S. 294 (1967). There are four general categories of exigent circumstances that justify warrantless entries: first, hot pursuit of a fleeing felon; second, imminent destruction of evidence; third, the need to prevent a suspect's escape; and fourth, a risk of danger to the police or the public. United States v. Zogmaister, 90 Fed. Appx. 325 (10th Cir. 2004); United States v. Williams, 354 F.3d 497 (6th Cir. 2003); United States v. Standridge, 810 F.2d 1034 (11th Cir. 1987), cert. denied, 481 U.S. 1072 (1987). If the exigent circumstances do not merit a full search, the property may be temporarily secured for as long as is reasonably necessary to obtain a warrant. Segura v. United States, 468 U.S. 796 (1984). There is no exception to the Fourth Amendment rules for murder scenes or crime scenes for other serious crimes. Flippo v. West Virginia, 528 U.S. 11 (1999). The exigent circumstances search exception is very carefully applied by courts because no probable cause determination is required.
A non-criminal traffic offense, where the officer is not in immediate pursuit of the suspect, is not sufficiently exigent to allow warrantless entry to arrest. Welsh v. Wisconsin, 466 U.S. 740 (1984). Exigency to enter to arrest may include probable cause to believe that destruction of evidence may be imminent; the need to prevent a suspect's escape; or the need to protect persons inside the home into which the suspect has fled—all considered in light of the "risk of danger, the gravity of the crime and the likelihood that the suspect is armed." Minnesota v. Olson, 495 U.S. 91 (1990). In the Olson case, the Court ruled that there was not sufficient exigency to enter a home to arrest when, in the course of investigating a murder, the suspect sought was not believed to be the killer, the murder weapon was in police possession, the home was surrounded by numerous officers, there was no avenue of escape, the time of day was 3:00 p.m., and there was no suggestion that the home’s occupants were endangered by the suspect. This case illustrates how strictly courts limit the application of the exigent circumstances basis to enter a third party's home to make an arrest. Closely related to exigent circumstances is the doctrine of hot pursuit. The hot pursuit exception to the warrant requirement states that a suspect may not defeat a proper arrest simply by getting home one or two steps ahead of pursuing police. United States v. Santana, 427 U.S. 38 (1976). "Hot pursuit" implies an immediate pursuit of a suspect fleeing from officers. Hot pursuit may justify warrantless entry to arrest for both felonies and misdemeanors. United States v. Williams, 354 F.3d 497 (6th Cir. 2003) ("hot pursuit of a fleeing felon" as an exigency exception to the warrant requirement); Middletown v. Flinchum, 765 N.E.2d 330 (Ohio 2002) (officers in hot pursuit of a suspect who flees to a house in order to avoid arrest "may enter without a warrant, regardless of whether the offense for which the suspect is being arrested is a misdemeanor").
No expectation of privacy in storage unit rented with stolen identity
An officer saw Johnson make an illegal turn, ran the plate, and discovered that there were 2 warrants for Johnson’s arrest. The officer stopped Johnson. Christensen, Johnson’s girlfriend, was in the front passenger seat and two other persons were in the rear. There was also an arrest warrant for Christensen. During a search of the car incident to arrest, the officer found drug paraphernalia in the console and a glass meth pipe in a purse. The purse contained Christensen’s identification and other identification in another name, but with Christensen's photo, and a storage unit rental agreement in dated the previous day. Christensen waived her Miranda rights, and told officers inconsistent stories about how she obtained the identification in another name. The other name was on the storage unit contract.
The officer learned that Christensen’s other identity documents were stolen in a burglary several months prior. The officer contacted the victim, asked her to accompany him to the storage unit, and confirmed that she had not rented the storage unit. The unit manager opened the storage unit and the officer searched it. He found a rifle and a shotgun. During an interview in jail, Johnson admitted that he asked Christensen to rent the storage unit and that he owned the guns. Johnson was charged with illegally possessing the guns. Some courts have held that a person does have an expectation of privacy in premises rented under an alias. Here, however, Christensen didn’t merely use an alias. "Stolen identification was clearly involved. And because of the potential harm to innocent third parties, there is a fundamental difference between merely using an alias to receive a package and using another's identity." Courts usually hold that the is no expectation of privacy in motel rooms rented with a stolen identity and/or credit card.
Johnson argued that he had an expectation of privacy in spite of the fact that Christensen rented the unit; he admitted that he knew that she used a fraudulent identity for the rental. The court held that he could not have an expectation of privacy arising from the use of the fraudulent identity. The court also noted potential harm to the burglary victim. Had Christensen not paid rent for the unit, the storage unit company would have sought payment from the identity theft victim. Moreover, Christensen’s use of the identity violated Utah's identity fraud statute, barring the use of someone else's identification to obtain a thing of value. Because of the fraud involved, the court held that Johnson could not legitimately hold a privacy expectation in the storage unit. "Ultimately, what matters is not whether Johnson might have some legitimate property interest in the storage unit but whether Johnson's interest is one that the Fourth Amendment is intended to protect." United States v. Johnson, --- F.3d ----, 2009 WL 3429765 (10th Cir. 2009).
MySpace page used to support conviction
Clark was babysitting his girlfriend’s 2 year-old daughter. The girlfriend came home and found Clark lying down with the child on his chest, naked and blue. There was blood on a blanket covering up Clark. Clark got up and dropped the baby on the ground. The girlfriend tried to call 911 but Clark told her to put the phone down and that the child was "brain dead." He lit a cigarette and turned on the television. He grabbed the phone out of his girlfriend’s hand when she tried again to call 911. When she managed to dial 911 and ask the operator for help, Clark struck her in the back of the head with his fist. A sheriff's deputy who arrived tried to revive the child. The deputy noticed that the child had a split lip, was limp, her jaw was crushed, and she had bruises all over her body.
At his trial for murdering the child, Clark admitted that he was reckless, but claimed that he did not intend to kill the child. As rebuttal evidence, the prosecutor presented a MySpace page entry where Clark wrote: "Society labels me as an outlaw and criminal and sees more and more everyday how many of the people, while growing up, and those who judge me, are dishonest and dishonorable. Note, in one aspect I'm glad to say I have helped you people in my past who have done something and achieved on the other hand, I'm sad to see so many people who have nowhere. To those people I say, if I can do it and get away. Bull sh$% And with all my obstacles, why the f*#k can't you." Clark objected, claiming that the introduction of his MySpace entry was an attempt to improperly introduce evidence of bad acts offered to show propensity to commit the charged crime.
The Indiana Supreme Court disagreed. The court also held that the MySpace pages was "more probative than unfairly prejudicial." Once Clark tried to defend himself by claiming that he was drunk and merely reckless when he killed the child, the state could properly confront him with his MySpace boasting about what he could get away with. This is yet another in a series of cases in the past few years where social networking site entries have been used as evidence in criminal trials, employment discipline and hiring decisions. Officers should take note to be careful about social networking site entries, and also to research such sites in criminal investigations. Clark v. State, 915 N.E.2d 126 (Ind. 2009).
Directing driver to a state garage for a drug dog sniff did not create de facto arrest
A trooper stopped White for an unsafe lane change. White and his passenger were unusually nervous. The trooper recited several specific and detailed behaviors establishing extraordinary nervousness. Courts are very cautious in relying on nervousness as a factor in the reasonable suspicion calculation. White gave the trooper an Indiana driver's license and a rental agreement for the car. White trold the trooper that he and and the passenger had been to Las Vegas for a few days and were returning home to Indianapolis. The rental contract showed that the car had been rented in Vegas on the previous day and was to scheduled to be returned on the following day. White said that he had flown to Las Vegas, stayed for 4 days, and that he had to be at work the next day. He intended to return the rental car to Las Vegas on the following day (a day late). The trooper checked White’s record and found that he had two prior drug trafficking arrests. Based on the extraordinary nervousness, bizarre travel plans and prior history, Las Vegas being a source city and Indianapolis being a distribution hub city, the trooper called for a drug detector dog team.
The trooper determined that he would detain White. Nonetheless, in a tactic referred to by the court as "the old highway patrol "two-step" in an attempt to get White to consent to questioning and a search of the vehicle, the trooper gave White his driver's license and the rental car agreement and gave White a parting greeting. As White began to leave, the trooper asked White whether he would answer some additional questions. White did not consent, and the trooper ordered White to remain and told him that he was calling for a drug dog. The trooper learned that the detector dog team was still some distance away and that the sniff would be expedited by moving to a state garage down the road. The trooper told White to follow him to a state facility 9 miles away. The trooper told White that he would be free to leave once the dog sniff was accomplished if the sniff dispelled the trooper’s suspicions.
The detector dog team arrived and the dog sniffed the exterior of White's car, giving a final response to the odor of controlled substances. The trooper searched White's car and located three bundles of marijuana in the trunk. The entire episode, from the initial traffic stop to the drug discovery, lasted between twenty and thirty-five minutes. The trooper had the car towed to another location for a more detailed search and the trooper found 4 "kilo-size" bundles of cocaine under the hood.
White challenged the additional detention and the relocation to the state garage, arguing that he had been subjected to a de facto arrest. An arrest can be unintentionally transformed from investigative detention to an arrest (requiring probable cause) when the detention becomes highly intrusive by the use or display of firearms, handcuffs, and other forceful techniques that generally exceed the scope of an investigative detention and/or when the detention lasts too long under the specific circumstances of a given case.
Following the Supreme Court decision in Muehler v. Mena, some courts, including the Tenth Circuit Court of Appeals, have approved brief extensions of traffic detentions to ask a few questions about drug trafficking. See United States v. Valenzuela, 494 F.3d 886 (10th Cir. 2007), reported in the Xiphos archives. The court noted that its previous decisions have approved substantial waits for the arrival of a drug dog. In this case, White’s overall wait period was shortened by moving to the state garage for the sniff, essentially a move to meet the dog team halfway. The court observed that the only reason for moving to the garage was for White’s convenience and the trooper had so informed White. This did not, according to the court, amount to a "highly intrusive" detention and did not create a de facto arrest.
The technique of returning a driver’s documents and ending the traffic detention, then attempting to create a voluntary encounter for further questioning about drug trafficking is the subject of some controversy among prosecutors. Some believe that an officer should simply progress to an investigation of drug trafficking if there is reasonable suspicion to do so. They argue that telling the driver that he or she is free to leave creates a potential argument that the officer lacked reasonable suspicion for a further detention. Others believe that this technique can take away a defendant’s suppression claim by establishing that the encounter was truly voluntary. Practically, courts seem not to rely too much on the latter theory. A court will still analyze the detention for reasonable suspicion. In this case, however, the court relied on the return of the driver licence and rental contract to distinguish between an investigative detention and an arrest. "While this may seem like a minor detail, it bolsters the conclusion that White would be free to go on his way after the canine investigation, if the dog sniff dispelled the officer's reasonable suspicions." Moreover, the trooper directed White to a department of transportation garage and not a police station, further suggesting that no arrest occurred. United States v. White, 584 F.3d 935 (10th Cir. 2009).
Court suppresses response to booking question about drug use
Denney was arrested for shoplifting. She was arrested and she invoked her right to remain silent when questioned by the arresting officer. As a routine part of the booking process, the correctional officer asked questions about drug use. Denney admitted to taking morphine earlier in the day. The arresting officer overheard Denney’s admission and charged her with drug possession. Denney claimed that the admission of her booking responses violated her Miranda rights. The court sided with Denney, noting that “a legitimate question, asked with good intentions, will still violate a defendant's Miranda rights if it is reasonably likely to produce an incriminating response.” The court held that “regardless of their routine nature, the questions in this case were reasonably likely to produce an incriminating response.” However, the booking officer had no reason to believe that Denney had used drugs and was asking the question as part of a routine designed to promote the arrestee’s health and safety while jailed. Thus, it is hard to see how the response to any question about drug or alcohol use could ever be admissible in court under this ruling.
This ruling is generally more restrictive that most other courts. However, the Ninth Circuit has also narrowly interpreted the routine booking question exception to the Miranda rule. The Supreme Court has held that booking questions “normally attendant to arrest and custody” are not subject to a Miranda analysis and are the arrestee’s responses are generally admissible. Rhode Island v. Innis, 446 U.S. 291 (1980). Most courts hold that answers about drug and alcohol use and consumption, when asked for health and welfare reasons and not to elicit incriminating information, are admissible. See Merritt v. State, 653 S.E.2d 368 (Ga. App.2007) (responses to questions about alcohol consumption were admissible at trial). For now, Washington officers will be operating under a more restrictive rule. State v. Denney, --- P.3d ----, 2009 WL 3359965 (Wash. App. 2009).
Inventory of locked bank bag, believed to contain a weapon, was invalid
An officer spotted Vanya V., a juvenile, on school premises late at night. The officer spoke to Vanya, intending only to take him home to his parents. The officer told Vanya that he was going to frisk him, but not handcuff him, before placing him in the car. The officer felt a hard object under Vanya’s shirt and believed that it was a weapon. Vanya flailed about and hit the officer. The officer arrested him and retrieved a locked, zippered bank bag from Vanya’s waistline. At the station, in the course of a search justified by the department’s inventory policy, the officer cut open the bar and found a digital scale, a plastic bag containing twelve smaller plastic baggies, each containing marijuana, a plastic bag containing two buds of marijuana, some empty plastic baggies, and cash. The agency inventory policy required for the inspection of “any closed container or article found on the arrestee's person.” Vanya asked to suppress the evidence from the bank bag, arguing that the inventory policy did not specifically address opening locked containers. The court agree with Vanya, holding that, “First, the policy did not spell out what to do with locked containers as opposed to those that are simply closed. As a subset of this, the policy also did not spell out what should be done with a locked container for which the officers have the key and a locked container for which they do not.”
Police may conduct inventories of seized property. Colorado v. Bertine, 479 U.S. 367 (1987). The justification for inventories rest on three needs: “the protection of the owner’s property while it remains in police custody; the protection of the police against claims or disputes over lost or stolen property; and the protection of the police from potential danger.” South Dakota v. Opperman, 428 U.S. 364 (1976). An inventory may not be used as a ruse to search for evidence. The inventory must be conducted in accordance with a standard policy. Florida v. Wells, 495 U.S. 1 (1990). In this case, the court also noted that, “permitting an officer to destroy or break into a locked container runs counter to the very purpose of the inventory exception.” That may or may not address the other accepted purposes of an inventory, but the policy still fell short of the specificity required by the court. The court did not discuss the alternative justification for the search. If the officer had searched the bank bag at the scene of the arrest, the search would likely have been justified as a search incident to arrest. Commonwealth v. Vanya V., 914 N.E.2d 339 (Mass. App. 2009).
Family fight justified emergency warrantless entry
Officers responded to a family fight. The caller did not say how many persons were fighting or whether there were weapons, but did say, “his brother was getting beat up.” When the officers they heard loud shouting and what sounded like a person being thrown against the wall or window. The officers knocked on the front door. After a few minutes, someone opened the door and released two large, threatening dogs. The person refused to come out or recall the dogs. Taylor came out of the house a few minutes later. When police asked him how many other persons were in the house, he told them, “you should find out for yourselves.” The other person also refused to answer questions about other occupants. Believing that their safety and the safety of others was at risk, the officers entered and conducted a protective sweep. They saw illegal drugs and paraphernalia in the open and arrested Taylor. Taylor challenged the entry to his home as an illegal search, claiming that the officers should have waited and obtained a warrant. The court of appeals held that, “this argument, however, is misguided, as it ignores the purpose of the exigent circumstances exception to the warrant requirement.” The evidence of illegal drug possession was admissible because it fit the three factors of the plain view doctrine: “(1) lawful presence of the officer; (2) evidence in plain view; and (3) evidence that is clearly incriminating”). Thus, Taylor’s conviction was upheld. Spanish Fork City v. Taylor, 2009 WL 3223277 (Utah App. 2009).
Dog sniff justifies search of car, but not search of occupants
An officer stopped a car with 4 occupants for a traffic violation. Whitehead was the right rear passenger. Another officer arrived with a certified drug detector dog. As the first officer was dealing with the traffic stop, the K9 officer directed his dog to sniff the exterior of the car. The dog gave a positive final response, indicating that he had detected the odors of illegal drugs. Based on this, the officers told the car occupants that they would search the car. The officers directed the occupants to get out of the car. They searched the car and found no illegal drugs or paraphernalia. The officers then searched the occupants and found two loaded syringes and a beer bottle cap with burnt residue in Whitehead’s pockets. The residue later tested positive for heroin. The trial court and the court of appeals each ruled that there was probable cause, through the process of elimination, to search Whitehead. The courts reasoned that the positive final response by a trained and certified drug detection dog provided probable cause to believe that illegal drugs were in the car. Because the officers carefully searched the car and found no drugs, they then had probable cause to believe that the occupants were concealing illegal drugs. The Virginia Supreme Court reversed. “The positive alert by [the dog] and the subsequent fruitless searches of the vehicle and three of its occupants may have created a strong suspicion that contraband was present on Whitehead's person; however, probable cause requires more than a strong suspicion.” There could have been other explanations for the dog’s positive final response, such as a lingering odor from prior drug use in the car. “While the fruitless searches of the vehicle and the other occupants increased the likelihood that the contraband detected by Xanto was on Whitehead's person, it also increased the likelihood that the dog alerted to the odor of contraband no longer present in the vehicle.” A finding of probable cause does not require elimination of all possible innocent explanations for the facts that establish probable cause. However, in this case the court held that the process of elimination theory was just too thin to pass from reasonable suspicion to probable cause.
Some other courts have found that similar circumstances did create probable cause. In those cases, there has been some indication, however slight, that the person searched was implicated in criminal activity. There was no such indication in this case. “The Commonwealth presented no evidence, other than Whitehead's status as a passenger in the vehicle, indicating that Whitehead and the other passengers were involved in any common enterprise involving criminal activity. There also was no evidence indicating Whitehead individually was committing, had committed, or was about to commit a criminal offense.” In State v. Voichahoske, 709 N.W.2d 659, 671 (Neb. 2006), the court upheld a search of a passenger who had a suspicious bulge in his clothing and who had obviously lied about his connection to the other persons in the car. A search yielded paraphernalia in a sock and a bag of methamphetamine in the rectum. In United States v. Anchondo, 156 F.3d 1043 (10th Cir. 1998), the court held that a positive final response by a trained drug dog conducting a vehicle sniff provides probable cause to arrest driver and that, by the process of elimination, the fruitless search of the car makes it more likely that the illegal drugs are hidden on bodies of driver and passenger. Anchondo was a case involving a search near the border and a can-do defense lawyer would certainly argue this distinction.
In Maryland v. Pringle, 540 U.S. 366 (2003), the United States Supreme Court the court considered a case where an officer searched a car and found cocaine in the rear seat armrest, easily within reaching distance of all three occupants. The officer also found a roll of cash in the glove box. Each occupant denied knowledge of the drugs. The officer arrested all three. Considering the small space of the car and that fact that the amount of drugs and cash supported an inference that all three occupants were engaged in a common criminal enterprise, the Court held: “We think it an entirely reasonable inference from these facts that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine. Thus, a reasonable officer could conclude that there was probable cause to believe Pringle committed the crime of possession of cocaine, either solely or jointly.” Relying on the Court’s decision in Pringle, the Maryland Court of Special Appeals found a search similar to Whitehead’s case to be lawful. In State v. Ofori, 906 A.2d 1089 (Md. App. 2006), the court held that “because of the close association between contraband in a vehicle and the driver of (or other passenger in) the vehicle, either finding the drugs in the vehicle, as in Pringle, or probable cause to believe that they are in the vehicle, as in this case, necessarily implicates the driver and passengers.” When faced with a situation where a trained dog provides a positive final response to the vehicle and no drugs are found, an officer should carefully consider what additional facts provide a basis to believe that the individual occupants are engaged in criminal activity. Whitehead v. Commonwealth, --- S.E.2d ----, 2009 WL 2972896 (Va. 2009).
Court orders disclosure of officer's private and personal cell phone records to criminal defense attorney
Officers were looking for a car that might contain a person suspected of having just overdosed on heroin at a local store. There was information that a person in the car was giving CPR to the overdose victim. An officer saw Ortiz’s car weaving and driving erratically. The officer stopped Ortiz and ultimately arrested him for DUI. Ortiz was not involved in the overdose situation. Ortiz claimed that there was no reasonable suspicion for the stop and that the officer’s explanation about the overdose was pretextual. Ortiz sought an order from the trial court that the police officer be required to surrender his personal cell phone records for the time surrounding the stop and the arrest.
The trial court, sustained by the New Mexico Court of Appeals, made a number of findings that would surprise any scholar familiar with electronic communications records. The court found that the officer’s personal phone records for the time that he was on duty and in a marked patrol car and engaged in official duties were records under the control of the state. The court also found that neither the United States Constitution nor the New Mexico Constitution gave the officer a right of privacy in his cell phone records (though this finding did not extend to the content of communications). The court also found that the federal Electronic Communications Privacy Act did not apply to this situation. The federal law requires that no cell phone records can be disclosed to law enforcement unless there are reasonable grounds to believe that the records are relevant and material to an investigation. Ortiz’s defense attorney didn’t use the term “fishing expedition” in the demand for the cell phone records, but offered no substantive basis to show that the threshold for the federal statute had been met.
The officer asserted his privacy rights under the federal and state constitutions and declined to provide the cell phone records. The prosecution supported the officer in his exercise of constitutional rights and maintained that the Constitution and plainly written federal statute barred the State from coercing the officer to give up his personal records. In response, the trial court dismissed the DUI and other charges against Ortiz. The court of appeals sustained the trial court. This case serves as a warning, at the very least in New Mexico, of the courts’ willingness to attempt to exercise control over an officer’s communication records, with no substantive basis for doing so and in a fairly plain violation of the Electronic Communications Privacy Act, when the officer is on duty, in a marked vehicle, and on official business. State v. Ortiz, 215 P.3d 811 (N.M. App. 2009).
Exigent circumstances justified warrantless entry, but not warrantless search of genitalia
Officers found a naked woman shivering and crying on a city street. The woman reported that she had just been raped in the garage across the street. The victim’s body showed obvious signs of a very recent beating. She gave a detailed description of her assailant. Officers went to the garage, looked through an open door and saw woman’s clothing and underwear, a condom wrapper, and blood on the floor. They went to the door of the home, knocked for 3 to 5 minutes and heard no noise and had no response. They entered and found Lussier passed out on a couch. He matched the description given by the woman. He had scratches on his chest and blood on his hands. The officers arrested him and took him to a hospital for an examination. At the hospital, the officers had medical personnel examine Lussier’s genitals and take swabbings and hair samples. Lussier claimed that the entry into his home was illegal. The court of appeals held that the warrantless entry was valid under the exigent circumstances doctrine. There was a real danger that Lussier would wash off blood and destroy other evidence. However, the court held that the officers should have obtained a warrant to examine Lussier’s genitals and take fluid and hair samples. The court stated that there was no evidence that, unlike alcohol, body fluid evidence evaporates with time. Thus, there was time to obtain a warrant. While it is true that some coital fluids dissipate and degrade with time, secretion of perspiration and possibly through urine contamination, apparently that fact was not relied upon at the trial court level. State v. Lussier, 770 N.W.2d 581 (Minn. App. 2009).
Qualified immunity denied for officers who detained and handcuffed possible witness
An officer received information that Manzaneres could help the officer to locate a rape suspect. Two officers went to Manzaneres’s home. Manzaneres invited the officers into his home and was generally cooperative. When Manzaneres told the officers that he could not provide the last name or address of the suspect and officers pressed him, he asked the officers to leave. They did not leave. Instead, they handcuffed Manzaneres. One officer later explained that he was concerned that there might be weapons in the home, though Manzaneres was not threatening and was not suspected of any crime. The officers were concerned that Manzaneres might tip off the suspect that they were searching for him. They found an address for the suspect through other sources. The officers then placed Manzaneres in handcuffs and in the back seat of a patrol car for several hours so that he could not communicate. After the suspect’s arrest, they released Manzaneres.
Manzaneres sued, claiming that the officers remained in his house without legal authority and that they illegally detained him. The officers asserted that Manzaneres was being detained in connection with an investigation into his alleged obstruction of an officer, or alternatively, as a witness. A jury found in favor of the officers and the court of appeals reversed the jury verdict.
At the time that the officers handcuffed Manzaneres, they knew only that he was a co-worker of the suspect and that they had socialized together on the previous evening. Although the officers believed that Manzaneres was holding back, they could not articulate a factual basis for their belief. The court of appeals held that the officers “could not have reasonably believed that Manzanares had resisted, evaded, obstructed, or refused to obey an officer within the meaning of either of the relevant provisions of New Mexico law.”
Courts allow a brief detention of a witness for information or to prevent interference in an ongoing investigation. The court explained: “Because the detention here occurred inside a home, it was unquestionably unconstitutional unless supported by probable cause.” The court held that there was no probable cause to believe that Manzaneres would interfere with the investigation. The officers’ “unsubstantiated hunch cannot constitute probable cause.” Thus, the detention inside the home was unconstitutional once Manzaneres withdrew his consent for the officers to be inside the home. A consensual entry and/or encounter is “limited by the scope of consent given.” The court held that the officers were not entitled to qualified immunity from suit because a reasonable police officer would know that his presence in Manzaneres’s home after Manzaneres withdrew his consent would be plainly illegal. “Although the Fourth Amendment guarantees ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,’ its foremost concern is the home. Even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found within a home, police may not enter without a warrant absent exigent circumstances.” Thus, the court held that the officers were liable as a matter of law and remanded the case for a new trial solely on the issue of damages to be paid to Manzaneres. Manzanares v. Higdon, --- F.3d ----, 2009 WL 2430643 (10th Cir. 2009).
Suspect not seized by officers' questioning (talking nice, thinking mean) or momentary compliance with show of authority
Two officers spotted Smith walking through a high-crime area at 0300. The officers drove alongside Smith and asked to speak with him. Smith stopped walking and turned at a 45 degree angle towards the car, seemingly agreeing to speak with the officers. An officer asked if Smith had any identification, to which he replied no. The officer asked Smith where he was heading and he replied he was going to “his girl's house.” The officer asked the address of Smith’s girl's house and Smith repeated, “I am heading to my girl's house.” The officer asked the same question again and Smith gave the same answer. The officer then asked Smith to put his hands on the hood of the patrol car so the officers could “speak with him further.” Smith took a couple of steps toward the car. The officers opened the car doors and Smith fled. As Smith ran, he dropped a gun. The officers caught Smith. He was also holding a gram of cocaine.
The district court found that Smith was seized, either by the officer’s repeated questions about the girl’s address, or when Smith turned toward the car and momentarily submitted to the officers’ authority. In California v. Hodari D., 499 U.S. 621 (1991), the Supreme Court held that an officer's order to stop may not necessarily create a Fourth Amendment seizure. The seizure occurs when and if the suspect complies with the officer’s order. In Brendlin v. California, 551 U.S. 249 (2007), the Supreme Court clarified that whether a person’s passive compliance with an officer’s order amounts to submission to authority or not should be analyzed by the reasonable person standard. That is, the court should ask whether a reasonable person would have believed he or she was not free to terminate the encounter with the officer.
The court of appeals reversed the trial court and held that Smith was not seized, either by the officer’s “show of authority” through the questioning, or by Smith’s “momentary compliance” with the officer’s command. The court stated that submission to authority under Hodari D., “requires at minimum, that a suspect manifest compliance with police orders.” “Two steps towards the hood of a car does not manifest submission to the police officers' show of authority.” The officers’ questioning could not amount to seizure because Smith never responded in a way that was “clearly a refusal to engage” in conversation. The court noted that the “two officers were still in their car, neither officer displayed his weapon, there was no physical touching, and no indication as to the language or tone of the officer's voice that might have signaled a clear show of authority. Under the totality of the circumstances, Smith was not seized for Fourth Amendment purposes when the officer repeatedly asked the question, ‘Where is your girl's house?’” Once again, “talking nice while thinking mean” contributed to ruling that there was no seizure. Because Smith was not seized prior to dropping the gun, his arrest was lawful and the gun and cocaine were admissible as evidence against him. United States v. Smith, --- F.3d ----, 2009 WL 2257456 (3rd Cir. 2009).
Roadblock to deter poaching found to be constitutional
National Park rangers set up a vehicle checkpoint at the entrance to the Kings Canyon National Park to “mitigate the illegal taking of animals in the park” due to illegal hunting in the national park. Rangers stopped all cars for about 15 to 25 seconds, and spoke with drivers about illegal hunting. As a ranger spoke with Fraire at the checkpoint, he detected the strong odor of alcohol on Fraire's breath. Fraire was charged with driving under the influence and related offenses. Fraire claimed that the checkpoint was unconstitutional. The court of appeals held that the checkpoint complied with the rule established in Illinois v. Lidster, 540 U.S. 419 (2004). In Lidster, the Supreme Court ruled that brief suspicionless vehicle checkpoints designed to gather information, rather than as a general crime-control measure, are lawful. A court must consider, “the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” The court of appeals held that the evidence showed that there was a significant poaching problem within the park. “The checkpoint was closely related to addressing this problem because it was structured to catch poachers, to deter would-be poachers, and to educate park visitors about the hunting prohibition.” Overall, the court opined that the checkpoint was constitutional because, “the gravity of the public concerns served by the checkpoint was high, the checkpoint was reasonably related to these concerns, and the severity of the interference with individual liberty was minimal.” United States v. Fraire, --- F.3d ----, 2009 WL 2367023 (9th Cir. 2009).
Good faith exception applied to evidence subject to suppression under Arizona v. Gant
The Tenth Circuit Court of Appeals created a significant new rule in the area of the good-faith exception to the exclusionary rule. The new case will have a substantial impact on prosecutions based on searches of vehicles incident to arrest where the arrest preceded the Supreme Court’s recent ruling in Arizona v. Gant. The court’s decision significantly tempers the ill effects of applying the Gant ruling retroactively to pending criminal cases.
An officer saw McCane driving his car and straddling the lane divider lanes. The officer stopped McCane, suspecting that he was impaired. McCane told the officer that his driver license was suspended. After confirming the license suspension, the officer arrested McCane, handcuffed him and placed him in the back seat of the patrol car. The officer also directed a passenger to get out of the car. The officer searched the car incident to the arrest and found a loaded handgun in the driver side door pocket. Upon seeing the gun, McCane said, “I forgot that was even there.” McCane was charged with being a felon in possession of a handgun.
The trial court refused to suppress the gun. While the case was on appeal to the Tenth Circuit Court of Appeals, the Supreme Court issued its decision in Arizona v. Gant. Gant held that a vehicle search is not valid as incident to a lawful arrest when a defendant is stopped for a traffic violation and handcuffed in the back of the patrol car at the time of the search. Under the rule of Gant, the gun found next to McCane’s seat should have been suppressed. However, the court chose to extend the good faith exception to the exclusionary rule, uphold the admission of the evidence, and sustain McCane’s conviction. The court acknowledged that the facts in McCane’s case were indistinguishable from Gant. However, the court stated, “we agree with the government that it would be proper for this court to apply the good-faith exception to a search justified under the settled case law of a United States Court of Appeals, but later rendered unconstitutional by a Supreme Court decision.”
In applying the good faith exception, the court relied on another recent Supreme Court decision, Herring v. United States, ---U.S. ----, 129 S.Ct. 695 (2009). In Herring, the Supreme Court held that evidence obtained in a search incident to arrest based on a warrant later found to be recalled should not be suppressed. The Supreme Court stated that, “evidence should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” In this case, the officer was relying on legal principles taught for decades following the decision in New York v. Belton, 453 U.S. 454 (1981). The Supreme Court has repeatedly articulated deterrence of police misconduct as the prime purpose of the exclusionary rule. Here the deterrence principle could have no application because the officer was relying on well-established law. United States v. McCane, --- F.3d ----, 2009 WL 2231658 (10th Cir. 2009).
Search of a computer under warrant authorizing search for records requires specific computer search authorization
Officers believed that Payton was selling drugs and they obtained a search warrant to search his home for evidence of drug sales, including buy sheets, sales ledgers, financial records, bank accounts, loan applications and other financial records. The warrant did not specifically authorize a search of computers for such records, even though the requesting affidavit contained a reference to computer searches. The issuing judge neglected to include authorization for a computer search, though he later stated that it was his intent to do so.
While searching Payton’s home, an officer found a computer in a sleep mode. The officer moved the cursor, awakening the computer. The officer saw a file name that appeared to reference child pornography. The file did contain an image of child pornography. A search of the computer revealed other illegal images. Payton was convicted of possession of child pornography.
Many courts consider computers to be little more than document receptacles and storage devices. Those courts generally allow searches of computers under general authorization in a search warrant to search for “documents.” Commonwealth v. McDermott, 864 N.E.2d 471 (Mass. 2007) (comparing computers to file cabinets and locked desks with millions of files). Other courts consider computers to be peculiarly capable of storing a vast amount and variety of information and hold that computers deserve special consideration in search warrant jurisprudence. For example, in United States v. Carey, 172 F.3d 1268 (10th Cir. 1999), officers were searching for evidence of cocaine sales when they came across numerous .jpg image files. Opening the files, the officers discovered child pornography. The court suppressed the evidence, holding that officers searching computers which contain intermingled documents must take the intermediate step of sorting various types of documents and then only search the ones specified in a warrant. In this case, the Ninth Circuit Court of Appeals stated that searches of computers are far more intrusive than other kinds of document searches. The court discounted the fact that the issuing judge acknowledged that he had made a mistake, noting that the purpose of a warrant was to advise the searching officers precisely where they may search. Thus, a specific authorization must be included in the search warrant if officers wish to search computers located on the premises to be searched. United States v. Payton, --- F.3d ----, 2009 WL 2151348 (9th Cir. 2009).
Removing bag from bus luggage compartment created illegal seizure
Interdiction officers inspected the luggage compartment of a Greyhound bus and noticed that a bag’s computer-generated label had been altered by hand. Finding this to be suspicious because an officer with 6 years experience in checking bus luggage had never seen an altered tag before, the officers removed the bag. After determining that the driver was not ready to depart and obtaining the driver’s consent to board the bus, the officers boarded the bus and asked which passenger owned the bag. Alvarez-Manzo (traveling under the false name of Perez) claimed ownership. Alvarez-Manzo claimed that he did not have any ID. However, an officer could see a bulging wallet in his pants pocket. The officer searched the wallet with Alvarez-Manzo’s permission and discovered the baggage claim ticket. The officers handcuffed Alvarez-Manzo and retrieved a drug detector dog from a nearby police car. The dog gave a positive final response to the bag. A search warrant was obtained and executed and officers found 10 kilos of cocaine in the bag.
Alvarez-Manzo claims that his bag was seized by the officers without a warrant, consent or reasonable suspicion. In United States v. Va Lerie, 424 F.3d 694 (8th Cir. 2005) (en banc), the court established a test to determine whether an officer’s law enforcement's detention of property entrusted to a third-party common carrier creates a seizure. A seizure of checked baggage occurs when the detention does any of the following: (1) “delays a passenger's travel or significantly impacts the passenger's freedom of movement,” (2) “delays [the checked luggage's timely delivery,” or (3) “deprives the carrier of its custody of the checked luggage.” In United States v. Va Lerie, the officers removed the baggage at the request of the bus carrier, and not of the officer’s own volition. The court held that the officers seized Alvarez-Manzo’s bag by removing it from the bus for their own investigative purposes. There was not reasonable suspicion to support the seizure and the evidence of the cocaine was ordered suppressed. It seems clear that the case would have had a different outcome, insofar as justifying the seizure, had the drug dog sniffed the bag prior to seizure. However, there may be many reasons that such a course of action was not possible or advisable in this case. United States v. Alvarez-Manzo, 570 F.3d 1070 (8th Cir. 2009).
Search incident to arrest following warrant arrest found unconstitutional under Gant
An officer saw Henning inside a store. After confirming his belief that there was an arrest warrant outstanding for Henning, the officer asked Henning to step out of the passenger side of a car that he had just entered and the officer arrested him on a warrant. The car was registered to Henning. The officer searched the car incident to arrest and found drug paraphernalia that later tested positive for amphetamine. The officer relied on a Kansas statute that allowed search incident to arrest of a vehicle for “evidence of a crime.” A Kansas Supreme Court decision, State v. Anderson, 910 P.2d 180 (Kan. 1996), had earlier held that the search incident to arrest must be limited to a search for evidence of the crime for which the person was arrested. A more recent state statute expanded the search authority to allow a search for evidence of any crime.
Henning relied on the recent case of Arizona v. Gant to claim that the search of his car was illegal. In one of the first post-Gant decisions, the Kansas high court agreed with Henning and held that the search was illegal. A Kansas statute that authorizes police officers to search an arrestee and the area immediately around him for evidence of “a crime” violates the Fourth Amendment, the Kansas Supreme Court held June 26. The U.S. Supreme Court recently made clear in Arizona v. Gant, 85 CrL 95 (U.S. 2009), that the search-incident-to-arrest exception to the warrant requirement allows police to search the area within reach of an arrestee only to protect themselves or to find evidence that relates to the offense of arrest. In Arizona v. Gant, the U.S. Supreme Court held: “If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.” At the time of the search, Henning was secured in handcuffs and standing several feet away from the car. “To have a valid search incident to arrest, when there is no purpose to protect law enforcement present, the search must seek evidence to support the crime of arrest, not some other crime, be it actual, suspected, or imagined.” The Kansas court held that the state statute authorizing a search incident to arrest to be unconstitutional insofar as it purports to allow a search for evidence of a crime other than the crime for which the suspect was arrested. Applying the Gant ruling, the court ordered that the drug evidence be suppressed. State v. Henning, 209 P.3d 711 (Kan. 2009).
Stop based on officer's mistake must end immediately after mistake is recognized
An officer saw Morris driving, but could not see a license plate. Morris was weaving within the traffic lane (the prosecution later conceded that the driving pattern would not have justified a traffic stop). The officer stopped Morris. As he walked up to speak to Morris, the officer saw a valid paper temporary registration taped in the rear window. The officer explained to Morris that he had not seen the registration and that was the reason for the stop. As the officer conversed with Morris, the officer could smell the odor of alcohol. Morris failed the SFSTs and was arrested for DUI. A search incident to arrest revealed illegal drugs. Morris pleaded guilty to possession of illegal drugs and paraphernalia, reserving the right to appeal the court’s denial of his motion to suppress evidence.
The Utah Court of Appeals reversed Morris’s conviction. The court held that “a police detention is no longer justified as soon as the exception initially justifying the intrusion is absent.” Other courts have courts have held that the officer who makes a stop based on a mistaken belief, such as not seeing a registration tag, may prolong the stop only long enough to explain the mistake. United States v. Edgerton, 438 F.3d 1043 (10th Cir. 2006). Some courts have upheld arrests based on observations and conversations stemming from a mistaken stop. For example, the California Court of Appeals upheld an arrest when an officer stopped a car under the mistaken belief that air fresheners hanging from the rear view window violated state law. As the officer spoke with the driver, the officer smelled to odor of marijuana and a drug arrest followed. People v. White et al., 132 Cal. Rptr. 371 (Cal. App. 2003). The Utah Court of Appeals considered the risk that a motorist would sit at the side of the road, or unjustly complain to police about harassment, when an officer realized that he or she was mistaken about the justification for the stop and simply walked away. However, the court expressly ruled that the officer should have done just that – walked back to his car and driven away with no courteous explanation of the stop. Had the officer done so, he never would have recognized that Morris may be committing a serious crime and Morris’s drug trafficking would have gone undetected at the stop. State v. Morris, --- P.3d ----, 2009 WL 1886866 (Utah App .2009).
Supreme Court holds lab tests to be testimonial; requires analysts to testify in court
The U.S. Supreme reversed many years of Sixth Amendment precedent in Crawford v. Washington, 541 U.S. 36 (2004), when it held that a judge could no longer admit “testimonial” hearsay evidence that the judge found to be “reliable,” unless the prosecution showed that the hearsay declarant is unavailable, but was previously available for cross-examination by the defendant. The Crawford decision significantly impacted the preparation and presentation of prosecution cases. Lower courts have struggled to define just what the Court meant by “testimonial” evidence. The Court continued its retrenchment on Sixth Amendment's Confrontation Clause jurisprudence in the recent case of Melendez-Diaz v. Massachusetts.
Melendez-Diaz was arrested during a cocaine sale in a parking lot. The prosecutor introduced the bags of cocaine and proffered drug test results certified by the lab technician who conducted the tests. Melendez-Diaz was convicted. He appealed, claiming that the test results were “testimonial” and that the Sixth Amendment created a right to confront the lab technician. Prior Massachusetts court decisions had held that lab result certificates were not “testimonial.”
In a majority opinion written by Justice Scalia, the Supreme Court held that the Sixth Amendment's Confrontation Clause does require a lab technician’s report offered in a criminal trial is “testimonial” and the technician must be available to testify at trial. This marked the second major case in which Justice Scalia and Justice Thomas sided with the Court’s liberal wing to rule against law enforcement interests. Justice Kennedy authored a sharp dissent, referring to the majority’s “cavalier” approach and ignorance of the practical impact on criminal prosecutions. Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009).
Questioning without warning proper under the rescue doctrine exception to the Miranda rule
On October 1, 1993, Davis kidnapped Polly Klaas from a slumber party with her friends. On November 30, officers arrested Davis. Davis invoked his right to counsel. After learning that his palm print matched a print found at the scene, an officer asked Davis whether there was any hope of finding Polly Klaas alive. Davis told him that he didn’t know what he was talking about. However, 15 minutes later, Davis called the officer back to his cell and told the officer that she was dead. He gave a detailed confession and lead officers to the child’s body. Davis claimed that the officer’s questioning about finding the victim’s body was unconstitutional interrogation because he had invoked his right to an attorney. Davis claimed that the “rescue doctrine” could not apply because the child had been missing for 64 days when he was questioned.
A suspect may be questioned, even after invoking the right to counsel or right to remain silent, when there is: “1. Urgency of need in that no other course of action promises relief; 2. The possibility of saving human life by rescuing a person whose life is in danger; and 3. Rescue as the primary purpose and motive of the interrogators.” The California Supreme Court held that the questioning was proper. The court ruled that the officer’s questions were limited to the purpose of finding the victim, or her dead body, and were not intended to elicit an incriminating response. The court stated: “the length of time that a kidnap victim has been missing is not, by itself, dispositive of whether a rescue is still reasonably possible.” Davis had told associates that he committed the crime for money. Thus, it was reasonable for the officers to believe that the victim might be alive 64 days after the kidnapping. The court affirmed Davis’s death sentence. People v. Davis, --- P.3d ----, 2009 WL 1515177 (Cal. 2009).
Questioning without warning proper under the public safety exception to the Miranda rule
A number of officers descended on a neighborhood known for violent crime and an open drug market in Washington, D.C., to arrest Jones on a murder warrant. The officers had information that Jones had committed the murder with a gun and that he was armed. An officer spotted Jones and chased him. When the officer caught Jones, he asked Jones if he “had anything on him.” Jones said that “his burner” was in his waistband. An officer retrieved a handgun from Jones’s waistband. Jones was convicted of unlawful possession of a firearm and ammunition by a convicted felon. Jones claimed that the question about whether he had anything on him constituted illegal interrogation because it preceded a Miranda warning. The court held that the question was proper under the “public safety” exception to the Miranda rule. In New York v. Quarles, 467 U.S. 649 (1984), the Supreme Court held that officers may ask questions without a Miranda warning when “reasonably prompted by a concern for the public safety,” or for the safety of the arresting officers. In Jones’s case, the court observed that said there is “nothing unreasonable about an officer worrying that a person who committed a murder just six weeks before, and who had a previous conviction for a firearm offense, would be in the habit of carrying a weapon.” Moreover, the court recognized that Jones had not yet been searched, his clothing could conceal a gun, there were small children nearby, and the neighborhood was well-known for its danger level and drug dealing. United States v. Jones, --- F.3d ----, 2009 WL 1586784 (D.C. Cir. 2009).
Search following roadblock ruse upheld because officer talked nice
Hedgcock and a friend were driving on I-80 near the Platte (Ne.) River rest stop. They saw signs that announced a drug checkpoint and a drug dog ahead and they quickly exited the freeway to stop at the rest stop. There was no checkpoint; the signs were part of a roadblock ruse. Hedgcock and his friend entered the restroom separately, while the other watched the car. Suspecting that Hedgcock was transporting drugs, a plain clothes officer approached him and asked to speak with him. Hedgcock agreed. The officer asked to see Hedgcock’s driver license. He examined it and returned it to Hedgcock. Though Hedgcock claimed to be traveling from Utah to Chicago to visit a friend, he was unable to provide details about the trip. The officer used a friendly, conversational tone with Hedgcock and told him that he was not in any trouble (talk nice, think mean!). Hedgcock gave the officer permission to search the interior of the car. As soon as the officer opened the car door, he could smell burnt marijuana. Hedgcock said that there might be some marijuana in the ashtray. Eventually, Hedgcock admitted that he was transporting marijuana and the officer found approximately 50 pounds of pot in a car top luggage carrier.
Hedgcock was convicted of possession of marijuana with intent to distribute. He appealed, claiming that the Platte River rest area was an unconstitutional drug checkpoint and that the encounter between himself and the officer was an unconstitutional seizure. The court made quick work of the first claim, holding that “the use of a ruse checkpoint, without an unreasonable seizure for Fourth Amendment purposes, is not unconstitutional simply because it is a ruse.” The court also held that the officer’s questioning of Hedgcock was not inherently coercive just because it followed a police deception. “Although the officers misrepresented the fact that a drug checkpoint was beyond the rest area, there was nothing in the record to reveal that the officers coerced Hedgcock into answering questions or consenting to a search.” Some courts have suppressed evidence gathered in a roadblock ruse operation, particularly when the basis for the stop and detention was a motorist’s effort to avoid the false checkpoint. Here there was no stop and no detention based on Hedgcock’s actions.
The conversational tone used by the officer and the fact that he told Hedgcock that he was not under arrest and not in trouble supported the conclusion that the encounter was consensual and Hedgcock was not seized until the drugs were found. “A seizure does not occur simply by reason of the fact that a police officer approaches an individual, asks him or her for identification, and poses a few questions to that individual.” A seizure occurs only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave. Because there was no illegal detention, the court affirmed Hedgcock’s conviction. State v. Hedgcock, 765 N.W.2d 469 (Neb. 2009).
Police initiation of investigation that lead to parole search and involvement in parole search is proper
A CI made a controlled buy of cocaine from Scott, who was a parolee. Upon learning that the CI was the subject of an arrest warrant, task force officers suspended the cocaine investigation. Some weeks later, a task force officer provided information about the controlled buy to a parole officer. The parole officer obtained a parole arrest warrant based on the officer’s information. The task force officers accompanied the parole officer to arrest Scott. When Scott did not answer their knocks, they broke in and found Scott in bed, near some marijuana. During the search of the house, officers found more drugs and a gun with an obliterated serial number. Scott was convicted of federal drug and gun violations.
Scott claimed that the task force officers’ involvement in providing information to the parole officer that supported the arrest warrant, and participation in the arrest and search, was an improper exploitation of the parole officer’s authority to search Scott’s person and premises. In Griffin v. Wisconsin, 483 U.S. 868 (1987), the Supreme Court held that the special needs of parole and probation operations justify warrantless searches of parolees upon reasonable suspicion of an offender’s home. Courts have developed a rule that police officers cannot use the warrantless search provisions applying to parolees and probationers as a way to get around otherwise applicable Fourth Amendment rules during criminal investigations. However, it is proper for police officers communicate information and coordinate operations with parole officers.
This was a case where the police officer initiated the investigation that lead to Scott’s arrest and the associated search. The court held that did not render the parole warrant and search unlawful. The court stated that it had, “long endorsed ‘mutually beneficial cooperation’ between law enforcement and probation officers.” The police officers informed the parole officer of the controlled buy, but the police officers did not ask the parole officer to obtain a warrant, make an arrest or conduct a search. Because the parole officer made those decisions, the police involvement was not improper. The fact that police officers helped execute the warrant and conduct the search was also not persuasive and the court affirmed Scott’s conviction and his 20 year sentence. United States v. Scott, --- F.3d ----, 2009 WL 1415997 (1st Cir. 2009).
Delay in delivery of express mail didn't constitute a seizure following K9 sniff of package
A postal inspector had information that Jefferson was receiving drugs in the mail. He learned from a postal clerk that a package was in the mail and scheduled for delivery to Jefferson’s home. The postal inspector asked the clerk to hold the package overnight. The next day, the postal inspector had a drug detector dog sniff the package. The dog gave the positive final response, indicating that the package contained illegal drugs. The postal inspector obtained a search warrant that authorized a search. The package contained 235 grams (approximately ½ pound) of methamphetamine. A controlled delivery followed and Jefferson was arrested when he opened the package.
Jefferson claimed that the delay in delivery of the package violated his Fourth Amendment rights. The court held that his privacy rights were not violated, because the clerk examined only the outside of the package and the dog sniffed only the air around it. The inspection of the package was conducted under a search warrant. However, the Fourth Amendment claim also implicated his possession rights. A person has a right to timely delivery of mail addressed to him or her. Because Jefferson’s package was an Express Mail package, he argued that he had a right to speedy, uninterrupted delivery. In this case, the postal inspector developed probable cause to search the package before the contractual deadline for delivery. Therefore, the court held that there was no improper seizure of the package under Fourth Amendment doctrines. “By the time ‘the constitutional chemistry was altered’ at 3:00 p.m. on April 7, law enforcement had already established probable cause to seize Jefferson's package. Thus, law enforcement acted well within the bounds of the Fourth Amendment in detaining, seizing and then searching Jefferson's package.” United States v. Jefferson, --- F.3d ----, 2009 WL 1444555 (9th Cir. 2009).
K9 tracking evidence subject to expert witness foundation requirements
White and two confederates robbed a convenience store at gunpoint. As the bandits were leaving the store, a police officer pulled in to the parking lot. The store clerk flagged the officer over and told him about the robbery. The officer chased the bandits, caught one, and White and the other continued to run. A K9 team responded and tracked White. The dog tracked directly to White. Apparently tuckered out from running while under the influence of large quantities of alcohol, White was curled up sound asleep on the ground, his handgun held like a pacifier. White challenged the introduction of the tracking evidence. Despite a positive identification by the store clerk and the officer who saw him run from the store, White claimed that “some other dude done it.” He did not have a rationale explanation for being asleep in a field, grasping a handgun.
White claimed the trial judge failed in his gate keeping role to vet the reliability of the dog's tracking skills, thus leaving the jury to speculate about the dog's reliability. The court overruled a South Carolina Court of Appeals decision setting different standards for admission of science-based expert testimony and experience-based expert testimony. The court held that expert testimony based on specialized skill is subject to the same test for admissibility as scientific expert testimony. The court adopted a test nearly identical to numerous other jurisdictions. “A sufficient foundation for the admission of dog tracking evidence is established if (1) the evidence shows the dog handler satisfies the qualifications of an expert under Rule 702; (2) the evidence shows the dog is of a breed characterized by an acute power of scent; (3) the dog has been trained to follow a trail by scent; (4) by experience the dog is found to be reliable; (5) the dog was placed on the trail where the suspect was known to have been within a reasonable time; and (6) the trail was not otherwise contaminated.” The court held that the trial judge had properly considered the qualifications of the handler/expert and the reliability of the evidence and it affirmed White’s conviction. State v. White, --- S.E.2d ----, 2009 WL 1108881 (S.C. 2009).
Currency contamination theory doesn't defeat K9 sniff
Ronald Johnson saw a police officer and began to run. The officer chased Johnson to a house. When the officer knocked on the door, Johnson shouted at him from the second floor window. After some commotion, the officers entered the house and found Johnson in the second floor room. There were various drugs on the bed near Johnson. They arrested Johnson and took him to jail. At the jail, the officers found $845 in Johnson’s pants pocket. A drug detector dog sniffed the pants and the cash and gave a positive final response to both. The prosecution introduced the sniff evidence and preemptively introduced evidence to combat the widespread misunderstanding about currency contamination.
The court held that the prosecutor should not have been allowed to preemptively attack the currency contamination myths. However, the court also rejected Johnson’s claim that the court should take judicial notice that the majority of U.S. currency is contaminated by the residue of controlled substances. The dog’s handler testified about conducting a number of controlled sniffs in proofing exercises with currency in general circulation in the community. However, the court observed that the handler had not been presented as an expert in the currency contamination theory. Nonetheless, the results of the dog sniff were held to have probative value in determining whether Johnson possessed illegal drugs.
The currency contamination theory is just a theory. Moreover, the condition of residual, microscopic trace evidence of drugs on a single bill does not lead to the conclusion that the bill will carry the odor of illegal drugs. Defendants who have advanced the currency contamination theory have often done so relying on scientifically fallacious arguments, supported by junk science. In the cases where the prosecution has responded with the properly qualified experts, the currency contamination theory rapidly disintegrates into the residue of detritus and its value in the courtroom becomes less than microscopic. Johnson v. State, --- A.2d ----, 2009 WL 929347 (Md. 2009).
Warrantless search of probationer's home allowed, even without probation agreement provision
Carter was on probation for possession of cocaine and for battery. He was subsequently arrested for trafficking in cocaine and ecstasy, but the evidence was suppressed and the charges were dismissed. The prosecutor notified Carter’s probation agent of the arrest and evidence issues. Carter reported meager income from menial labor, but bought three expensive cars and a town home. Carter told his probation officer that he was forming a drywall company with a friend (who had a felony criminal history). The business cards had stylized printing that suggested a gang affiliation. The probation agent decided that there was reasonable suspicion to search Carter’s home. Carter’s probation agreement did not include a provision subjecting him to warrantless searches.
In United States v. Knights, 534 U.S. 112 (2001), the Supreme Court upheld a police officer’s search of a probationer's home upon reasonable suspicion, in a case where there was a probation agreement provision providing for warrantless searches. The Court’s opinion did not foreclose the possibility that probation searches might be permissible upon reasonable suspicion and without a probation agreement requiring warrantless searches. Lower courts have divided on the issue of whether warrantless search clauses must be contained in probation agreements in order for such searches to be permitted upon reasonable suspicion. The Court of Appeals for the 11th Circuit held that, “when a probationer has a condition of probation reducing his expectation of privacy, and the government has a higher interest in monitoring the probationer due to the nature of his criminal history, a search can be permissible when supported only by reasonable suspicion.” Carter’s expectation of privacy in his home was reduced by a probation condition requiring him to submit to home visits. “We conclude, in this case, that Carter had a reduced expectation of privacy in his home and the government had a sufficiently high interest in monitoring him on account of his drug and violence-related crimes that a search of Carter's home based upon reasonable suspicion was reasonable under the Fourth Amendment.” The better course is to include warrantless searches as written conditions in probation agreements. United States v. Carter, --- F.3d ----, 2009 WL 1108667 (11th Cir. 2009).
No custody in police parking lot conversation
Burbine fought with his girlfriend. She asked him to leave. She then called the police and asked them to come and pick up some of Burbine’s belongings, including a duffel bag of illegally-possessed guns. An officer later telephoned Burbine and invited him to come to the station to retrieve his property. The officer intended to ask Burbine about the guns. Two officers met Burbine in the parking lot and casually asked him questions about the ownership of the guns. Burbine admitted to owning all but one. The trial judge suppressed Burbine’s statements, finding that he was not free to leave at the time of the questioning, thus triggering Miranda warnings. The judge further found that, even if Miranda warnings were not required, the statements were involuntarily given.
The appellate court reversed. The statements were not involuntary. The officers “talked nice, thought mean.” There was no coercion involved. Burbine was a person of average intelligence who was fully rational and capable of freely conversing with the officers. Nor was Burbine in custody. He was not escorted into the station, placed in a patrol car, told that he couldn’t leave, or restrained in any way. The objective circumstances of the interrogation do not disclose that there was a restraint on Burbine’s freedom of movement of the degree associated with a formal arrest. The officer’s unstated intent to arrest Burbine on weapons charges was irrelevant to the custody determination. Commonwealth v. Burbine, 904 N.E.2d 787 (Mass.App.Ct. 2009).
Search incident to arrest rules modified in Arizona v. Gant
The United States Supreme Court modified the search incident to arrest doctrine, rejecting a broad reading of New York v. Belton, 453 U.S. 454 (1981). In Arizona v. Gant, --- U.S. ---, 2009 WL 1045962, the Court overturned the search incident to arrest of Rodney Gant’s car after Gant was arrested for driving with a suspended license, handcuffed and secured in the back of a patrol car with several officers at the scene. Officers found cocaine in Gant’s car during the search incident to the driver license arrest.
The Court held that a search of the passenger compartment of a vehicle following an arrest is allowed “only if [1] the arrestee is within reaching distance of the passenger compartment at the time of the search or [2] it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.”
The holding of Chimel v. California, 395 U. S. 752 (1969), continues to be good law, insofar as the search incident to arrest can be justified by the suspect’s ability to lunge to an area and destroy evidence or reach a weapon. However, once the suspect is handcuffed and moved away from the vehicle, the suspect’s ability to reach evidence or a weapon is eliminated, or at least significantly reduced. One of the practical dangers of today’s decision in Arizona v. Gant is that some officers may conclude that there is a practical balancing act, a tactical trade-off. Leave the suspect unsecured, unhandcuffed, and near the car, and there remains the possibility that that suspect would lunge toward a weapon and thus, the legal justification for the search remains. The legal justification may come at the cost of a significant risk to the officers’ safety.
Five years ago, in Thornton v. United States, 541 U. S. 615 (2004), the Court recognized that a search of a vehicle incident to the arrest of a recent occupant may be also justified “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” The Gant decision also leaves this holding intact. Because Gant and the other two suspects were in custody, handcuffed and secured in separate police cars, the Court refused to apply the Chimel lunge or reaching justification to the case. And because Gant was arrested for a driver license violation, the Thornton evidentiary search holding would not apply. It was not reasonable to believe that the vehicle held evidence of Gant’s suspended driver license status.
The Gant decision was released today as I was speaking to a group of court staff, attorneys and law enforcement officers. One officer showed me a bulletin from his agency that suggested that the search incident to arrest doctrine was no longer valid. Several officers had news stories suggesting that there could no longer be a search incident to arrest of a vehicle. While troubling for officers, the Gant holding is not nearly so broad. Gant stands for the proposition that once the arrestee is secured, a search incident to arrest of the involved vehicle is lawful only when there is reason to believe that the vehicle holds evidence of the underlying crime on which the arrest is based. Gant does not foreclose other search doctrines that may apply to particular cases. Fourth Amendment warrant clause exceptions of consent, probation/parole search, exigent circumstances, vehicle “frisk” for weapons upon appropriate reasonable suspicion, inventory and community caretaking, continue to potentially apply.
I remember being a young cop and being pleasantly surprised by the Belton decision in 1982. Now 27 years later, I am surprised by the result in Gant. The thin majority (5-4) was made possible only by Justice Scalia joining the majority opinion, although he wrote a separate opinion highlighting his comments in Thornton. During oral arguments in Arizona v. Gant, held in the fall of 2008, 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. 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)?” A past issue of Xiphos suggested that Justice Scalia’s questioning signaled his desire to curtail or overturn Belton. The Belton decision may have made an officer’s job a little easier, and the Gant decision may well make the job harder, but at the end of the day, cops will continue to uphold, defend and honor the Constitution as interpreted by the United States Supreme Court.
Suppression not required when interrogation done at suspect's workplace
Internet Crimes Against Children investigators identified Bassignani’s workplace email address as a conduit for downloading child pornography. Investigators learned from coworkers that Bassignani had installed Window Washer software that wiped the hard drive at intervals and deleted Internet browsing history. Investigators went to Bassignani’s office and asked him to step away from his computer and accompany them to a conference room. Bassagnani was escorted into the conference room and allowed to choose his seat at the table. The investigator told him that he was not under arrest and that he would walk out of the room at the end of the interview. The investigator did not specifically tell Bassagnani that he was “free to leave.” During the questioning in the conference room, Bassignani told the investigators where his car keys could be found. Other investigators searched Bassignani’s home computer, office computer and car. They found child pornography and wiping software. During the interview, Bassagnani admitted to downloading child pornography. At the conclusion of the interview, Bassagnani left the room and he was not arrested.
Bassagnani asked the court to suppress his statements, claiming that he was “in custody” for purposes of Miranda v. Arizona, 384 U.S. 436 (1966) and that the lack of warnings rendered the evidence from the interview inadmissible. Under Miranda and its progeny, a suspect is considered to be in custody if a reasonable person in the same circumstances would believe that his or her liberty was curtailed to the degree associated with a formal arrest. The Ninth Circuit, similar to other courts, looks at a number of factors to determine whether a person is in custody. These factors include: “(1) the language used to summon the individual; (2) the extent to which the defendant is confronted with evidence of guilt; (3) the physical surroundings of the interrogation; (4) the duration of the detention; and (5) the degree of pressure applied to detain the individual.” These are not necessarily exclusive factors. Though the trial court found that Bassagnani was in custody, the appellate court reversed.
The appellate court observed that Bassagnani was interviewed in a place familiar to him, the workplace conference room. A couple of persons came and went during the interview, suggesting that Bassagnani was, in fact, free to leave. The investigator told Bassagnani that they had traced child pornography downloads to his laptop, but did not directly confront him with that evidence. There was not pressure on Bassagnani to confess. The court noted that the entire two and one-half hour interview was conducted in an “open, friendly tone.” (Talk nice, think mean!) Though the interview lasted a significant amount of time, suggesting custody, it was not a “marathon interrogation” designed to coerce a confession. Given the totality of the circumstances, the appellate court could not conclude that he was interviewed in circumstances that a reasonable person would associate with a formal arrest. United States v. Bassignani, --- F.3d ----, 2009 WL 764562 (9th Cir. 2009).
MIstaken broadcast of warrant leads to gun arrest, but no suppression
Groves was a suspect in shooting several rounds into a home. The investigating officer consulted with a prosecutor and then issued a “wanted bulletin” indicating that the prosecutor would be preparing an arrest warrant. A month later, an anonymous tipster called police and reported seeing Groves. The dispatcher broadcast the information, including erroneously broadcasting that a warrant had been issued for Groves. A responding officer saw Groves driving and stopped him. The officer saw a gun under Groves’ seat. He arrested Groves for being a felon in possession of a gun. Groves challenged the arrest on the basis of the mistaken information that there was a warrant for his arrest. The court of appeals agreed that Groves detention and the discovery of his gun were unlawful because there was no actual arrest warrant. Relying on the recent U.S. Supreme Court case of Herring v. United States (see Xiphos 2009), the court held that suppression of the gun was not the appropriate remedy for the dispatcher’s mistake. “There is nothing in the record to suggest that the South Bend Police Department recklessly disregarded constitutional requirements or that any police personnel knowingly falsified a warrant record.” Thus, Groves’ conviction was upheld. United States v. Groves, --- F.3d ----, 2009 WL 692120 (7th Cir. 2009).
Causing another to touch himself during child pornography production qualifies for federal sentencing enhancement
Robert Shafer and his partner and co-defendant, Kurt Amundson, operated a state-licensed foster care home for boys. Shafer and Amundson held nude hot tub encounters with the boys. Shafer also took photos of the nude boys. Shafer had a sexual relationship lasting five or six years with one of the boys, beginning when the boy was eight years old. During one of the sexual encounters, Shafer persuaded the 11 year-old boy to masturbate himself during videotaping. Shafer was charged under 18 U.S.C. § 2246(3), which defines “sexual contact” as “the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” The intentional touching is a sentencing enhancement. Shafer was sentenced to 30 years. For the first time by any court, the court of appeals held that “intentional touching” could include enticing another person to touch his or her own genitalia, anus, groin, breast, inner thigh, or buttocks with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person. United States v. Shafer, 557 F.3d 440 (6th Cir. 2009).
Once warrantless stand-off lawfully begins, officers need not stop to obtain a warrant
In a case reported in Xiphos 2008, I noted that the decision in Fisher v. City of San Jose was likely to be quickly overruled and now it has been. A news headline recently reported that the Ninth Circuit Court of Appeals continues its two-decades plus reign as the nation’s most frequently-reversed court. This case, however, was corrected by an en banc hearing of the court, meaning that a larger group of the judges of the Ninth Circuit considered the case.
Fisher began the evening of October 23 in his apartment, drinking beer, watching the World Series on television, and cleaning his collection of eighteen bolt-action World War I and II era rifles. When the game ended, Fisher continued cleaning his weapons and drinking his way through the two cases of beer he had purchased earlier that day. From time to time, Fisher took a break to read from a book entitled The Second Amendment Primer. A security guard responded to noise complaint. Fisher, highly intoxicated, became agitated and pointed a rifle in the guard’s direction. The guard left and called police. Responding officers saw Fisher loading cartridges into a heavy caliber rifle. Fisher told officers that he would kill them if they approached his home. Officers used negotiators, gas and noise/flash distraction devices to encourage surrender. About 12 hours into the stand-off, Fisher agreed to come out and surrender. He began to walk toward officers, then suddenly turned and ran back toward his home. An officer shot him in the leg with a less-lethal projectile and Fisher was arrested. At no time during the stand-off did the officers go to the local courthouse to swear out an arrest warrant.
The parties in the civil suit agreed that Fisher was seized inside his home by police, thus placing the burden on police to obtain a warrant or show that an exception to the warrant requirement existed. Fisher agreed that there was ample cause to arrest him. There were several occasions when Fisher aimed rifles at various officers and he threatened to kill officers. Amazingly, no officer shot Fisher during any of these multiple incidents. Fisher argued that officers are required to assess the exigent circumstances doctrine “each passing minute” during a stand-off. A panel of the Ninth Circuit Court of Appeals initially held in Fisher’s favor, ruling that the initial exigency had dissipated and that police should have obtained a warrant prior to taking action to secure Fisher.
The entire Ninth Circuit reversed and held that once police lawfully begin a warrantless standoff initiated by a suspect’s actions, the officers do not need to stop and obtain a warrant, even if the standoff continues and there are lulls in the action that might permit some of the officers to leave their posts and obtain a warrant. “We conclude that once exigent circumstances and probable cause justified Fisher's seizure, police were not required to obtain an arrest warrant despite the fact that they did not take Fisher into full physical custody until hours later.” The Ninth Circuit held that to rule otherwise would be to place a “dangerous burden” on police. The decision narrowly divided in a 6-5 vote by the participating judges. Because of the narrow split, the case may be primed for an appeal to the United States Supreme Court, though it is unlikely that the Supreme Court would agree to consider the case. The majority opinion acknowledged that Fisher’s position would, “buckle under the weight of Supreme Court caselaw and that of our own circuit, but it further complicates the already complex and dangerous process of safely resolving armed standoffs, without providing any meaningful Fourth Amendment protection.” The majority pointed out the irony of the dissenting view, stating that it could not understand, “the logic in condoning a scheme that exposes police to civil liability when, as here, they elect to methodically respond to dangerous standoffs, but affords officers greater protection from liability if they hastily force entry with guns blazing.” Fisher v. City of San Jose, --- F.3d ----, 2009 WL 606132 (9th Cir. 2009) (en banc).
Search of paramedic's computer was not "government search"
Inman, a paramedic, was at work in the field responding to an ambulance call. Other paramedics were at the station where Inman worked. Inman’s laptop computer was on the kitchen table, turned on, but shut. Two of his coworkers were discussing Inman’s new girlfriend, but could not remember her name. One opened Inman’s computer to check for the girlfriend’s name on the instant messenger list. He saw icons that suggested child pornography, opened the files and viewed three explicit videos of children engaged in sex. The next day, after some discussion with other paramedics, the coworker told an investigator about the videos. The investigator obtained a search warrant for Inman’s computer. Presented with the warrant, Inman consented to a search of his home. In addition to the child pornography on his computer, officers found a DVD with child pornography in the home.
Inman asked the court to suppress the warrant and the subsequent searches. He alleged that his coworkers, all employed by the government and one of whom was a supervisor, were government agents that searched his computer illegally. However, just because the persons who examined the computer and found the child pornography were civil servants does not necessarily mean that the Fourth Amendment is implicated. In this case, the court held that the search was conducted by a private citizen and therefore Inman’s Fourth Amendment rights were not violated. The court considered “whether the government had knowledge of and acquiesced in the intrusive conduct; whether the citizen intended to assist law enforcement agents or instead acted to further his own purposes; and whether the citizen acted at the government's request.” When a defendant claims that the searching party was a government actor, the question of the searching party’s intent is particularly important. Other courts have held that the searching party’s intent, i.e., whether the searching party intended to advance government interests or private interests, is the pivotal question in deciding whether the Fourth Amendment applies to the search. United States v. Attson, 900 F.2d 1427 (9th Cir. 1990). In this case, the two snooping paramedics were curious about Inman’s girlfriend. They had no intent to find any evidence or any information that might be helpful to a government investigation. In fact, once they found the child pornography, they were initially hesitant in reporting it to police. Thus, the initial discovery of the child pornography did not violate the Fourth Amendment and the evidence was admissible against Inman. United States v. Inman, --- F.3d ----, 2009 WL 538717 (8th Cir. 2009).
Miranda waiver elements of voluntariness and knowledge measured from officer's perspective
Garner found a woman’s purse near a pay phone in hospital emergency room. He took the purse and hailed a cab to take him to the woman’s home. There he had the cab driver wait while Garner loaded appliances and other goods from the home into the cab. Garner saw 6 children sleeping in the home. He explained to the cab driver that his girlfriend was evicting him from the home. After Garner loaded the cab, he set several fires in the home. All but 1 of the children died in the fire. Officers located Garner through the cab driver (who had accepted a TV set as the cab fare). Garner admitted to the theft and to setting the fires, explaining that he thought that the children would escape alive.
Garner claimed that his confession should not have been admitted because he lacked the mental capacity necessary to provide a valid waiver of his Miranda rights. Garner introduced evidence that he was on the border of mental retardation. An expert testified that Garner “appeared to be of near average intelligence” and “appeared to be able to understand all questions and material presented to him.” The Court of Appeals determined that the appropriate test was whether Garner showed discernable signs to police that he was incapable of understanding the warnings that the officers provided. The court derived this test from its interpretation of Colorado v. Connelly, 479 U.S. 157 (1986). In Connelly, the Supreme Court held that a confession given by a man who believed that God told him to confess was admissible because there was no “substantial element of coercive police conduct.” In a case decided shortly after Colorado v. Connelly, the Court explained that the analysis of a Miranda warning has two components: voluntariness and comprehension. If the totality of the circumstances show that the waiver was the product of a free and deliberate choice, and not intimidation and coercion, and the waiver was made with full awareness of the right being surrendered and the consequences of that surrender, then the court should find a valid waiver. Moran v. Burbine, 475 U.S. 412 (1986). In the Garner case, the Court of Appeals held that each of these two components be examined from the perspective of the officers conducting the interrogation.
In this case, the totality of the circumstances did not suggest to police that Garner was not able to understand the Miranda warning and give a knowing waiver. Therefore, his confession was admissible. “Even if Garner's mental capacity, background, age, and experience did somehow prevent him from actually understanding the Miranda warnings—and the evidence indicates that they did not—the officers questioning Garner had no way to discern the misunderstanding in Garner's mind.” Garner v. Mitchell, --- F.3d ----, 2009 WL 510541 (6th Cir. 2009).
Utah Court of Appeals invalidates telephonic search warrant due to judge's failure to follow procedural rule
An officer arrested Dominguez for DUI. Dominguez refused to provide a breath test or perform field sobriety tests. The officer obtained a telephonic search warrant from a judge. However, the judge did not keep a recording of the telephone conversation in which he ordered the officer to conduct a search by drawing Dominguez’s blood. The Utah Court of Appeals held that Rule 40 of the Utah Rules of Criminal Procedure requires the judge, not the officer, to retain the recording. The rules provides: “At the time of issuance, the magistrate shall retain and seal a copy of the search warrant, the application and all affidavits or other recorded testimony on which the warrant is based and shall, within a reasonable time, file those sealed documents in court files which are secured against access by the public.”
Dominguez did not contest the sufficiency of probable cause. Dominguez simply argued that the judge failed to fully comply with the procedure rule. The appellate court cited rulings other courts, including the Court of Appeals for the Tenth Circuit (having jurisdiction in Utah), that held that, “unless there is a clear constitutional violation, non-compliance with [the rule] requires suppression of evidence only where (1) there was ‘prejudice’ in the sense that the search might not have occurred or would not have been so abrasive if the rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision in the rule.” Neither of those factors appeared to be present in this case. However, the appellate court noted that this was the first time that a Utah state court had considered the issue and the court predicted that the Utah Supreme Court would require rigid and undeviating compliance with Rule 40. Thus, the judge’s failure to comply with the procedural rule prompted the court to rule that the blood alcohol evidence should be excluded.
The Dominguez case presents a grand irony. Appellate courts have urged officers in Utah to seek search warrants in DUI cases, rather than rely on the exigent circumstances doctrine. Utah law enforcement training officers have responded to the courts’ requests and presented training on telephonic search warrants. For now, the impact of the Dominguez decision is that officers will have to assume the risk of the judge complying with the procedural rule by preserving a copy of the recorded conversation in which the telephonic warrant is issued. It is not enough that the officer make and preserve a recording. Until the rule or statute is changed, or until and if the Supreme Court reviews the Dominguez decision, officers in areas with the availability of E-warrants should use the E-warrant system whenever possible, in place of a telephonic warrant. State v. Dominguez, --- P.3d ----, 2009 WL 706662 (Utah App. 2009).
Officer properly ordered driver out to facilitate dog sniff; no suspicion required to sniff where stop was not extended
Officers stopped Bell for speeding. Bell was driving a rental car, though his name was not on the contract. The officer speaking with Bell suspected that he was transporting illegal drugs, based on the following factors: (1) Bell repeated the same story about his destination and sounded rehearsed; (2) Bell moved too quickly for the rental agreement; (3) Bell was holding a cell phone; (4) Bell did not make eye contact with the officer at his window; and, (5) Bell was overly respectful and cooperative. A K9 handler was working in the area and the officers called for a detector dog sniff. In Illinois v. Caballes, 543 U.S. 405 (2005), the Supreme Court held that a dog sniff may be performing during a routine traffic stop without improperly exceeding the scope of the traffic stop. However, the sniff cannot unreasonably prolong the duration of the traffic stop without reasonable suspicion of drug possession.
The K9 unit arrived at the scene approximately 10 minutes after the stop began. The officers ordered Bell out of the car at the request of the K9 handler because the handler preferred to conduct sniffs of cars without occupants. The dog was deployed approximately 12 minutes after the stop began. During the sniff, the first officer continued to talk with Bell about the traffic violation and the issue with driving a car rented in someone else’s name. Within 38 seconds of beginning the sniff, the detector dog provided a final response, communicating the presence of the odors of controlled substances. The officers found four bags of crack cocaine over the right rear wheel well. Bell asked the court to suppress the evidence, claiming that the dog sniff was conducted without reasonable suspicion to extend the scope of the detention. Bell also argued that the officers shifted focus from a traffic stop to drug interdiction when they ordered him get out of the car to facilitate the dog sniff.
The Court of Appeals agreed with Bell and held that there was no reasonable suspicion of drug possession. The court also disagreed with the prosecution’s claim that the dog sniff was permissible because it was completed within the time of an “average” traffic stop. “The proper inquiry is whether Bell was detained longer than reasonably necessary for the officers to complete the purpose of the stop in this case.” The court found that the officers continued to deal with the traffic violation contemporaneously with the dog sniff. The court held that ordering Bell out of the car to facilitate the dog sniff did not fundamentally alter the scope of the traffic detention. “We simply cannot conclude that an officer violates the Fourth Amendment merely by asking a driver to exit a vehicle to effect a dog sniff when doing so does not extend the duration of the stop and does not cause the officer unreasonably to deviate from the purpose of the initial stop.” United States v. Bell, --- F.3d ----, 2009 WL 363640 (6th Cir. 2009).
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