Taser use found excessive in wrongful death suit Responding to a report of bulldozer blocking the highway, an officer saw Keiser climbing up a front end loader.  Keiser fled on foot and the officer chased him.  A back up officer joined the chase.  Tackling Keiser, the officers attempted to handcuff him.  Keiser grabbed an officer by the throat and choked him.  The other officer struck Keiser with a baton and sprayed OC spray.  Keiser let go of the throat and fled.  Two more officers arrived.  Keiser ignored orders to take his hands out of his pockets and an officer fired a Taser.  The Taser had little or no effect and Keiser pulled out the probes.  The officers rushed Keiser, striking him with a baton, applying several Taser drive stuns and knocking him down.  For a few moments as the officers were struggling to handcuff Keiser, his head was submerged in muddy swamp water.  When they were able to cuff and pull Keiser erect, he was not breathing.  Though the officers applied CPR, Keiser was pronounced dead.  His surviving daughter sued.   Asked to grant qualified immunity to the officers, the court was required to interpret the facts in favor of Keiser.  Qualified immunity requires the following analysis:  First, do the facts viewed in the light most favorable to the plaintiff show that a constitutional violation has occurred.  Second, was the violation alleged a clearly established constitutional right of which a reasonable officer would have known.  Third, did the plaintiff show sufficient evidence that what the officer allegedly did was objectively unreasonable in light of the clearly established constitutional rights.  In this case, the judge concluded (analyzing the facts favorable to Keiser) that the Taser stuns constituted excessive force because Keiser was unarmed, suspected of a minor crime, surrounded by four officers and had ceased resisting forcibly.  Though the case law on Taser use is sparse (but rapidly developing), the judge compared the Taser use to pepper spray.  The judge relied on prior cases to rule that the excessive use of pepper spray amounted to a constitutional violation of which a reasonable officer would be aware.  Thus, the court refused to grant qualified immunity and ordered the matter to advance to a trial.  Of course, a jury may reach an entirely different conclusion when additional facts are presented and witnesses testify.  Officers should take note that the court relied on pepper spray cases in analyzing Taser use.  Landis v. Cardoza, 515 F.Supp.2d 809 (E.D. Mich. 2007).   Deputy sued for faulty search incident to arrest   A deputy stopped Brown for a headlight violation.  When Brown could not find his driver license, the deputy arrested Brown and placed him in his patrol car.  He searched Brown’s truck and found Brown’s wallet in a briefcase.  He searched the wallet and found Brown’s driver license.  As the deputy drove Brown to the jail to be booked for refusal to show his driver license, another deputy again searched Brown’s truck.  Brown sued, claiming that his 4th Amendment rights were violated.  The court granted immunity for Fisher for the first search because the search was a valid search incident to arrest.  The court of appeals expressed some concern over the driver license arrest because the first deputy found Brown’s license for him.  However, the court found that the arrest could have been valid because of the headlight violation.  The court refused to enter summary judgment and extend qualified immunity to the deputy conducting the second search.  Because the search was conducted after the arrest and after Brown was removed from the scene, the court ruled that it was not a search incident to arrest.    This case reminds officers that an improper search can lead not only to suppression of evidence, but also to a civil suit for constitutional violations.  A search incident to arrest is valid when the search is substantially contemporaneous to the arrest and where the arrestee is detained on-scene at the time of the search.  Brown v. Fisher, 2007 WL 3011051 (10th Cir. 2007).   "No insurance found" computer check justifies traffic stop leading to DUI arrest   An alert and creative trooper was stopped behind Snedeker’s car at a red light.  The trooper ran a computer check on Snedeker’s license plate and received a “no insurance found” result.  The trooper stopped Snedeker and Snedeker was able to produce proof of insurance.  However, the trooper detected alcohol on Snedeker’s breath.  Snedeker was ultimately arrested for DUI.  He challenged his conviction on the basis for the stop.    A number of courts have ruled that stops based on computer checks showing improper registration or driver license status are reasonable, even where the information later is shown to be faulty.  These courts have reasoned that the validity of registration databases are sufficiently current and accurate to provide reasonable suspicion for a Level II investigative traffic detention.  United States v. Miguel, 86 Fed. Appx. 342 (9th Cir. 2004) (stop was reasonable where officer relied on possibly inaccurate computer report of expired registration); Ingram v. City of Los Angeles, 418 F.Supp.2d 1182 (C.D. Cal. 2006) (stop proper when based on confusing computer information implying that car might be stolen); United States v. White, 1999 WL 1939263 (M.D.N.C. 1999) (stop based on “registration not on file” was reasonable, even though officer caused error when he mistook Georgia plate for South Carolina plate), aff'd 201 F.3d 439 (4th Cir. 1999); State v. Muller, 698 N.W.2d 285 (S.D. 2005) (stop reasonable though based on erroneous information relayed by police dispatch that suspect's license plates and registration had expired); Commonwealth v. Van Winkle, 880 A.2d 1280 (Pa. Super. 2005) (stop proper though computer improperly showed that suspect’s plates belonged on another car).  Courts have also sustained stops based on inaccurate information concerning driver license or arrest warrant status.  United States v. Coplin, 463 F.3d 96 (1st Cir. 2006), (stop proper when MDT showed that suspect had both a valid license and then showed he had a suspended license), cert. denied, ___ U.S. ___ 127 S.Ct. 1320, (2007).   Stops based on “no insurance found” have been met with mixed results.  Though most courts have upheld these stops as valid, they have generally done so after the prosecution showed that the insurance database was reasonably reliable.  The Utah Court of Appeals recently upheld a stop based a “no insurance” result when the prosecution presented evidence that the database, operated by the private firm InsureRite, was frequently updated and had at least a 98% accuracy rate.  State v. Biggs, 167 P.3d 544 (Utah App. 2007).  Other courts have not upheld stops based on insurance checks where the evidence did not show that the database was reliable. State v. Dixson, 633 S.E.2d 636 (Ga. App. 2006).  In Snedeker’s case, even though he was able to show that he did have insurance at the time of the stop, the court found that the trooper was justified in relying on the insurance database to make the stop.  The court refused to suppress the stop.  Snedeker v. Rolfe, --- P.3d ----, 2007 WL 4441186 (Utah App. 2007).   No warning prior to Taser use, no statement of intent to arrest exposes officers to liability   Casey lost a traffic case in court.  He asked to appeal and the judge gave him his file to take to the clerk’s office, so that he could pay the fine.  Casey was accompanied by his 8 year-old daughter.  As she went into the bathroom, Casey went to the parking lot to get money from his truck.  An unidentified person told Casey that he could not take the file from the building.  Casey replied that his daughter was in the bathroom and he would return immediately.  The person told an officer that Casey had removed the file.  When Casey returned, the officer confronted Casey.  Casey offered the file to the officer, but the officer did not take it.  Casey attempted to go around the officer to the clerk’s office to pay the fine.  The officer grabbed Casey’s arm.  Casey pulled away and the officer jumped on Casey’s back, taking him to the ground.  A second officer arrived and fired a Taser into Casey.  Two other officers joined the fray.  One fired a drive stun into Casey.  The first Taser was fired again, shocking one of the officers who told the firing officer to “put that thing away.”  Casey eventually pled guilty to a minor misdemeanor charge and then sued the officers for excessive force.   The trial court ruled that the officers had used appropriate force, or in the alternative, had used force that was not clearly unconstitutional at the time of the incident.  The Court of Appeals reversed, applying the use of force evaluation factors of Graham v. Connor.  Because the trial court had granted summary judgment, the court of appeals was limited to reviewing the facts in the light most favorable to Casey, not the officers.  A full trial may show additional or contrary facts that significantly impact the ultimate resolution of the suit.  The court surmised that the arrest was for a minor misdemeanor (removing the file temporarily from the court house); Casey was not actively resisting the officer at the time that the officer grabbed his arm and jumped on his back, and that Casey presented no threat to the public or officers at the time of the initial encounter.  The court did not believe that Casey gave the officers any reason to fear and noted that none of the officers ever told Casey that he was under arrest.    The Court of Appeals refused to extend qualified immunity to the officers, and ruled that the backup officers could be liable for failure to protect Casey against the continued unlawful force.  The judges specifically cited the application of the Taser without any verbal warning and without any notice of intent to arrest as a basis for the Taser-firing officer’s potential liability.  The judges concluded that there were no tactical or practical reasons to not give a warning before applying the Taser.  “We do not know of any circuit that has upheld the use of a Taser immediately and without warning against a misdemeanant like Mr. Casey. Therefore, [the officer] is not entitled to qualified immunity from this excessive force suit.”   The decision from the Court of Appeals highlights that it is good practice to clearly communicate the officer’s intent to arrest and that an officer should carefully consider verbal warnings prior to Taser application.  At least in the Tenth Circuit (which includes Utah), failure to give warnings where tactically and practically reasonable may lead to liability for Taser use.  Casey v. City of Federal Heights, --- F.3d ----, 2007 WL 4296338 (10th Cir. 2007).   Religious symbols not relied on to find reasonable suspicion of drug trafficking   A trooper stopped Garvin for following too closely (turns out that he was traveling in tandem with his fiancé).  As the trooper spoke to Garvin, he observed a large crucifix on the seat next to Garvin, a Bible on the dashboard, an air freshener hanging from the rear-view mirror, and a dryer sheet laying on the floor.  He also smelled a strong odor of air fresheners and dryer sheets emanating from inside the vehicle.  He noted that Garvin was unusually nervous.  Garvin was driving a rental vehicle, and the rental was overdue for return.  Garvin was driving from a drug source area to Chicago, a distribution point.  Garvin also avoided eye contact when asked about drugs. The trooper issued a warning citation to Garvin and called for a drug detector dog.  The dog gave a response indicating the odor of illegal drugs.  The trooper found 28 pounds of marijuana in Garvin’s vehicle.  Garvin claimed that the detention to await a drug dog was not based on reasonable suspicion.   The presence of religious symbols may be used by couriers as implicit “good person” indicators (suggesting that the driver is not carrying illegal drugs).  The Tenth Circuit has previously discounted the value of religious symbols in establishing reasonable suspicion.  United States v. Guerrero, 472 F.3d 784 (10th Cir. 2007).  The trial court relied, in part, on the Bible and crucifix to find reasonable suspicion.  The Wyoming Supreme Court agreed that there was reasonable suspicion to detain the vehicle for a dog sniff, but disregarded the religious symbols in the calculation of reasonable suspicion.  Garvin v. State, --- P.3d ----, 2007 WL 4258209 (Wyo. 2007).   Religious symbol (unofficial saint of drug dealers) gets its own beer brand   Will possession of an open container of drug dealer saint's beer support reasonable suspicion of drug possession?  Jesus Malverde is considered a Mexican Robin Hood and the patron saint of Sinaloan drug lords.  Minerva, a Mexican brewing company, is paying honor to the drug trafficking saint with a beer marketed in Sinaloa province.  Sinaloa is one of Mexico’s most drug-infested provinces, where drug lords operate with ferocity.  Malverde was executed for his crimes in 1909.  A chapel was later built to venerate and honor him.  The Roman Catholic Church does not include Malverde in the official list of venerable saints.   Peeking at suspect's crotch exceeds limits of consent to search   An officer spotted a car at 0300 in an area known for drug sales and prostitution.  He followed the car, noted that it was speeding, and stopped behind the car when the driver parked.  He saw Stone, the passenger, sliding about on the seat.  He asked Stone for identification and recognized Stone as one known for drug trafficking.  He asked whether Stone was holding any illegal drugs.  When Stone said that he was not, the officer asked for consent to search.  After finding a large amount of cash in Stone’s sweat suit pocket, the officer pulled Stone’s waistband away from his body, shined a light on Stone’s genitals and saw a pill bottle tucked under Stone’s testicles.  The North Carolina Supreme Court ruled that the officer exceeded the scope of Stone’s consent.  In Florida v. Jimeno, 500 U.S. 248 (1991), the U.S. Supreme Court stated that “the standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of ‘objective’ reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect?”  The court concluded that a reasonable person would not have understood his consent to include a genital inspection in a public parking lot.  The contents of the pill bottle were suppressed.  Comments in the decision suggested that the result might have been different if the officers had taken steps to shield the exam from public view (even though there was no evidence that anyone other than the two officers could see Stone’s genitals).  State v. Stone, --- S.E.2d ----, 2007 WL 4276560 (N.C. 2007).   No expectation of privacy in back yard when creating a public disturbance at 0400   Deputies went to Dunn’s house at 0400 in response to a noise complaint.  They saw that the house was dark, but saw smoke from a bonfire in the back yard.  Deputies went around the side of the house, saw several people near the fire and saw that a truck with open doors was playing loud music.  The deputies spoke with Dunn when he identified himself as the person hosting the party.  They discovered an arrest warrant for Dunn, arrested him, and found drug paraphernalia during the search of Dunn’s person incident to his arrest.  Dunn challenged the arrest and search, claiming that the deputies’ entry onto his property without a warrant was unreasonable.   The Montana Supreme Court found that Dunn had no reasonable expectation of privacy in his backyard while disturbing neighbors at 0400.  Dunn’s “very public act” of disturbing the peace was at odds with his claim of an expectation of privacy.  Thus, the deputies’ intrusion was reasonable.  The court observed that the deputies followed the driveway to the back yard, the same path that any visitor might take.  They did not climb fences or pass “no trespassing” warnings.  Moreover, a crime was in progress when they arrived (the loud music audible from the road and the neighbors’ homes).  Once the deputies followed the path of public access to Dunn’s home, they saw the truck that was the source of the loud music.  State v. Dunn, --- P.3d ----, 2007 WL 3349493 (Mont. 2007).   Walk nice, talk mean?   An officer saw Garry standing by a car late at night in an area known for drug and violent crime.  The officer illuminated Garry with the patrol car spotlight and rapidly approached Garry.  The officer asked Garry whether he was on parole or probation (California allows officer to conduct searches of parolees and probationers).  Garry began to flee and the officer forced him to the ground, searched him, and found several baggies of cocaine.  Garry sought to suppress the cocaine on the grounds that the initial detention was not supported by reasonable suspicion.  Garry claimed that he was “seized” at the moment that the officer both spotlighted him and approached him “briskly.”  The court agreed and ordered suppression.  Citing the spotlight, the officer's rapid approach, and the immediate discussion about parole status (as opposed to asking the purpose of being in the neighborhood, etc.), the court noted: “We think only one conclusion is possible from this undisputed evidence: that [the officer's] actions constituted a show of authority so intimidating as to communicate to any reasonable person that he or she was not free to decline [his] requests or otherwise terminate the encounter.”  People v. Garry, --- Cal.Rptr.3d ----, 2007 WL 3342586 (Cal. App. 2007).   Utah court follows U.S. Supreme Court rulings on automobile search exception   Despain was weaving as he drove and he crashed into a parked trailer.  The officer responding spoke with Despain and did not smell alcohol, but noted that Despain’s speech was slurred.  Several witnesses told the officer about Despain’s highly erratic driving.  Another officer arriving at the scene described Despain’s behavior as “panicked.”  Because paramedics were about to transport Despain, the officer did not administer field sobriety tests.  En route to the hospital, Despain acted paranoid about his car and told paramedics that he had locked it to prevent anyone from getting into it.  Paramedics relayed this information to the officers.  Two persons arrived at the crash scene.  Claiming to be relatives of Despain, they began to remove a backpack from the car.  The officers retrieved the backpack, searched the car, and found distribution quantities of marijuana and methamphetamine.  The officers arrested Despain after the search of the car.   Despain claimed that there was no probable cause for his arrest and that the search was illegal.  The court found that the highly erratic driving pattern described by the witnesses, Despain’s slurred speech, and the crash itself, gave the officer probable cause to arrest Despain for driving under the influence.  Though the trial court allowed the search under the inevitable discovery doctrine (perhaps assuming that there would be an inventory or a search incident to arrest), the court of appeals upheld the search under the automobile exception to the warrant requirement.  The court found that the erratic driving pattern, Despain’s paranoid behavior about excluding persons from the car, and that persons were called to the scene to remove the backpack, gave the officers probable cause to search.  The court observed that the mobility of the crashed vehicle was not a critical issue.  “Even in cases where an automobile is not immediately mobile, the lesser expectation of privacy resulting from its use as a readily mobile vehicle justifies application of the vehicular exception.”  In prior cases, Utah courts have ruled that the automobile search exception requires both a mobile vehicle and a reasonable belief that the evidence will be compromised by the delay required to obtain a warrant.  Recognizing the U. S. Supreme Court cases that have further clarified this exception, the Utah Court of Appeals observes that the automobile exception does not require a likelihood that the evidence will be destroyed or removed if there is a delay to obtain a warrant, and that mobility is not an absolute prerequisite to an automobile exception search.  State v. Despain, --- P.3d ----, 2007 WL 3407328 (Utah App. 2007).   Second interrogation, following invocation of right to silence, held valid   Dewey and her husband became intoxicated at a bar and were ejected when they created a disturbance.  They continued to argue in the parking lot.  Dewey stabbed her husband.  She later called the police.  Three times during the 911 call, she told police that she did not know who stabbed her husband.  Not a suspect at the time, Dewey was interviewed at the police station.  The officer read each Miranda right one line at a time.  Dewey asked whether she was a suspect.  When the officer said that she was, she invoked the right to remain silent.  The interrogation immediately ceased and Dewey was arrested.  Two hours later, another officer initiated a conversation with Dewey, repeated the Miranda warning, and asked Dewey if she would speak with her.  Dewey consented, and signed a waiver form.  Dewey provided inculpatory answers during the second interrogation and accurately told officers where they would find the murder weapon (in her truck under the seat).  The next day, officers tried a third interrogation, but Dewey invoked her right to counsel.   Dewey claimed that her Miranda rights were violated and asked that the second interrogation be suppressed.  The court found that the second interrogation was properly conducted.  Under the Miranda decision, the invocation of the right to an attorney stops the interrogation, and officers may not reinitiate an interrogation (though the suspect may do so).  In Michigan v. Mosley, 423 U.S. 96 (1975), the Supreme Court ruled that officers may attempt another interrogation following the invocation of the right to remain silent, within certain parameters.  The Court listed the following factors to consider:  whether the police promptly stopped the first interrogation following the rights invocation, the length of time between the invocation and the second interrogation, whether the interrogations were conducted by different officers investigating different offenses, and the administering of a new Miranda warning before the second interrogation.  In Dewey’s case, the court stated that each of these factors need not be fully satisfied in order to admit the second interrogation.  "Neither the amount of elapsed time nor the identity of subject matter of the interview are of primary importance."  The court should consider the totality of the circumstances to determine whether officers “scrupulously honored” the first invocation of the right to remain silent.  Even though the subject of the second interrogation was the same as the first aborted interrogation, there was a “significant amount of time” (2 hours) between the two interrogations and the second officer provided a fresh Miranda warning.  Dewey v. State, --- P.3d ----, 2007 WL 3197227 (Nev. 2007).   Warrantless probation search ruled unlawful   Officers went to Jones’ house with an arrest warrant to arrest him on four counts of murder.  They did not have a search warrant.  Jones was on probation, though apparently on informal court probation.  A probation officer accompanied the officers.  They found Jones, arrested him and searched his residence.  Jones appealed the trial court’s refusal to suppress evidence taken in the warrantless search.  The prosecution asserted that Jones’ probation status justified the warrantless search.  The Georgia Supreme Court disagreed, ruling that Jones’ status as a probationer does not diminish his expectation of privacy to the point of making such searches "reasonable" under the Fourth Amendment, unless there is an explicit condition of probation authorizing warrantless searches.   In United States v. Knights, 534 U.S. 112 (2001), the Supreme Court allowed a search under a condition of probation authorizing suspicionless searches of a probationer’s home.  The Court based its ruling on the probationer’s reduced expectation of privacy.  The state interest in preventing the probationer from committing new crimes outweighed the probationer’s privacy.  Thus, no warrant was required and a home search could be based on simple reasonable suspicion.  Five years later, in Samson v. California, 126 S.Ct. 2193  (U.S. 2006), the Supreme Court held that officers may conduct a warrantless, suspicionless search pursuant to a search condition contained in the supervision agreement that authorized any peace officer to conduct a search at any time for any (or no) reason.  The Georgia court did not view either the Knights or Sampson cases as going so far as to authorize a warrantless search based solely upon probation status.  Jones v. State, --- S.E.2d ----, 2007 WL 3130439 (Ga. 2007).   NOTE:  In the 2008 Legislature, the legislators will be asked to pass a statute authorizing Utah peace officers to search parolees (but not probationers).  Some courts have ruled the probation status for certain offenses can justify a warrantless search, even without an express provision in a supervision agreement.  United States v. Yuknavich, 419 F.3d 1302 (11th Cir. 2005) (sex offender); United States v. Keith, 375 F.3d 346 (5th Cir.) (probation for bomb-making), cert. denied, 543 U.S. 950 (2004).  However, the federal court of appeals with jurisdiction over Utah has ruled that a warrantless probation search must be particularly authorized by the probation agreement.  United States v. Freeman, 479 F.3d 743 (10th Cir. 2007).    Officer mistakes Glock for Taser and shoots suspect   An officer saw Henry driving and followed him to his home to serve an arrest warrant for child support arrears.  When the officer approach Henry and told him to get out of the truck, he fled.  The officer, intending to draw and fire a Taser, mistakenly drew his Glock handgun and shot Henry as he ran.  Henry sued.  Though the officer claimed that he had not seized Henry because he did not intend to shoot him, the court disagreed.  However, the court of appeals ruled that the officer might be entitled to qualified immunity if the officer reasonably believed that using the Taser was proper.  The court of appeals remanded the case to the trial court to consider the nature of the Taser training to prevent incidents like this from happening, whether the officer acted in accordance with that training, whether the officer would have discovered that he was holding a handgun rather than a Taser if, as he apparently had been trained to do, he had attempted to flip the thumb safety device on what he thought was the Taser, and whether his prior encounters with Henry impacted his actions.  Henry v. Purnell, --- F.3d ----, 2007 WL 2729126 (4th Cir. 2007).   Officers immune from suit in pepper spray use   An officer stopped Mecham for speeding and a seat belt violation. The officer learned that Mecham’s Arizona driver license was suspended.  The officer told Mecham that she could not drive and that her car would be impounded if she could not get a licensed driver to promptly come and drive the car away.  As the officer spoke with Mecham,  Mecham’s mother called on a cell phone.  The officer told Mecham to hang up the phone and speak with him.  She did not.  He warned her again, and she refused to end her call.  He called for a tow truck and another officer.  Mecham refused to get out of the car, saying that she would sit in the car until her mother arrived.   When the backup officer arrived, the officer warned Mecham that she would be forcibly removed from the car if she refused to get out.  She did not move.  The officer opened the door and sprayed pepper spray into her face.  He then pulled her from the car, assisted by the second officer, placed her on the ground and handcuffed her.  Mecham sued, claiming excessive force.  She claimed that she doubted that the officer was a genuine officer, even though both he and the backup officer were in uniform and there were two marked patrol cars on scene.  Though the trial court declined to grant qualified immunity from suit to the officers, the court of appeals reversed and the suit was dismissed.   An officer is entitled to qualified immunity, meaning that the suit against the officer cannot proceed, unless the plaintiff can meet the heavy two-part burden by showing: (1) the officer violated a constitutional or statutory right, and (2) the right was clearly established at the time of the officer’s allegedly unlawful conduct.  In the Tenth Circuit (as well as a few others) this “heavy” burden essentially shifts the burden to the plaintiff once the officer claims the protection of qualified immunity.  In excessive force claims, a suspect's constitutional rights are not violated if the amount of force used by officers was “objectively reasonable.”  The court of appeals noted that Mecham contributed to the confusion over her licenses, refused to get out, refused to end her call, refused to relinquish the car keys, and refused the repeated requests by both officers to cooperate.  Thus, use of force to effect an arrest was a “foregone conclusion.”  Mecham’s actions made the use of pepper spray and control holds objectively reasonable and the officers were entitled to immunity from suit.  Mecham v. Frazier, 500 F.3d 1200 (10th Cir. 2007).   Court interprets "immediately apparent" requirement of plain feel doctrine An officer approached an improperly parked truck and saw the driver holding a knife.  Yamba was a passenger.  He made a furtive movement under the truck seat.  The officer frisked Yamba and felt a plastic bag with a “spongy-like substance” with buds and seeds.  The officer knew that it was marijuana after a “half-second” of feeling the item.  He arrested Yamba.  In the search incident to booking, the officer found documents used to convict Yamba of wire fraud.  Yamba claimed that the initial seizure of the marijuana was illegal, and hence the arrest and booking search were unlawful.   In Minnesota v. Dickerson, 508 U.S. 366 (1993), the Supreme Court ruled that an officer may seize an item felt during a frisk if it is "immediately apparent" as contraband.  Some courts have ruled that the immediately apparent requirement must be met based solely on the feel of the object, while other courts have allowed officers’ testimony that the appearance as contraband was determined, at least in part, by the officers’ training and experience.  The Court of Appeals said that both approaches are incorrect.  The proper question, according to the court, is "not the immediacy and certainty with which an officer knows an object to be contraband or the amount of manipulation required to acquire that knowledge, but rather what the officer believes the object is by the time he concludes that it is not a weapon."  "When determining whether the scope of a particular Terry search was proper, the areas of focus should be whether the officer had probable cause to believe an object was contraband before he knew it not to be a weapon and whether he acquired that knowledge in a manner consistent with a routine frisk."  In this case, the officer formed a probable cause conclusion that the item was contraband within the context of a routine frisk.  Thus, the marijuana was properly seized and the arrest was valid.  United States v. Yamba, --- F.3d ----, 2007 WL 3054387 (3rd Cir. 2007).   Is "disengagement" the key to transforming a traffic stop into a voluntary interdiction discussion?   An officer stopped Thompson for a headlight violation.  After obtaining Thompson’s license and registration and running a computer check, the officer told a back-up officer that he intended to ask Thompson for consent to search his car.  The officer had information that Thompson had previously been involved in illegal drugs.  Following instruction given in many drug interdiction classes, the officer returned Thompson’s documents, gave a verbal warning about the headlight, and began to walk away.  The officer then turned back and asked: "By the way, can I ask you a few questions?"  (Some refer to this as the “Lt. Columbo” tactic; Columbo often preceded the confession-eliciting question with “. . . one more thing.”)  Thompson subsequently gave consent to search and the officer found a baggie of powder and paraphernalia.  Thompson told the officer that the items came from his garage and he gave consent to search his garage.  The garage held evidence of methamphetamine manufacture.   Thompson challenged his consent, alleging that it was the product of an illegal detention.  A lower court agreed that the detention was illegal because the officer did not sufficiently “disengage” from the traffic stop before asking Thompson to answer additional questions and consent to a search.  The Kansas Supreme Court reversed, ruling that the consent was properly obtained.  The court held that the Fourth Amendment does not require an officer who has completed a traffic stop to "disengage" from the stop as a prerequisite to finding that the traffic detention had turned into a consensual encounter.  However, the court also stated that returning of driver's documents did not create a presumption that the stop had morphed into a voluntary discussion.   The U.S. Supreme Court previously rejected a bright-line rule for transforming a traffic detention into a voluntary encounter in Ohio v. Robinette, 519 U.S. 33 (1996).  The Ohio Supreme Court had ruled that an officer must recite the magic words: “At this time you legally are free to go.”  Then the officer could ask for consent to search.  The U.S. Supreme Court reversed and reiterated that detentions must be analyzed from the perspective of whether a reasonable person would feel free to leave.  In Thompson, the Kansas Supreme Court ruled that "a requirement that an officer walk away or otherwise physically 'disengage' " would "establish a bright-line rule - like requiring an officer to say 'you are free to go' - which has been rejected by the United States Supreme Court" in Ohio v. Robinette.  The court found that the encounter between Thompson and the officer had become voluntary after the return of the documents.  Key factors included the officer’s use of casual, consensual language (talk nice, think mean!!), the presence of only two officers, the absence of drawn weapons, the use of emergency lights as warning devices in the dark and not just as signals to stop and remain stopped.  State v. Thompson, 166 P.3d 1015 (Kan. 2007).   Defective Miranda warning reverses gun conviction    Officers went to an apartment where Powell was staying, looking for Powell.  The officers found Powell in a bedroom and found a gun under the bed.  They arrested Powell.  At the station, an officer gave Powell the following Miranda warning:  “You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court.  You have the right to talk to a lawyer before answering any of our questions.  If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning.  You have the right to use any of these rights at any time you want during this interview.”  The warning did not specify that Powell had the right to have an attorney present during questioning.  The court found that this failure was fatal to Powell’s conviction.  Though there is no magic language required by the Miranda decision, the right to have an attorney present during questioning is one of the specific advisements required by the Supreme Court.  Powell v. State, --- So.2d ----, 2007 WL 2935003 (Fla. App. 2007).   Repeated application of Taser held to be unconstitutional excessive force   Beaver had been smoking crack cocaine and marijuana and drinking during a 2 day binge.  An officer responding to a burglary call saw Beaver running from the scene.  The officer recognized Beaver from a prior encounter and called him by name, ordering him to stop.  Beaver did not and the officer shot Beaver with a Taser.  Beaver went down.  The officer ordered him to turn on his stomach and extend his arms.  Beaver attempted to get up and the officer tased Beaver a second time.  Beaver did not comply with orders to turn onto his stomach and the officer tased him again.  A backup officer arrived at that point.  She gave Beaver a conflicting order, telling him to get on his back.  A citizen testified that he clearly heard Beaver say “I can’t.”  The officer tased Beaver a fourth time and Beaver rolled onto his stomach, with his arms held under him.  The officer tased Beaver a fifth time and Beaver extended his arms above his head.  The officer kicked Beaver’s hands to the his side and Beaver was handcuffed.   Beaver sued, claiming that the officers used excessive force to arrest him and claiming that the backup officer failed to protect him from unnecessary force inflicted by the repeated applications of the Taser.  The court ruled that the first three Taser stuns were reasonable.  The court applied the use of force factors of Graham v. Connor and noted that: “the officer was alone with a fleeing felony suspect, who was apparently under the influence of controlled substances, who ignored his commands to stop, and who was attempting to rise and perhaps to flee.”  However, the court found that the fourth and fifth applications were unreasonable because a backup officer had arrived and would have been able to help secure Beaver without repetition of the Taser stuns.   Arrival of the backup officer diminished the “immediate threat” presented to the first officer by Beaver.  Moreover, Beaver’s statement “I can’t” showed involuntary resistance and not a willful resistance to efforts to control him.  Courts have previously held that that when no immediate threat is posed and a suspect's failure to comply may be involuntary, officers were not entitled to use force.  Winterrowd v. Nelson, 480 F.3d 1181 (9th Cir. 2007).  The court observed that the backup officer could have attempted to handcuff Beaver while the first officer held the Taser on Beaver, ready to fire again if Beaver resisted handcuffing efforts.  In addition to finding that the first officer used excessive force, the court found that the backup officer violated Beaver’s rights by failing to protect him against the excessive force.   The court concluded that the officers were entitled to qualified immunity.  At the time of Beaver’s arrest, the law was not clearly established that officers could not use force when, as in Beaver’s case, a suspect is not a threat, even if the suspect is not fully complying with the officer's commands.  A recent case decided by the Ninth Circuit Court of Appeals held just that.  Harveston v. Cunningham, 216 Fed.Appx. 682 (9th Cir. 2007) (ruling that a police officer used excessive force when he used pepper spray against a suspect who was already handcuffed and on the ground, but who was trying to roll over and stand up contrary to the officer’s orders).  In future cases, at least in the Ninth Circuit, officers in similar situations may not be protected by the qualified immunity doctrine.  This case is part of the developing case law concerning electro-muscular disruption devices.  The ruling suggests great caution in using such a device to gain compliance from a suspect who is not an imminent threat to the officer’s safety (one must readily admit that there is a genuine debate over whether the court properly concluded that Beaver was not such a threat even into the fourth and fifth application of the Taser).  Beaver v. City of Federal Way, --- F.Supp.2d ----, 2007 WL 2482094 (W.D. Wash. 2007).   Reaching into pocket during frisk justified by suspect's behavior   A hotel clerk called police to evict Inouye.  Inouye, who appeared to be intoxicated or under the influence of drugs, kept his hands in his pockets as he approached the officer.  He ignored the officer’s command to show his hands.  Based on Inouye’s red, glassy eyes and impaired behavior, as well as holding his hands in his pockets, the officer decided to frisk Inouye.  The officer testified that he had been trained that persons keeping their hands in the pockets might be an indicator of carrying a weapon and that such behavior was a “serious safety risk.”  Inouye resisted the officer’s attempt to frisk him.  Concerned about what Inouye had in his pocket, the officer reached into the pocket and found a glass meth pipe.  Inouye later sued the officer, alleging an illegal search.    The court held that Inouye’s “evasion, coupled with Inouye's drugged appearance, refusal to remove his hands from his pockets, and police department training emphasizing that weapons may well be concealed in such a case, justified the officer’s reach into Inouye's pockets once his attempt to perform a less intrusive frisk had failed.”  Although Terry searches usually should stop at a pat-down, they may be somewhat more intrusive as the situation warrants: for instance, reaching into the car window of a potentially armed suspect to remove a gun from his waistband was found to be a justifiable Terry search in Adams v. Williams, 407 U.S. 143 (1973).  The court granted summary judgment in favor of the officer and police department.  Inouye v. Kemna, 2007 WL 2669540 (9th Cir. 2007).   Thermal imaging warrant requires reasonable suspicion, not probable cause   A CI reported that he had seen a basement marijuana cultivation operation in Kattaria’s home two years prior (pretty stale info).  An investigator found that Kattaria had two prior convictions for marijuana crimes and that Kattaria’s recent home power consumption was well over twice that of the highest consumption of his immediate neighbors, and 300 times high than one of his neighbors.  With that information, the investigator obtained a warrant for fly-over thermal imaging.  In Kyllo v United States, 533 U.S. 27 (2001), the Supreme Court held that warrantless thermal imaging violated the Fourth Amendment.  However, the Court did not establish the threshold standard for obtaining a warrant.   The Court of Appeals determined that the appropriate standard for obtaining a warrant for non-intrusive thermal imaging of a residence is the Terry standard of reasonable suspicion, and not probable cause.  The court balanced “the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives.”  The court noted that thermal imaging was not only non-intrusive, but served to help confirm suspicions of illegal activity before a more intrusive search of the home.  United States v. Kattaria, --- F.3d ----, 2007 WL 2892027 (8th Cir. 2007).   HGN test requires scientific foundation for admissibility in court   McKown was arrested for DUI after she failed field sobriety tests, including a horizontal gaze nystagmus (HGN) test.  The trial judge took judicial notice that the HGN test is generally regarded as reliable.  The Illinois Supreme Court reversed that ruling, stating that HGN evidence is inadmissible until the prosecution provides an evidentiary foundation showing that the HGN test satisfies the standard for admissibility of novel scientific evidence set out in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).  Some state courts have ruled that HGN testing is no different than other observational field sobriety tests and requires no scientific foundation for consideration in court.  Most states that have considered the issue agree with the Illinois court and rule that the HGN test must meet the Frye test for scientific testimony.  Other state courts have found that the HGN test is scientific, but have allowed the evidence without a foundation, taking judicial notice of its reliability and validity.  The Illinois court ruled that the science behind the test is not the real issue.  Because the HGN test requires interpretation by a trained officer, it qualifies as scientific evidence requiring a foundation.  The Frye test requires that “scientific evidence is admissible at trial only if the methodology or scientific principle upon which the opinion is based is ‘sufficiently established to have gained general acceptance in the particular field in which it belongs.’”  People v. McKown, --- N.E.2d ----, 2007 WL 2729262 (Ill. 2007).