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Xiphos is a monthly summary of recent court decisions relating to criminal procedure and other topics that are important to the public safety community.  The xiphos is a short, double-edged sword used essentially as a backup weapon for ancient warriors.  This service is provided at no cost.  To receive Xiphos in your email once a month, email Ken Wallentine.



Unauthorized rental car driver couldn’t protest inventory (but stay tuned)

A trooper spotted Sanchez speeding.  Sanchez handed the trooper a passport and an expired rental contract in the name of Alexis Fernandez.  Fernandez was not in the car.  In bold type, the rental contract stated, “NO OTHER DRIVERS PERMITTED.”

The trooper asked Sanchez to sit in his patrol car while the trooper completed a speeding citation.  Though Sanchez did not speak English well, he told the trooper that he and his passenger were on their way to Colorado for a week.  He also said that his driver license was suspended because of a DUI citation, and that his friend, Fernandez, was in California.

As the dispatcher checked for driver license and criminal history and outstanding warrants, the trooper deployed his drug detector dog for an exterior sniff of the rental car.  The dog did not indicate the presence of the odors of controlled substances. 

The trooper asked Sanchez for consent to search the car and gave Sanchez a Spanish language consent form.  Sanchez refused.  The trooper then called Enterprise.  Because the contract was expired, the rental car was authorized to be driven only in California, Nevada, and Arizona, and Fernandez was not present, Enterprise asked the trooper to impound the car.

The trooper told Sanchez that the car would be impounded, but first he would need to inventory the contents of the car.  Following the Lexipol impound policy promulgated by the Highway Patrol, the trooper conducted an inventory of the car.  Neither Sanchez or his passenger asked to remove any personal items from the car trunk.  The trooper located ten packages of methamphetamine in the trunk.

Charged with possession of methamphetamine with intent to distribute, Sanchez asked the court to suppress the drug evidence from the trunk.  The trial court found that Sanchez had legal standing to challenge the inventory, even though he was not named on the rental contract.  Notwithstanding, the trial court also ruled that the trooper properly followed his agency policy and conducted a lawful inventory.

Sanchez appealed, asserting that the inventory policy violates the Fourth Amendment and that the trooper’s subjective intent to find contraband invalidated the inventory search. 

The Supreme Court has long held that officers may conduct inventories of seized vehicles and other property.  Colorado v. Bertine, 479 U.S. 367 (1987).  The inventory must be conducted in accordance with a standard policy.  Florida v. Wells, 495 U.S. 1 (1990).  The Supreme Court articulated three justifications for inventories: “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 officer can’t use an inventory solely as a ruse to search for evidence.  The Tenth Circuit has previously held, “while mixed motives or suspicions undoubtedly exist in many inventory searches, such motives or suspicions alone will not invalidate an otherwise proper inventory search.”  United States v. Cecala, 2000 WL 18948 (10th Cir. 2000).  The trooper Withers acknowledged that he wanted to search the rental car for drugs.  Even so, he had another motive for the inventory.  Once Enterprise requested the impound, the trooper was obligated to follow his agency policy and make a complete inventory search of the car and its contents.  Thus, the evidence was admissible.

The question of whether a driver who is not listed on the rental agreement, but has the renter’s permission to use the car, has a reasonable expectation of privacy in the car’s trunk is now pending before the United States Supreme Court.  In Byrd v. United States, No. 16-1371 (argued Jan 9, 2018), Terrence Byrd was stopped while driving on an interstate highway in Pennsylvania.  When officers searched the trunk of the rental car, they found body armor and 49 bricks of heroin.  A decision on Byrd’s standing to contest the search is expected later this year.

Though in many ways this case speaks to the routine traffic stop and impound, it was the trooper’s determination to know his agency’s inventory policy, take the traffic stop step by step, and detailed report and testimony of his actions that lead to the discovery and evidentiary admissibility of the large quantity of methamphetamine.  Another example of excellent street cop work leading to a safer community.  United States v. Sanchez, 2018 WL 446172 (10th Cir 2018)

Compelling a fingerprint to unlock cell phone wasn’t “self-incrimination”

When M.H. returned home after running errands, she saw that the attached garage’s entry door had been kicked in.  A burglar had stolen a safe, a laptop, and several items of jewelry.  M.H. found an envelope in her driveway that had the name of S.W. written on it.  Officers photographed and measured the shoeprints on the door.

An investigator tracked down the model and license plate number of a car registered to S.W.  Tthe investigator learned that S.W. had pawned several pieces of jewelry.  M.H. identified the pawned jewelry as stolen from her home.  When police located S.W.’s car, Diamond was driving it.  They arrested Diamond an unrelated outstanding warrant.  He was booked into jail and his shoes and cellphone were booked into property. 

The investigator saw that Diamond’s shoe tread appeared to be the same as the tread prints left on M.H.’s damaged door.  The investigator obtained a search warrant for Diamond’s property, including his cell phone.  However, the phone was locked and required a fingerprint to open it.  Diamond refused to provide a fingerprint to unlock his mobile phone.

The prosecution asked the court to compel Diamond to provide his fingerprint and unlock the phone. Diamond argued that forcing him to provide his fingerprint to unlock the cellphone would violate his Fifth Amendment privilege against compelled self-incrimination.  After the court ordered Diamond to provide his fingerprint, he still refused.  Finally, under threat of a criminal contempt charge, Diamond cooperated.  Police extracted inculpatory text messages between Diamond and S.W.  A jury convicted Diamond of burglary.  Diamond appealed, arguing that he was forced to incriminate himself by providing the fingerprint to unlock the phone.

No other appellate court had yet considered whether the act of providing a biometric identifier, such as a fingerprint, to unlock a device constituted an act of self-incrimination.  The Minnesota Supreme Court held that no Fifth Amendment violation occurred.  The court compared providing a fingerprint to taking a blood sample, appearing in an identification lineup or providing a handwriting or voice exemplar.  The U.S. Supreme Court has held that there is no testimonial self-incrimination when a person is compelled to provide “real or physical evidence” that is “used solely to measure ... physical properties,” United States v. Dionisio, 410 U.S. 1 (1973), or to “exhibit ... physical characteristics.”  United States v. Wade, 388 U.S. 218 (1967).

The Minnesota Supreme Court said that ordering Diamond to provide his “fingerprint for the fingerprint’s physical characteristics and not for any implicit testimony from the act of providing the fingerprint” was not an incriminating testimonial communication.  “Moreover, the fingerprint was physical evidence from Diamond's body, not evidence of his mind's thought processes.”  However, the court noted that it was not equating act of compulsion to provide a fingerprint to compulsion to reveal a password, leaving that question for another day.  State v. Diamond, 2018 WL 443356 (Minn. 2018).

Prisoner postcard policy proper

Trey Simpson was a prisoner at the county jail.  Each week, his mother wrote several lengthy letters and included pictures and drawings.   While Simpson was incarcerated, the county changed the prisoner mail policy.  The new policy limited incoming mail to standard white postcards, no larger than 5″ X 7″.  There was not limit on the number of incoming postcards, but each prisoner was limited to ten postcards in the cell at any one time.

Simpson’s mother continued to prolifically write to her son, sending several postcards each week and numbering them for continuity.  She complained that the cards arrived at different times, confusing the message and that postal workers and jailers could read what she wrote.  The ACLU sued the county jail on Mrs. Simpson’s behalf.  The county asserted that the policy helped reduce the risk of contraband entering the jail and cut the staff time required to check incoming mail.

In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court held that a prison regulation “is valid if it is reasonably related to legitimate penological interests.”  The Court laid out several factors to help determine whether a particular rule met that threshold:

·         First, is there is a valid rational connection between the rule and the underlying government interest?

·         Second, is there an alternative means available to the prisoners to exercise the right?

·         Third, would an accommodation have a significant “ripple effect” on staff, other inmates, and prison resources?

·         Fourth, is there an alternative that fully accommodates the prisoner that imposes only a de minimis cost to the institution’s valid penological interests?

The appellate court held that “there is a common sense connection between the goal of reducing contraband in the jail and [the] postcard-only incoming mail policy.”  The court held that Simpson’s mother had several alternatives to fulfill her right to communicate with her son.  She could send him as many postcards as she likes.  Moreover, she could receive collect calls from him and she could visit him on visiting days.  The court also resolved the question of a significant “ripple effect” in favor of the jail because returning to a letter policy could increase the risk of contraband smuggling.  Finally, the could observed that “there is a common sense connection between restricting letter mail and limiting the amount of contraband that enters a jail.”  Mrs. Simpson should stock up on postcards for Trey’s next jail stint because the policy is deemed constitutional.  Simpson v. County of Cape Girardeau, 879 F.3d 273 (8th Cir. 2018).

Protective sweep went too far

Marshalls had an arrest warrant for Bagley for violating the terms of his supervised release.  The marshals also obtained a search warrant for a house, authorizing them only to enter, search for and arrest Bagley.  Though Bagley didn’t initially answer the door, he eventually surrendered and was arrested and handcuffed near the front door.

The marshals then made a protective sweep of the entire house.  They found two rounds of ammunition and some marijuana.  Based on that discovery, and Bagley’s status as a convicted felon, the marshals obtained a second search warrant.  The second warrant stated a broader scope, allowing the marshals to search for guns, ammunition and illegal drugs.  During the second warrant execution, the marshals found a gun.

Bagley claimed that the protective sweep after his arrest was illegal.  Therefore, he asserted, the second search warrant was based on illegally-discovered evidence.  Officers executing a warrant may conduct a limited protective sweep of the premises to look in “closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.”  A protective sweep of other parts of the building is allowed only if there is a reasonable belief that the premises conceal a person who poses a threat.  Maryland v. Buie, 494 U.S. 325 (1990).  There is no general right to conduct a protective sweep; there must be specific, articulable facts that there may be persons hiding who present a danger to officers.  United States v. Cunningham, 133 F.3d 1070 (8th Cir.), cert. denied, 523 U.S. 1131 (1998).

The appellate court agreed with Bagley that the initial protective sweep was unlawful.  Bagley was already under arrest and handcuffed.  At least one wall separated him from the bedroom where the two bullets and the marijuana were seen.   The court observed that the marshals’ uncertainty or inability to know whether anyone else was in the home could not “constitute the specific, articulable facts required by Buie.  “If officers lack any information about whether someone remains inside a house, they do not have the specific, articulable facts required for a protective sweep beyond the adjacent areas.”  Thus, the second warrant was based on an illegal search and the evidence was not admissible.  United States v. Bagley, 877 F.3d 1151 (10th Cir. 2017).J

Turning on a Cell Phone Without Warrant Violated Fourth Amendment

Commonwealth v. Fulton, 2018 WL 987963 (Pa. 2018)

Dean Fulton, also known as Jeff, Lil’ Jeff, Red Fox or Fox, is a drug dealer accused of fatally shooting Michael Toll, a customer, when Toll made a move that Fulton interpreted as reaching for a gun. Before he died, Toll told responding officers that “Jeff” reached into the car and shot him several times. Officers recovered two fired cartridge casings (a Winchester casing and a Cor-bon casing) and also examined Toll’s cell phone. They found Toll had repeatedly called a number identified as “Jeff” in the contacts list.

Two days later, officers responding to a “man with a gun” call found four men in or near a sedan, including Fulton and Eric Adams. When the officers saw a gun, they arrested all four men, seized a smartphone from Fulton, and took several other phones from the sedan.

A detective later powered on each phone and identified the respective assigned phone numbers. He learned that one of the phones had the same number Toll had called (the number identified as “Jeff” in Toll’s contacts list). The detective left the phone on and later answered an incoming call. The caller met with the detective and admitted she regularly bought heroin from “Lil’ Jeff” and contacted him at the same number. She identified a photo of Fulton as Lil’ Jeff.

The series of events that began with turning on the phones led to other witness interviews. Adams admitted he was with Fulton when Fulton shot Toll. A search warrant for Fulton’s residence turned up a box of Cor-bon bullets. Fulton was charged with murder.

Fulton argued that discovery of all the evidence against him began with the detective turning on the phone without a search warrant. The trial court ruled that turning on the phone was a “minimally invasive search.” The court also ruled that Fulton lacked a reasonable expectation of privacy for incoming phone calls, including the call answered by the detective. The court further stated that any error in the search was “harmless” and did not warrant evidence suppression. Fulton was convicted of murder.

The state supreme court overturned Fulton’s conviction. The court applied the U.S. Supreme Court decisions in Riley v. California and United States v. Wurie (134 S.Ct. 2473 (2014)), which held that officers must obtain a search warrant to search cell phones of people they arrest. The Pennsylvania high court identified three separate warrantless searches of Fulton’s phone: powering it on, finding the assigned number, and answering incoming calls and monitoring messages.

The court agreed with Fulton that the critical evidence all flowed from searches of his phone. The court held that the very act of turning on the phone and examining the screen was a “search.” Applying a strict interpretation of the Supreme Court Riley/Wurie decision, the court held the search required a warrant. Thus, all the evidence tied to the phone in any way should have been suppressed.

Not all courts have taken such a strict view of the Court’s Riley/Wurie decision (see, e.g., State v. Ferrell, (2018 WL 710058 (N.C. App. 2018)) or State v. Strawser (2017 WL 5513617 (W.V. 2017)). Though the court’s opinion doesn’t discuss whether the detective had probable cause to obtain a warrant to search Fulton’s cell phone and whether he could have taken the time to seek a warrant, it seems likely—given the circumstances of the arrest and Fulton’s history—that a warrant could have been obtained. Now the state is left deciding whether to try Fulton again, this time without the evidence derived from the illegal searches.

Evidence of Possible Pretext Trumps Probation Termination

Perez v. City of Roseville, 2018 WL 797453 (9th Cir. 2018)

Leah Begley filed a citizen complaint alleging that Janelle Perez, a probationary police officer, was having an on-duty sexual relationship with Begley’s husband, veteran Officer Shad Begley. An internal affairs (IA) investigation followed. The investigation produced no evidence of on-duty sexual contact, but did show that Begley and Perez likely violated the department’s policy on personal communication device use.

A captain reviewed the IA report and recommended Perez be terminated as a probationary officer. The captain made a comment critical of the off-duty relationship, noting that “both officers are married and have young children,” and the conduct “reflects unfavorably” on the department. Both the captain and the lieutenant who reviewed the IA report acknowledged moral disapproval of Perez’s conduct. And, at some point during the investigation, a female sergeant and a female lieutenant commented that Perez didn’t get along with other female officers.

The department formally reprimanded both officers for “Unsatisfactory Work Performance” and “Conduct Unbecoming.” Perez appealed the reprimand and at the conclusion of a hearing with the chief, the chief fired Perez. Perez asked for a reason, but the chief declined to give one.

Two weeks after the termination, the captain revised the formal reprimand, changing the reasons from “Unsatisfactory Work Performance” and “Conduct Unbecoming” to a violation of the Use of Personal Communication Devices Policy. Perez sued, alleging that the reason for her termination was pretextual. Eventually, the department settled on failure to get along with other female officers, a citizen’s complaint about Perez, and Perez’s “bad attitude” with a supervisor as reasons for her firing. (Note: If you’re silently commenting that she was a probationary officer and could be fired without cause, good for you, but read on.)

Though public employees, particularly law enforcement officers, surrender some privacy rights in exchange for employment, there are constitutional limits on a department’s ability to impose controls on off-duty conduct. This case is about—but only in part—how much privacy officers have in their private off-duty sexual conduct. Essentially, the agency must show that off-duty conduct has some detrimental effect on on-duty work. Just how severe and how detrimental the effect must be is a matter of disagreements in various courts. Both the 5th Circuit and 10th Circuit federal courts of appeals have strong precedent that likely would have been fatal to Perez’s appeal. However, the 9th Circuit has a history of greater lenience toward permissible off-duty conduct.

The district court ruled that each defendant was entitled to qualified immunity and the court dismissed Perez’s lawsuit. The court of appeals reversed, holding that Perez was entitled to try to convince a jury that the real reason for her termination was that she and Begley had an off-duty sexual relationship: “Given the investigation of charges based upon allegations related to her affair with another officer, the evidence of the investigators’ moral disapproval of her affair, and the Department’s constantly shifting justifications for her termination, as well as the independent reasons for doubting the legitimacy of each shifting justification, we conclude that a genuine issue of material fact exists to whether Perez was fired at least in part because of her extramarital affair.”

One judge concurred in the result, but wrote a separate opinion disagreeing with much of his colleagues’ reasoning. Judge Tashima noted that, “the department did not need to provide any reason for firing Perez, who was hired as a probationary police officer. The department could summarily dismiss Perez for no reason at all or for a frivolous, non-protected reason.” However, he concurred that there was enough hint of pretext to allow Perez to argue to a jury that she was fired for illegal reasons.

Certainly a review of policy and a discussion with the department’s legal counsel might have caused a different result for the defendants in this case. Now might be a good time to review your agency’s policies addressing off-duty conduct and use of personal communications devices. Supervisors considering discipline or termination should ensure they’re standing on solid policy and/or law violations grounds. Foremost, this case reminds agencies to use probationary status for its intended purpose.

Trash Can Visible Near the Garage Still Fair Game

United States v. Thompson, 881 F.3d 629 (8th Cir. 2018)

Police received an anonymous tip that James Thompson was dealing illegal drugs. After a drive-by, officers contacted the local trash service and arranged for a trash pull. Officers watched the garbage collector walk up the driveway to Thompson’s garage, take the trash can and dump the trash into the garbage truck. Officers then took the trash and searched it, finding several drug-related items.

Officers conducted another trash pull the following week and found more drug-related items and a receipt for a storage unit. Based on the trash pulls and the informant’s tip, the officers obtained a search warrant for Thompson’s residence. They found 19 grams of methamphetamine, $26,063 in cash, and drug paraphernalia. The officers later obtained another search warrant for Thompson’s storage unit, where they found an additional 115.1 grams of methamphetamine and $36,950 in cash.

Thompson asked the court to suppress the evidence, claiming that the trash pulls were unconstitutional. He asserted that he hadn’t abandoned his expectation of privacy in the trash container sitting by his garage. The garbage was still within the curtilage of his residence when the trash collector walked up and took it (curtilage is the area immediately surrounding a home). Items within the curtilage get the same Fourth Amendment protection as the residence itself.

The court rejected Thompson’s argument. Citing its own precedent, the court stated that “the proper focus [is] whether the garbage was readily accessible to the public so as to render any expectation of privacy objectively unreasonable.” Thompson’s garbage can “was easily visible from the street, and there were no barriers preventing access to the container or its contents.” Thus, he couldn’t assert a legitimate expectation of privacy in the trash can contents.

Pankey’s Hanky Panky Leads Him to the Pokey

United States v. Pankey, 2018 WL 798426 (4th Cir. 2018)

A trooper saw Michael Pankey speeding and stopped him. Smelling burnt marijuana, the trooper asked who had been smoking marijuana in the vehicle. Pankey denied that anyone had been smoking in the vehicle, but the trooper observed Pankey showing substantial physical signs of nervousness. Pankey was driving on Interstate 85, a known drug trafficking route, en route to Oxford, N.C., a known source city for illegal drugs.

The trooper opened the car door and peered inside, where he saw marijuana and some marijuana leaves. He searched the passenger compartment and found two cell phones (one of which was located in the passenger side door panel): one was a prepaid flip phone, the other was Pankey’s personal cell phone. The trooper also searched the trunk and found a large quantity of cocaine and heroin in a duffle bag.

Pankey claimed there was not probable cause to search his car trunk. He asserted that the mere odor of burnt marijuana in the passenger compartment didn’t support probable cause to search beyond the passenger compartment. At least two federal circuit courts of appeals, the 5th and 8th circuits, hold that the odor of marijuana discernable in the passenger compartment can give probable cause to search the entire car. The 10th Circuit has reached the opposite result, holding that mere odor of burnt marijuana isn’t enough to create probable cause for a search unless the officer observes other evidence of contraband.

The 4th Circuit court had not yet ruled on the question of whether the passenger compartment odor could lead to a trunk search. And the court said that it didn’t need to decide the question to resolve Pankey’s case. Because the trooper was sharp enough to look beyond the odor and to note Pankey’s extreme nervousness, the marijuana leaves in the passenger compartment, his travel in a known drug trafficking corridor, and having a pre-paid “burner” flip phone known to be used by criminals, the trooper had probable cause to search the trunk even without considering the odor of marijuana.

Smartphone Forensic Search Permitted by Border Search Doctrine

United States v. Vergara, 2018 WL 1324589 (11th Cir. 2018)

Hernando Javier Vergara docked at Tampa, Fla., after a cruise to Mexico. As a convicted sex offender, Vergara was on a watch list. When he came through the Customs and Border Protection station, an agent asked Vergara to turn on his three mobile phones. The agent found a found a video of two topless female children on one phone. The agent called for Homeland Security investigators to conduct a secondary inspection.

A Homeland Security investigator seized two of the phones and took them to another location for a full forensic search. That search uncovered more than 100 images and videos of child pornography on the phones. Vergara was charged with transportation and possession of child pornography. He asked the trial court to suppress the child pornography found during the search, arguing the agents needed a warrant for the forensic examination. The trial court denied his motion and he was convicted.

The appellate court held that the border search doctrine allowed a warrantless search of Vergera’s phones, including the later forensic search. Citing the U.S. Supreme Court ruling in United States v. Ramsey (431 U.S. 606 (1977)), the court noted that, “Border searches ‘never’ require probable cause or a warrant.” More intrusive border searches, such as strip searches or x-ray scans, require only reasonable suspicion.

Vergara argued that the Supreme Court’s holding in Riley v. California (134 S.Ct. 2473 (2014)) compelled a different result. In Riley, the Court held that a search of a cell phone cannot be justified by a lawful arrest because of the significant privacy interests that a person holds in the contents of a smartphone. Though the lone dissenting judge in Vergara’s case opined that the forensic search should have required a warrant, she admitted that she could, “at best, attempt to predict how the Supreme Court” would apply the border search doctrine to a search of a smartphone. She observed that the border search doctrine is traditionally based on the need to exclude physical contraband, such as diseases, narcotics and explosives, from entering the country.

For now, the applicability of the border search to smartphones applies. Considering that courts have long upheld digital searches of laptops, storage media and tablets at the border, perhaps that will remain the rule. Notwithstanding, the Supreme Court acknowledged in Riley that smartphone data is “qualitatively different” from other electronics because it may reveal travel history and intimate details about a person’s life, such as addiction, religious practices, pregnancy, personal finances, and romance. As the “gulf between physical practicability and digital capacity … continue[s] to widen,” don’t be surprised if the Supreme Court reconsiders the intersection of smartphone searches and the border search doctrine.

Abuse of Stun Restraint Results in Reversal of Conviction

Morris v. State, 2018 WL 1082345 (Tex. App., 8th Dist., 2018)

Terry Lee Morris was dating the mother of a 15-year-old girl. When Morris and his girlfriend broke up, Morris reached out to the daughter for sexual conversations. Morris asked the daughter to give him photos of her breasts and genitals. The girl agreed. Morris reciprocated with photos of his penis. When Morris’ 13-year-old dog washer reported that Morris tried to convince her to perform oral sex on him, a search warrant followed, and the sexually explicit photos and text messages were discovered.

During the trial, Morris was outfitted with a stun belt restraint device. He continually disobeyed the judge’s orders and complained about his attorney. The judge warned Morris that he would be shocked by the stun belt if he did not behave. After another outburst, the judge told the deputy “hit him,” indicating that Morris should receive a shock.

Morris continued to argue with the judge, asserting he had a mental illness. During these exchanges, the judge twice more told the deputy to “hit him,” resulting in additional shocks. The judge then ordered Morris removed from the courtroom. Morris did not return to the courtroom, asserting that he was afraid of more shocks.

The jury convicted Morris for soliciting the sexual performance of a child and he was sentenced to 60 years. Morris appealed. The court of appeals reversed his conviction, ruling that the trial court judge overstepped in ordering the repeated shocks. The appellate court agreed that Morris was properly removed from the court for arguing and being disruptive. However, the use of the stun belt was allowed “only in extraordinary circumstances when immediate security concerns or flight risk justify use.” (Note: As is sometimes the case in the discussion of electronic control restraints and other devices, the court’s opinion discusses electronic restraints generally in broad terms and with little factual accuracy about the device. Morris described wearing an ankle cuff, though the court discussed another type of device worn around the waist. The court cited published scientific papers that address entirely different types of devices.)

Lexipol policy prohibits use of electronic restraints to punish or torment. The policy prescribes that the electronic restraint device should only be used in court settings to prevent self-injury, suicide, escape, injury to others, property damage or an attempt to remove or destroy the device.

The court ruled that Morris’ right to be present at trial was violated because the shocks made him afraid to return to the courtroom after being expelled for his misbehavior. The appellate court reversed Morris’ conviction and ordered that he receive a new trial.

No Need to Wait for a Warning Shot to Whiz Past Your Ear

Sanzone v. Gray, 2018 WL 1193315 (7th Cir. 2018)

Keith Koster’s friend called police and asked them to check on Koster. The friend reported that Koster was vomiting and having trouble breathing. Officers responded with fire service paramedics. Koster’s apartment manager gave the officers a key in case Koster couldn’t open the door for them.

An officer unlocked the door and a paramedic called out to Koster, saying they were there to help him. Koster replied by yelling: “Don’t come in! If you enter my apartment I will shoot you.” The paramedic and the apartment manager said they saw a gun in Koster’s right hand.

An officer moved to the front and began to speak with Koster, who was holding his gun. A hostage negotiator arrived and took over the conversation. Koster made several requests, then said he was going to fire a warning shot. As Koster began to point the gun directly at the officers, the officer at the front ducked behind a shield. One officer fired a beanbag round and another officer fired three rounds at Koster’s head, killing him.

Koster’s sister sued. She claimed the officers should have recognized that Koster would have continued upward with the muzzle and fired a warning shot into the air (or into the apartment above? Or who knows where?). The court observed that Koster might also “have meant that he intended to attempt firing a bullet that would whiz past [the officer]’s ear.”

The court granted qualified immunity to the officer, resulting in dismissal of the lawsuit. The court held that the officer “did not need to wait and hope that Koster was a skilled marksman before taking action.” The trial judge had ruled that the officers were obligated to duck and take cover once Koster raised the gun at them. Simply not so, said the appellate court.

Cases like this prompt public safety leaders to ponder how much risk to take to save suicidal persons from themselves when other members of the public aren’t in harm’s way. For many, it’s a “damned if you do and damned if you don’t” proposition. Others see it as a moral duty versus a legal question. For more discussion, see Should I Stay or Should I Go? in the October 2017 issue of POLICE magazine.

Supreme Court Scolds: We Meant What We Said About Qualified Immunity

Kisela v. Hughes, 138 S.Ct. 1148 (2018)

Officers responded to a report that Amy Hughes was acting erratically, “screaming and crying very loud,” and hacking at a tree with a large butcher knife. Three officers responded and all drew their weapons upon seeing Hughes come out of a house, holding the knife. Hughes stepped toward another woman and then stopped just about six feet from her. One officer commanded Hughes to drop the knife; she did not comply and said nothing. The other woman, later identified as Hughes’ roommate, told officers to “take it easy.” One of the officers perceived that Hughes posed an imminent threat to the roommate and fired four rounds, striking Hughes.

The officers subsequently discovered that Hughes had threatened to kill her roommate’s dog over a $20 debt. The roommate told the officers that Hughes was mentally ill and occasionally acted out. Hughes survived her injuries and sued the officer who shot her.

The 9th Circuit Court of Appeals held the officer was not entitled to qualified immunity. In a powerful and fiery rebuke of the court of appeals, the Supreme Court summarily reversed without even requiring written briefs or oral argument. The Supreme Court issued an unsigned opinion, writing that it had “repeatedly told courts—and the 9th Circuit in particular—not to define clearly established law at a high level of generality.” That’s the court equivalent of “if we’ve told you once, we’ve told you a thousand times ... what is it that you don’t understand?”

The Court once again stated that “use of excessive force is an area of law ‘in which the result depends very much on the facts of each case,’ and thus police officers are entitled to qualified immunity unless existing precedent ‘squarely governs' the specific facts at issue.” The Court didn’t address whether shooting Hughes violated the Constitution; rather, the Court stated there was no clear precedent giving the officer notice that shooting to protect the roommate from a potential knife attack could be unconstitutionally excessive force.

Justice Sotomayor scolded her fellow justices for applying “the extraordinary remedy of a summary reversal” in its stinging rebuke of the 9th Circuit. Despite the speed with which a subject can stab or slash someone just six feet away, Justice Sotomayor asserted that “Hughes was nowhere near the officers, had committed no illegal act, was suspected of no crime, and did not raise the knife in the direction of [the roommate] or anyone else.” She said that the Court’s ruling “tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

Though critics of the decision claim the Supreme Court is expanding the scope of qualified immunity, many court watchers suggest it is doing little more than tacitly or expressly affirming the continued vitality of Graham v. Connor (490 U.S. 386 (1989)), and holding the bright line on the qualified immunity doctrine. In County of Los Angeles v. Mendez (137 S. Ct. 1539 (2017)), the Court halted the 9th Circuit’s development of a “provocation rule,” holding that “once a use of force is deemed reasonable under Graham, it may not be found unreasonable by reference to some separate constitutional violation” (such as officer-created jeopardy or provocation). The Court called the provocation rule “an unwarranted and illogical expansion of Graham.” The Mendez ruling—along with District of Columbia v. Wesby (138 S.Ct. 577 (2018)), White v. Pauly (137 S. Ct. 548 (2017) (per curiam)), Mullenix v. Luna (136 S. Ct. 305 (2015) (per curiam)), and Plumhoff v. Rickard (134 S.Ct. 2012 (2014)) (discussed in past issues of Xiphos)—reaffirms the Court’s plain statement that “when an officer carries out a seizure that is reasonable, taking into account all relevant circumstances, there is no valid excessive force claim.”

Though only Justice Ginsburg joined Justice Sotomayor’s criticism of her colleagues, even the generally conservative Justice Thomas has expressed willingness to continue examining the scope of qualified immunity. Two years ago, in Ziglar v. Abbasi (137 S.Ct. 1843 (2017)), Justice Thomas noted in a concurring opinion that, “in an appropriate case, we should reconsider our qualified immunity jurisprudence.” Justice Thomas was more concerned about the philosophical judicial authority supporting the qualified immunity doctrine. Nonetheless, the left-leaning justices are likely to continue pressing for some retreat from Graham, and they may find unlikely allies in a case squarely challenging the court’s constitutional authority to grant qualified immunity. In fact, University of Chicago Law School professor William Baude wrote an influential scholarly article, “Is Qualified Immunity Unlawful?” challenging the very underpinnings of the qualified immunity doctrine.

Stay tuned. Just about every year we see a qualified immunity decision related to law enforcement coming from the Supreme Court.

No Basis for Demanding Passenger ID Results in Illegal Detention

Johnson v. Thibodaux City, 2018 WL 1804756 (5th Cir. 2018)

Jackalene Johnson, Dawan Every and Kelly Green were riding in a truck driven by Latisha Robertson. An officer recognized Robertson and knew she had an outstanding warrant. So, he stopped the truck, asked Robertson to exit, and handcuffed her. The officer couldn’t put Robertson into his car because his police service dog occupied the backseat.

Other officers arrived and one of them placed Robertson into the back of a patrol car. Two of the officers then approached the truck and asked Johnson, Every and Green for identification. Green provided her name and birthdate, but Johnson and Every refused to identify themselves. The officers arrested them for resisting an officer by refusing to identify themselves during a detention.

Subsequently, Johnson and Every physically resisted arrest to some degree and the officers took the two women to the ground. And, as an officer walked Every to his police car, Every began to run and the officer used a TASER to subdue her.

Johnson and Every sued, alleging unlawful arrest, excessive use of force, and that the city failed to properly train the officers. A jury sided with the officers at which point Johnson and Every asked the court to award judgment as a matter of law (suggesting that the law was on their side, even if the jury thought otherwise). When the trial court denied their motion, Johnson and Every appealed.

The Court of Appeals reversed the decision. The court held that “even in the light most favorable to the verdict, the evidence shows that Johnson’s detention lasted longer than necessary to effect the purpose of the stop.” Thus, the jury verdict was premised on an “erroneous legal conclusion” since Johnson was not lawfully stopped when the officers demanded her identification. Once the officer arrested Robertson, there was no reasonable suspicion to detain or demand identification from Johnson, Every and Green, and the three should have been allowed to go on their way.

Four-Hour Detention of Witness Violated Fourth Amendment

Lincoln v. Scott, 2018 WL 1631661 (5th Cir. 2018)

Officers were dispatched to a report that John Lincoln was armed and intended to shoot his mother. When officers arrived, only John and his daughter, Erin Lincoln, were in the house. John Lincoln came to the front door several times, taunting officers with comments such as “come and take it,” and “make your move.” Erin Lincoln just stood by John Lincoln’s side as he opened the door and shouted at officers.

The last time he opened the door, John Lincoln was fatally shot by officers. Erin Lincoln fell or dropped to his body and had to be forcibly removed. She claimed that an officer handcuffed her, threw her over his shoulder and dragged her from the scene kicking and screaming.

Erin Lincoln was placed in a police car and the handcuffs were removed. The officers reasoned that putting her in a patrol car would facilitate removing John Lincoln’s gun and providing medical aid to him, and would prevent Erin Lincoln from interfering with the investigation. Moreover, it was a chilly December night and she was not dressed to be out in the cold. An officer stayed with her, a supervisor checked on her from time to time, and a detective asked whether she needed anything. She never told anyone she wanted to leave, and neither the detective nor other officers had determined whether Erin Lincoln was merely a witness or complicit in John Lincoln’s plan to kill his mother.

An officer drove Erin Lincoln to the police station where the detective conducted a brief initial interview with her. The detective asked her to write a statement; she agreed and wrote five pages. Erin Lincoln then remained at the station, sitting with her family, while other family members were interviewed.

Erin Lincoln was detained for approximately two hours in the patrol car and an additional two hours and 17 minutes at the police station. Although there was probable cause to charge Erin Lincoln for interference with performance of public duties and assault, no charges were ever filed against her. Since she wasn’t charged, Erin Lincoln claimed she was unreasonably seized in violation of the Fourth Amendment and sued.

The U.S. Supreme Court has never endorsed a detention longer than 90 minutes (and that was in a case where the detainee was suspected of criminal activity). The court cited several cases where detentions of witnesses, ranging from 90 minutes to five hours, had been held to violate the Fourth Amendment. Thus, the four-hour detention in this case was unreasonable.

Though the court held that Erin Lincoln’s detention was constitutionally unreasonable, the court’s task was to consider whether a witness’s right to not be detained for such a long period was “clearly established law” prior to this incident. A right is “clearly established” when it is based on “a sufficiently clear foundation in then-existing precedent. The rule must be ‘settled law,’ which means it is dictated by ‘controlling authority’ or a ‘robust consensus of cases of persuasive authority.’” If the right is not clearly established, then the officers are entitled to qualified immunity from suit.

Whether it was reasonable to detain a compliant witness to an officer-involved shooting for questioning and investigative preservation had not been directly addressed by the court. Thus, the right was not clearly established at the time and the officers could not be held liable.

Though the officers were immune from suit in this case, the court’s decision is another step toward clearly establishing a witness’ right to not be detained for extended periods of time, even in critical incidents. Though there are many pressing urgencies in the hours after a shooting or other critical incident, don’t detain a witness for too long. Prolonged or avoidable detention is fodder for an illegal detention lawsuit and risks alienating the detained witness.

Bursting Bladder Doesn’t Render Breath Test Involuntary

Motor Vehicle Administration v. Smith, 2018 WL 1887201 (Md. App. 2018)

An officer stopped Megan Smith at 0200 for driving without headlights. As the officer spoke to Smith, he detected an odor of alcohol on her breath. After Smith performed poorly on standard field sobriety tests, the officer arrested her and took her to a station for a breath test.

The officer read a standard admonition about the nature of the detention for driving under the influence and the sanctions associated with a refusal to submit to a chemical test. Smith signed the form and said that she really needed to go to the restroom right away. The officer refused to let her use the restroom. Smith took the test and her breath alcohol registered .18.

Smith subsequently challenged the voluntariness of her breath test. She claimed the officer violated her due process rights by refusing to let her use the restroom until she decided whether to take the test, thereby influencing whether she should submit to testing. It’s a theory of bladder competing with brain.

The court didn’t explore the reason for the officer’s refusal to let Smith relieve herself. Perhaps the officer was concerned about the mandatory pre-test observation period. Nonetheless, the court held that Smith failed to show her bursting bladder “impaired her ability to appreciate the gravity of the circumstances or overcame her intention to refuse testing.”

Accessing Playpen Site Provided Probable Cause to Search House

United States v. Tagg, 886 F.3d 579 (6th Cir. 2018)

Officers executed a search warrant for illegal child pornography at Derek Tagg’s residence. At the residence, officers found over 20,000 files containing pornography stored on Tagg’s computer. The search warrant was supported by an affidavit that someone at Tagg’s residence spent over five hours browsing a child pornography “dark web” site known as “Playpen” and clicked on more than 160 links leading to child pornography. However, there was no explicit evidence that Tagg was at the keyboard.

Tagg asked the trial court to suppress the evidence, arguing there was no probable cause to believe he was the one accessing the illegal materials; the trial court agreed. The prosecution then appealed and the court of appeals reversed the decision.

The court observed “the unique challenges of child-pornography crimes demand a practical approach to the probable-cause question.” Citing a recent Supreme Court case of District of Columbia v. Wesby (138 S.Ct. 577 (2018)), the court noted that “probable cause deals with probabilities and depends on the totality of the circumstances.” Relying on “common-sense conclusions about human behavior,” the magistrate who issued the search warrant could easily conclude there was probable cause to believe Tagg possessed child pornography. The statute prohibits possession and distribution; the prosecution is not required to show Tagg actually viewed illegal content.

This case is one of many connected to investigators’ temporary takeover of the Playpen child pornography website as part of a sting operation. Because the takeover involved planting “bugs” allowing investigators to track back to those who accessed the site, the takeover method constituted a unique type of search. Other defendants have challenged the global warrant allowing investigators to use software to identify those accessing the "dark web” site. One of those cases may yet wind its way to the Supreme Court and be the basis of the next application of the Fourth Amendment, adopted in 1791, to heinous crimes committed with 21st century technology.


2017 Archives

Supreme Court Hears Arguments in Carpenter v. United States

Carpenter v. United States, U.S., No. 16-402, argued November 29, 2017

Justice Neil M. Gorsuch took center stage with his robust questions from the bench during arguments in the case likely to determine whether the government must obtain a warrant for historical cellphone location records from mobile phone service providers. Present law requires only an order issued under the Stored Communications Act. Such orders require only reasonable suspicion that a crime has taken place, not the probable cause standard required for warrants.

Justice Gorsuch suggested that the government is far astray of the Founding Father’s view of property rights. He quipped, “You know, John Adams said one of the reasons for the war was the use by the government of third parties to obtain information.” Justice Gorsuch was referring to Writs of Assistance, which dramatically differ from orders for historical cell site location information. The Writs of Assistance empowered British troops, officials and loyal sympathizers to enter private homes and conduct broad searches. Notwithstanding, it seems clear that Justice Gorsuch favors a “property interest” approach to Fourth Amendment analysis, rather than the “expectation of privacy” analytical model that has held fast for over five decades, ever since the Supreme Court held that the Fourth Amendment protects “people, not places” in Katz v. United States (389 U.S. 347 (1967)). 

During Prohibition, Roy Olmstead and approximately 50 others were involved in a massive bootlegging operation.  Federal agents listened in on their telephone calls for months, gathering enough evidence for numerous arrests and raids.  In Olmstead v. United States, 277 U.S. 438 (1928), the Court held that the warrantless wiretapping was permissible because the agents didn’t physically trespass on Olmstead’s property in order to eavesdrop.  Four decades later, the Court’s decision in Katz marked a sharp turn from years of precedent that focused on whether officers committed a physical trespass in order to gather evidence.  Charles Katz made his living placing bets on basketball games across the nation, in violation of federal law prohibiting interstate gambling.  To avoid the possibility of the FBI tapping his phone, Katz placed his bets in phone calls made from a series of public telephone booths along Sunset Boulevard in Los Angeles.  The agents believed that their wiretapping of a public phone was lawful.  The Court abandoned its “trespass doctrine” analysis and Justice Potter Stewart famously wrote that the Fourth Amendment “protects people, not places.”

This shift has been several years in the making. In United States v. Jones (132 S.Ct. 945 (2012)), the Supreme Court held that installing a GPS tracking device to monitor Jones’ vehicle movements constitutes a search under the Fourth Amendment. The Court hearkened to a property rights analysis, holding that officers committed a trespass against Jones’ “personal effects.”

In the Carpenter arguments, Justice Elena Kagan queried whether the Jones holding should not directly lead to a similar ruling for historical cell site location information. After all, whether it is a GPS transmitter or a mobile phone, the pertinent information is the location data. The difference, of course, is that Carpenter voluntarily shared his location data with a third party—his mobile phone service provider. Much of the questioning and briefing concerns the Court’s holdings in United States v. Miller (425 U.S. 435 (1976)) and Smith v. Maryland (442 U.S. 735 (1979)), which held that people do not have a reasonable expectation of privacy in bank records (Miller) and pen register record of numbers dialed (Smith) when such records are disclosed to third parties. The Court’s decision in Carpenter v. United States may well signal the death of the third-party doctrine.

At the end of the day, the Court’s ruling will impact you and me far more than Carpenter. Carpenter is serving a 116-year prison term for his eight robbery convictions. Justice Alito asked, “Is any of this going to do any good? […] Is [Carpenter] going to get anything suppressed?” It is almost certain that the “good faith” exception to the exclusionary rule will prevent suppression of any of the evidence against Carpenter (the good faith doctrine was recognized in United States v. Leon, 468 U.S. 897 (1984)). Because the investigators used a court order to obtain Carpenter’s phone records, Carpenter can’t claim bad faith by the investigators, even if he “wins” his case at the Supreme Court.

The Carpenter case not only may upend the third-party doctrine, but the Court may move even closer to a strong property rights analytical model for digital privacy. The Court may decide that the Fourth Amendment protects people and places, particularly cyberplaces.  The ripples of such a move would be felt for years to come as police develop investigative methods to challenge the ever-changing technology used for criminal purposes.

Bus Interdiction Wasn’t a “Roadblock”

United States v. Wise, 2017 WL 6030636 (5th Cir. 2017)

Morris Wise was a passenger on a Greyhound bus bound for Chicago from Houston. At a regular stop, interdiction officers boarded the bus and the bus driver consented to a search of the passenger compartment. One of the officers walked to the back of the bus, passing Wise (who was pretending to sleep, though his eyelids were tightly clenched shut).

On the return pass, the officer asked Wise for his ticket and Wise produced a ticket for “James Smith.” The officer thought the “very generic name” could be fake. There were two bags sitting in the rack above Wise’s head and, when asked, Wise grabbed one and opened it for the officer. He denied that the other bag was his.

The officer took that bag and loudly asked other passengers if the bag belonged to any of them. No one claimed the bag and the driver said he did not want an unclaimed bag on the bus. So, officers took the bag off the bus, cut the lock and found seven bricks of cocaine inside. An officer then asked—but did not demand—Wise to step off the bus and chat. When asked to empty his pockets, Wise displayed identification in his name (Morris Wise, not James Smith) and a key to the lock that was cut from the backpack. Officers then arrested Wise.

The trial court suppressed the cocaine evidence, ruling that the officers conducted a drug enforcement checkpoint in violation of City of Indianapolis v. Edmond (531 U.S. 32 (2000)). The court of appeals, however, held that the interdiction effort was clearly not a roadblock. The officers used the bus company schedule to time their activities, but they didn’t stop the bus. The driver stopped at a regular stop because the company required it. The passengers were free to get off the bus, or stay on, and they did not have to talk to the officers. Unlike a roadblock, no one was required to speak to the officers or answer questions.

Wise also argued that he was detained without reasonable suspicion. Wise stated he felt he couldn’t get off the bus or decline to talk to the officers because there were several officers around the bus and a marked police car with a drug detector dog nearby, and because the officers didn’t tell Wise that he could refuse to speak with them. However, the court observed:

·         The officer gave the bus passengers no reason to believe they were required to answer the questions.

·         The officers didn’t draw or display weapons or make any intimidating movements.

·         The officers didn’t block the aisle.

·         The officer first spoke to Wise individually, in a friendly, conversational tone.

·         No officer suggested to Wise that he couldn’t leave the bus or simply end the conversation.

In other words, the officers were professional and knew to “talk nice, think mean.”  The officers carefully avoided coercive commands and actions that could reasonably viewed as creating custody, and that made the difference between possible evidence suppression and the successful conviction.


Officer’s Search “Obviously” Illegal, Even Though Authorized by Warrant

Sims v. Labowitz, 2017 WL 6031847 (4th Cir. 2017)

Trey Sims, 17 years old, used his mobile phone to record himself fondling his erect penis. He sent the video recordings and photos to his 15-year-old girlfriend. Sims indubitably hoped the girlfriend would safeguard the images; however, the girlfriend’s mother had a peek—enter the police.

A detective seized both teens’ phones and obtained a search warrant requiring Sims to strip, allowing comparison photos of his erect penis. However, when Sims got naked in a room with three police officers and a camera, he could not rise to the moment. The detective told Sims to masturbate in order to become erect. Sims could not, so the detective photographed Sims’ flaccid penis. The following day, the detective obtained a second search warrant, intending to require Sims to try again, or to take Sims to a hospital for an injection that would produce an erection.

Before the second warrant could be executed, the prosecutor intervened. Sims sued the detective, claiming both an invasion of his sexual privacy and an unreasonable search, and alleging that the detective forced Sims to participate in producing child pornography by photographing his penis as Sims attempted to masturbate.

The trial court granted qualified immunity on the Fourth Amendment claim and dismissed Sims’ claim for damages associated with alleged manufacturing of child pornography. The court of appeals reversed the grant of qualified immunity, ruling that forcing a teenage boy to masturbate to comply with a warrant authorizing police to obtain photos of the teen’s erect penis counts as an unlawful search.

The court held that “ordering Sims to masturbate to obtain an erection, required that Sims perform a sex act in the presence of three armed officers. Such alleged conduct necessarily invaded Sims’ bodily integrity even though no part of Sims’ body was penetrated or physically harmed.” The court also stated that attempting to force Sims to achieve an erection with three officers watching intruded “upon an area in which our society recognizes a significantly heightened privacy interest.” The court held the search unreasonable because of the weak need for the evidence and “the outrageous scope of the sexually intrusive search and the intimidating manner in which the search was conducted.”

Whatever one might think of the detective’s investigative efforts, he did rely on a valid search warrant issued by a judge. The dissenting judge would have granted qualified immunity on that basis, quoting Judge Wilkinson, “If reasonable mistakes were actionable, difficult questions of discretion would always be resolved in favor of inaction, and effective law enforcement would be lost” (Torchinsky v. Siwinski, 942 F.2d 257, 261 (4th Cir. 1991)). However, the majority held the officer should have known the warrant was unreasonable on its face.

Cocaine Lawfully Retrieved from…

Cole v. Commonwealth, 2017 WL 5493894 (Va. 2017)

An officer arrested Abdul Rahman Cole for a warrant. During the inventory of Cole’s car, the officer found an open alcohol container and some marijuana. When the officer told the jail’s booking deputy about the drug charge, the deputy told Cole that he had to submit to a strip search. Both the deputy and officer took Cole to a private area and told him to remove his clothing.

After removing his clothing, Cole was ordered to squat and the officer saw a white baggie protruding from Cole’s anus. The officer told Cole to raise his hands, but Cole instead plucked the baggie from the rear hole, stuck it into his mouth, and tried to swallow it. After a brief struggle, the officer somehow got the baggie, which held 14 smaller bags of cocaine.

Cole claimed the strip search was unreasonable under the Supreme Court holding in Florence v. Board of Chosen Freeholders (566 U.S. 318 (2012)). In Florence, the Court upheld jail policies requiring a strip search of incoming inmates placed into general population, “regardless of the circumstances of the arrest, the suspected offense, or the detainee's behavior, demeanor or criminal history.” Cole argued that, because he was arrested on minor charges, it had not been determined that he would enter the general jail population. In theory, Cole might have posted bail or have been taken before a magistrate and released without bail.

In Florence, the Supreme Court held that “correctional officials have a significant interest in conducting a thorough search as a standard part of the intake process,” and noted that correctional facilities “face grave threats posed by the increasing number of gang members who go through the intake process.” The Court also noted a thorough search helped identify health conditions that might threaten the safety of the facility, inmates and staff. Though Cole was not yet placed in general population, he was being held in a booking area where prisoners were held in group cells.

The Virginia Supreme Court held that the dangers of “disease, gang-based violence, and the disruption of jail safety due to an underground economy trading in contraband” cited in Florence applied to group detention in a booking area. Thus, the decision to conduct a strip search of prisoners charged with drug offenses, and who might bring drugs hidden in body orifices or undergarments, was consistent with the Florence ruling. Even though the search was based on minor drug charges and happened before Cole had the opportunity to see a magistrate or post bail, the court ruled the search reasonable.


10th Circuit Does About-Face; Grants Qualified Immunity

Editor’s note: This case might seem familiar to you. It should. It was covered in Xiphos in January here.

Pauly v. White, 874 F.3d 1197 (10th Cir. 2017)

On a dark and stormy night, officers responded to a call of a probable drunk driver “swerving all crazy.” The complainants followed the suspect driver, Daniel Pauly, and flashed bright lights. Pauly pulled over and confronted the complainants, then drove just a short distance home. The complainants called the police, provided Pauly’s registration number, and said that Pauly was “throwing up gang signs.”

Three officers responded to the location of the confrontation. The officers agreed there was no reason to arrest Pauly based on the information provided by the complainants. However, the officers decided to locate Pauly, get his side of the story, and learn whether he was intoxicated while driving.

One officer remained with the complainants as the other two drove to Pauly’s house. The officers surreptitiously—sort of—approached the house where Pauly and his brother were moving around. The Pauly brothers heard the officers sneaking up and called out, “Who are you, what do you want?” The officers laughed and said that they had the house surrounded. Then they identified themselves as the State Police (confirmed by dash camera recordings). The Pauly brothers later claimed they did not hear the officers identify themselves as police and that they feared the persons approaching their house were those involved in the road rage incident.

The Pauly brothers armed themselves and shouted they had guns. Daniel Pauly stepped into a doorway and fired two blasts from a shotgun. Samuel Pauly aimed a handgun at an officer. The officer fired and missed. The third officer, Ray White, had just arrived from the scene of the initial report. Seeing Samuel Pauly aim at another officer, Officer White fatally shot Samuel Pauly.

Daniel Pauly, suing on his own behalf and on behalf of his brother’s estate, claimed the brothers only heard someone shout, “We’re coming in.” Pauly asserted that the officers precipitated the force encounter by sneaking up to the house without announcing themselves or their purpose, leading the Pauly brothers to believe that intruders were approaching.

The Supreme Court decision of Tennessee v. Garner (471 U. S. 1 (1985)) requires that a warning be given, where feasible, prior to the use of deadly force. Officer White gave no warning. The trial court denied qualified immunity to Officer White. In Pauly v. White (814 F.3d 1060 (10th Cir. 2016)), the Court of Appeals agreed with the trial court. Viewing the evidence in the light most favorable to the plaintiff, as the court must when deciding whether to apply qualified immunity on a motion for summary judgment, the court held that reasonable officers should have understood that their conduct would cause the Paulys to defend their home and that might prompt deadly force against Samuel Pauly.

In contrast, on rehearing by the appellate court sitting en banc, 10th Circuit Court Judge Hartz observed in a dissenting opinion that no “clearly established law suggests … that an officer … who faces an occupant pointing a firearm in his direction must refrain from firing his weapon but, rather, must identify himself and shout a warning while pinned down, kneeling behind a rock wall.”

The United States Supreme Court reversed the 10th Circuit’s decision to deny qualified immunity. The qualified immunity doctrine protects officers from federal civil rights liability unless the officer violated a right that was clearly established at the time. The Court held that Officer White “did not violate clearly established law on the record described by the Court of Appeals panel.” The Court pointedly reiterated the longstanding principle that “clearly established law” should not be defined “at a high level of generality.” The 10th Circuit, the Court said, “misunderstood the ‘clearly established’ analysis: It failed to identify a case where an officer acting under similar circumstances” had been determined by a court to violate the Fourth Amendment. Without identifying such a case, the 10th Circuit couldn’t point to clearly established law that should have given notice to Officer White that his conduct was unlawful.

White v. Pauly was a clear directive to lower courts to extend extreme deference to officers in the qualified immunity analysis. The Supreme Court once again told trial and appellate courts to refrain from applying the “clearly established law” component of the qualified immunity analysis at “too high a level of generality.” In other words, unless the lower court can point to a controlling court precedent that precisely and clearly gives notice to officers of how to act, the court should grant qualified immunity. The Court’s decision bolstered the direction given the recent cases of Mullenix v. Luna (136 S. Ct. 305 (2015)) (holding that qualified immunity should apply for an officer who allegedly used deadly force in a high-speed pursuit) and Plumhoff v. Rickard (134 S. Ct. 2012 (2014)) (qualified immunity protects officers who fired upon the driver and passenger of a fleeing car).

With instructions from the Supreme Court, the 10th Circuit has now reversed course and held that the officers are entitled to qualified immunity. Even so, the appellate court issued a lengthy opinion that subtly, and strongly, tries to state a case for why the two judges behind the initial 10th Circuit opinion were right. In the court’s first Pauly decision, Judge Moritz dissented and explained why the officers were entitled to qualified immunity. Once again, Judge Moritz wrote a separate opinion; this time, however, she wrote that her colleagues improperly rehashed issues and stated her “reservation about the majority's analytical approach.”

One might look at the history of this case and only see the Supreme Court correcting the lower appellate court’s application of the law. I think there is more happening here. The Supreme Court has taken due note of circuit court judges who have written strong dissenting opinions when an appellate court rules against applying qualified immunity. Not only will lawyers for police officers be more confident in seeking qualified immunity, but judges on the losing side of a divided decision have greater motivation to speak out in hopes that the Supreme Court will vindicate their dissenting opinions. 

Physician, Heal Thyself (or at Least Follow the Doctor’s Advice)

Windham v. Harris County, 2017 WL 5245104 (5th Cir. 2017)

William Windham, a medical doctor, ignored his own doctor’s medical advice to not drive and then drove his car into the rear of another car. The passenger of the car Windham struck called 9-1-1 and reported that he had been rear-ended by an impaired driver. After the crash, Windham fell asleep behind the wheel. The responding deputy found Windham seated behind the wheel, confused, his eyes bloodshot, and unaware he had driven into the rear of another car. Windham told the deputy he had been awake for 20 hours and he had taken a controlled painkiller.

The deputy asked Windham to perform field sobriety tests. Windham gave the deputy note from a doctor stating that Windham had cervical stenosis and shouldn’t be driving. The note also stated that Windham’s neck should not be extended, but it didn’t provide any explanation of a “neck extension.” The deputy told Windham that no one would “extend his neck.” Windham agreed to take a gaze nystagmus test.

The tests were inconclusive, so the deputy decided a drug recognition expert (DRE) should be called. A DRE deputy arrived and asked Windham to repeat the gaze nystagmus test. Although Windham said that he wouldn’t be able to do the test, he agreed to take it again, and did not mention his neck condition to the DRE. The test administered by the DRE was also inconclusive. Approximately 90 minutes after the first deputy arrived, Windham was allowed to leave the crash scene.

Windham sued, alleging excessive force (arguing that the gaze nystagmus test was an unnecessary use of force), unlawful detention, false arrest and failure to accommodate a disability.

Officers can be sued under the Americans with Disabilities Act (ADA) for alleged failures to reasonably accommodate disabilities in non-exigent contacts. Windham claimed the deputies were on notice of his alleged disability and the need to accommodate him. When a disabled person is dealing with the police, the law requires the disabled person to request a necessary accommodation. If the disabled person makes no request, the police can’t be held liable for failing to accommodate the disability.

Windham never told the deputies that he physically could not perform the gaze nystagmus test or that it might injure him. Although Windham was somewhat reluctant to perform field sobriety tests and even expressed some doubt that he could perform them, the court noted that “Vague statements like these cannot transform Windham’s somewhat-obscure condition into one for which the limitations and necessary accommodation were ‘open, obvious, and apparent’” (see Taylor v. Principal Financial Group Inc. (93 F.3d 155, 164 (5th Cir. 1996)). Even if the note put the deputies on notice that Windham had a neck-related disability, it didn’t amount to notice that Windham’s disability limited him in performing the gaze nystagmus test. Nor did the note or Windham himself give the deputies any notice of just what accommodation Windham needed.

Windham asked the court to apply the narrow exception applicable only to people whose disabilities, limitations and necessary accommodations are “open, obvious, and apparent.” Though his disability wasn’t as readily apparent as deafness, blindness or confinement in a wheelchair, Windham argued that his doctor’s note made his disability “obvious” to the deputies. The court disagreed.

The court also made quick work of Windham’s claims of unlawful detention and false arrest. Windham alleged the deputy had no reason to detain him after he found Windham sawing logs behind the wheel, having driven his car into the trunk of the car in front of him. Enough said? Reading the court decision, one can almost hear the judges chuckling. Notwithstanding, the court listed multiple bases for detaining Windham, including: “(1) Windham had rear-ended the car in front of him; (2) the other driver's passenger had informed both the 9-1-1 operator and [the deputy] that he believed Windham to be intoxicated; (3) the passenger had further reported that Windham fell asleep behind the wheel while waiting for the police; (4) Windham was taking prescription-strength painkillers; (5) Windham had not slept for twenty hours; (6) Windham’s eyes appeared bloodshot; and (7) Windham appeared confused and did not know that he had struck a car.”

Windham was detained for nearly 90 minutes after the crash. He claimed the length of the detention and the temporary seizure of his driver license amounted to a de facto arrest. The court disagreed, noting that there is “no constitutional stopwatch on traffic stops.” The Supreme Court has stated that the critical factor in examining the length of detention is whether the stop “last[s] no longer than is necessary to effectuate [its] purpose” (Florida v. Royer (460 U.S. 491 (1983))). The court acknowledged that calling a DRE to the scene, which extended the investigation, was necessary to determine whether Windham should be arrested for impaired driving.

Among the seemingly endless expansion of topics for required police training is the obligation for officers to learn their legal obligations under the ADA. Recent high-profile cases alert plaintiffs’ attorneys to add an ADA claim when plausible. Like many other federal civil rights statutes, a victory under the ADA carries an award of fees for plaintiffs’ attorneys. And, by the way, listen when your doctor advises you really shouldn’t be driving.

See the following resources for general information about the ADA and police: www.lexipol.com/wp.../04/Officer-Interaction-with-Persons-with-Mental-Illness.ppt and https://www.linkedin.com/pulse/ada-use-force-ken-wallentine

Shoot or Don’t Shoot Based on a Piece of Orange Plastic?

Estate of Lopez v. Gelhaus, 871 F.3d 998 (9th Cir. 2017)

In the middle of the day, two deputies were patrolling an area known for gang activity and violent crime. They saw Andy Lopez carrying what appeared to be an AK-47 rifle, holding it by the grip, with the muzzle pointed to the ground. Lopez appeared to be in his mid- to late teens (he was, in fact, 13 years old). The deputies called for urgent backup.

One of the deputies turned on the overhead lights and chirped the siren. They then stopped the patrol car about 40 feet behind Lopez and shouted for him to drop the gun. Lopez paused for a few seconds and began to turn toward the deputies, rotating the gun with him and beginning to raise the barrel.

A deputy shot Lopez several times in the chest. When deputies approached Lopez, they discovered that the gun was a plastic toy gun, but lacked the standard orange tip. Lopez died at the scene and his estate sued the deputy who shot Lopez.

The deputy asked the court to apply qualified immunity and to dismiss the suit. To determine whether to grant qualified immunity, the court asks whether the deputy violated a constitutional right and whether that right was clearly established at the time of the deputy’s act. As the courts have noted, “Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects ‘all but the plainly incompetent or those who knowingly violate the law’” (Ashcroft v. al-Kidd, 563 U.S. 731 (2011) citing Malley v. Briggs, 475 U.S. 335 (1986)).

The appellate court held that qualified immunity should not be granted. The court questioned whether Lopez acted in a threatening fashion as he turned and noted that Lopez was only told to “drop the gun”—not told to “drop it or we’ll shoot.” Further, the court speculated that Lopez only turned to see who was shouting at him.

One judge dissented. In his dissent, Judge Wallace criticized the majority’s failure to understand the danger perceived by the deputy. Judge Wallace wrote: “[t]he record is replete with evidence that [the deputy] did not realize and could not have discerned that [Lopez] was carrying a fake gun instead of an authentic AK-47. First, it is undisputed that the gun was missing the bright orange tip required by federal law. 15 U.S.C. § 5001(b)(1). This tip immediately would have identified the gun as a fake; conversely, its absence would suggest to an observer that the gun was real.”

Though we commend Judge Wallace’s understanding of the danger presented by a suspect who doesn’t drop the gun and instead turns toward deputies, he is mistaken that an orange plastic tip would conclusively establish the gun as a fake that presents no danger. In 2014, police in San Leandro, Calif., found two real AK-47 rifles in a drug dealer’s home, both fitted with orange plastic tips. One can only guess why a drug dealer would want to add orange tips to real assault rifles.

The clarity of 20/20 hindsight in this case shows the deputy shot a person with a fake AK-47. In Graham v. Connor (490 U.S. 386 (1989)), the U.S. Supreme Court cautioned that “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene,” rather than with retrospection. Though the majority in this case cited other reasons for denying qualified immunity, assessing the lethality of a gun based on seeing a small piece of orange plastic is just the sort of 20/20 hindsight rejected by the Supreme Court.

Doorway Arrest Didn’t Violate Fourth Amendment

People v. Garvin, 2017 WL 4779544 (N.Y. 2017)

Sean Garvin committed several bank robberies by the time police found his fingerprint on a demand note used at one of the banks. The same day investigators matched the fingerprint to Garvin, officers went to Garvin’s home. They knocked, Garvin answered the door, and an officer told Garvin that he was under arrest. Garvin turned around and presented his hands for handcuffing while standing in the doorway. The officers didn’t enter the home to arrest Garvin.

After officers told Garvin his fingerprint and his girlfriend’s fingerprint were found on the demand note, Garvin admitted to the robberies. However, he later asked the court to suppress his confession, claiming he had been unlawfully arrested.

Garvin asserted the police had violated the rule of Payton v. New York (445 U.S. 573 (1980)). In Payton, the U.S. Supreme Court held “the Fourth Amendment ... prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest.” In other words, there is a hard and fast line drawn at the threshold of the home. To cross that line requires either a warrant or exigent circumstances. The prosecution has a particularly heavy burden of showing in court that an entry into a home to make a warrantless arrest is based on sufficient probable cause and exigent circumstances (Welsh v. Wisconsin, 466 U.S. 740 (1984)). A valid felony arrest warrant carries the inherent authority to enter the named suspect’s home. Though there are some exceptions, generally, an officer must have a search warrant to enter a third party’s home to arrest the suspect, even if the officer possesses an arrest warrant for the particular suspect (Steagald v. United States, 451 U.S. 204 (1981)).

Garvin correctly claimed there were no exigent circumstances because the officers had his home surrounded. He also asserted that the officers didn’t take the time to obtain a warrant because they wanted to interrogate him without counsel. Garvin then urged the court to require a warrant anytime a suspect is arrested at home (absent exigent circumstances).

The majority rejected Garvin’s arguments; as long as a suspect comes to the door voluntarily and opens the door, the suspect may be arrested. Only when officers cross the threshold to take the suspect into custody does the warrant requirement, or a legitimate exception thereto, apply.


If the Key Fits, Turn It?

United States v. Bain, 2017 WL 4563821 (1st Cir. 2017)

Yrvens Bain was on probation following a series of drug trafficking convictions and some prison time. Investigators made multiple controlled buys of heroin from Bain, but Bain was ultimately arrested for an unrelated fight. Upon release from jail, Bain told his probation officer that he would be living with his mother, but the probation officer never saw Bain’s car parked at his mother’s house and never saw Bain there.

Shortly after his release, Bain sent a text message to a confidential informant. He wrote that he’d been away for a few days, but was now back in the heroin supply trade. Investigators directed the confidential informant to make another controlled buy of heroin.

When officers went to arrest Bain, they saw him walking out of a multifamily residence. They approached Bain just as he reached his car, where he locked himself inside and swallowed something. The officers got Bain out of the car, arrested him, and searched him, finding a set of keys.

The officers took the keys into the residence and tried the keys on the various apartments. One key fit an entry door on a second-floor apartment. The officers obtained a search warrant for that apartment and a subsequent search revealed a credit card-making machine, latex gloves, plastic baggies with the corners torn off, Bain’s identification, a parking ticket for Bain’s car, heroin, fentanyl, a razor blade, assorted pills, a handgun with an obliterated serial number and a magazine containing bullets.

Bain asked the court to suppress the items found, claiming that the act of trying the key in the lock was, in fact, a warrantless search prohibited by the Fourth Amendment. The court began its analysis by questioning whether the lock itself was within the home’s curtilage. If so, under the Supreme Court decision in Florida v. Jardines (569 U.S. 1 (2013)), turning the key was a search. The scope of the curtilage of a home is determined by considering four factors: the proximity to the home, whether it is fenced or otherwise enclosed, the nature of the use of the area, and the efforts the resident takes to screen the area from public view (United States v. Dunn, 480 U.S. 294 (1987)).

The court held that inserting and turning the key was a search. The lock was certainly proximate to the home and it is the very tool used to screen the home from public view or entry. The court further held that “without the information obtained by turning the key, there was no probable cause to issue a warrant to search” the apartment. Thus, the warrant was invalid.

Still, at the end of the day, Bain becomes a five-time loser. The court held that the officers reasonably relied on the search warrant. Applying the good faith rule of United States v. Leon (468 U.S. 897 (1984)), the evidence was admissible against Bain. Though they were technically mistaken in trying the key in the door, the fact that the officers took the trouble to obtain a warrant to search the apartment showed their good faith and saved the evidence from suppression.


Your Call: Search or No Search?

Collins v. Commonwealth, 790 S.E.2d 611 (Va. 2016), cert. granted sub nom Collins v. Virginia, No. 16-1027 (U.S. Sept. 28, 2017)

A motorcyclist on an orange and black Suzuki, modified for drag racing, eluded police on two occasions within a few weeks. During the second event, an officer abandoned the pursuit after the cyclist hit 140 miles per hour. Using dash-camera footage, the officer obtained a photo of the license plate and the rider. The rider’s face was obscured by a tinted helmet face shield.

Using the plate number, the officer contacted the most recent plate registrant, Eric Jones, who said that he had sold the bike to Ryan Collins.

Sometime later, the officer heard Collins’ name broadcast on the radio in connection with an unrelated matter (Collins was at the DMV, trying to register a stolen Acura sedan). Both officers who had chased the Suzuki responded to Collins’ location and spoke with him. Collins said that he didn’t know anything about the Suzuki and hadn’t ridden a motorcycle in many months. As the first officer was speaking with Collins, the other officer checked Facebook and found a picture of the Suzuki parked next to the same stolen Acura in the driveway of a house. Collins denied knowing anything about the bike or the house.

About an hour later, the officer found the house. He saw a motorcycle partially covered by a tarp. He could see the same distinctive chrome accents that were on the bike he had chased. The location and angle also appeared the same as the photo on Collins’ Facebook page. The officer walked a car length or two onto the property, lifted the tarp, and instantly recognized the Suzuki.

Collins was convicted of receiving stolen property and sentenced to prison. He argued that the officer made an illegal search at his home.

·         Was there a search?

·         If so, was the warrantless search justified by an exception to the warrant requirement?

·         Which exception and why does it apply here?

The U.S. Supreme Court recently agreed to consider Collins’ appeal. Stand by, and we’ll see whether your reasoning and conclusions match the justices of the high court. 


Rear Seat Search Allowed to Gain Trunk Access

United States v. Mirabal, 2017 WL 5761191 (10th Cir. 2017)

A deputy had reliable information (a tip from other government agents) that Gabriel Mirabal, a convicted felon, had an assault rifle in the trunk of his car. The deputy saw Mirabal speeding and stopped him. When the deputy opened the trunk to search for the assault rifle, he saw a large speaker box blocking his view into the deeper part of the trunk. He tried to move the speaker box, but could not. Based on his military experience, the deputy knew that an assault rifle could be hidden behind the speaker box.

The deputy went to the back seat, intending to try to fold down the seat and get a look at the back of the speaker box. First, however, he pulled down a folding recessed armrest. When he pulled down the armrest, the deputy saw a package of cocaine.

Mirabal challenged the scope of the deputy’s search, claiming that the search was constitutionally flawed. He argued that the space behind the speaker box was too small to hide an assault rifle, that the deputy could have crawled over the speaker box and viewed behind it, that the deputy did not know whether the rear seat had a trunk-access panel, and that the armrest was too small to hide a rifle.

The court made short work of Mirabal’s arguments, however, citing elements of the deputy’s testimony. The deputy testified his familiarity with the size of rifles. He also testified about his knowledge that many car trunks can be accessed through the back seat and that is sometimes the only practical way to search the rest of the trunk. The court had little difficulty in ruling against Mirabal because the deputy carefully connected the probable cause to search the trunk to the progressive steps of the search. The court held that the deputy’s “effort to see into the back of the trunk was reasonable.” Though only a traffic stop, building the case step by step and carefully reporting the reasons for taking the search to the back seat ensured admission of the evidence and the resulting conviction.


Warrant Check for Passenger Upheld

George Martinez was a passenger in car stopped for a vehicle registration violation. The officer asked both the driver and Martinez for identification. After discovering the driver had a valid license and no warrants, the officer checked Martinez for warrants and found he had an outstanding warrant. The time to check warrants for Martinez was between one and five seconds. The officer arrested Martinez within three minutes of the initial stop.

During a search incident to arrest, the officer found a pipe with methamphetamine in Martinez’s pocket. Martinez asked the court to suppress the drug evidence, claiming that the officer violated the Fourth Amendment when he asked Martinez for identification. The Utah Supreme Court held that the officer’s brief extension of the traffic stop to check for warrants on the passenger did not violate his rights.

The court cited substantial precedent from other courts, including the U.S. Supreme Court, holding that the risks associated with traffic stops are greater when there are passengers and those risks justify warrants checks on passengers: “Because passengers present a risk to officer safety equal to the risk presented by the driver, an officer may ask for identification from passengers and run background checks on them as well” (United States v. Rice, 483 F.3d 1079 (10th Cir. 2007)). In Rodriguez v. United States (135 S.Ct. 1609 (2015)), the Supreme Court stated because “traffic stops are ‘especially fraught with danger to police officers,’” an officer may “need to take certain negligibly burdensome precautions in order to complete his [SG1] mission safely.”

The Utah high court held that “running Martinez’s background was a ‘negligibly burdensome precaution’” that did not unreasonably extend the traffic stop. Moreover, the officer didn’t order or compel Martinez to identify himself; he politely asked for identification and Martinez cooperated. Using the language of consent, being professionally polite and quickly performing the warrants check persuaded the court that the evidence should not be suppressed. Another reminder for officers to “talk nice, think mean.” State v. Martinez, 2017 WL 3262125 (Utah 2017)


Blind Date Ends Badly

New Year’s Eve didn’t end well for Louis Roberson. The evening started auspiciously. Roberson met a blind date in the parking lot of Slick Willie’s Pool Hall, and within a few minutes, he had enticed his date to try marijuana for the first time. She seemed happy to go along. Who knew where the evening might lead?

But then four police cars drove into the parking lot. The officers were conducting directed enforcement in response to Slick Willie’s request for additional patrol. The officers were also aware the parking lot was the location of many fights and drug deals.

The officers drove toward Roberson’s car, but did not block his exit path. They shone takedown and spot lights on the newly acquainted couple. As two officers strode “resolutely” toward the car, Roberson hastily began shoving things under the seat. The officers told Roberson and his date to show their hands. The woman immediately complied. The officers repeated their commands, drew their guns and advanced toward Roberson. Even facing drawn guns, Roberson continued to push something under the seat.

After three or four commands from the officers, Roberson put his hands on the steering wheel. The officers could smell marijuana coming from the car. They searched the car and found a gun under Roberson’s seat where he had been making stuffing motions. They also found a bag of marijuana in the center console. Roberson was charged with being a felon in possession of a gun.

Roberson claimed that he was “seized” without reasonable suspicion, and that the drug and gun evidence should be suppressed. In Terry v. Ohio (392 U.S. 1 (1968)), the Supreme Court held that a “seizure” occurs when an “officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Later, the Court held that a person is seized “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave” (United States v. Mendenhall, 446 U.S. 544 (1980)).

The critical question in Roberson’s case is when he was seized. Roberson was eventually arrested; he was certainly seized then. But did the officers seize Roberson as they shouted commands for him to show his hands—commands that he ignored? Roberson claimed he was seized when officers shouted commands—before officers smelled the marijuana and before they had reasonable suspicion to seize him.

Deciding when a reasonable innocent person would feel free to leave or to refuse an officer’s request during an encounter is highly fact-dependent. Courts have found that blocking a person’s path, holding onto a person’s identification or other property, displaying pointed guns or using emergency lights can all lead to finding a person was seized. However, not every encounter where an officer gives instructions or asks questions means a person is actually seized.

Despite the number of officers and the use of spotlights and takedown lights, the court held Roberson was not seized at the time officers told him to show his hands. Foremost, Roberson didn’t comply; he didn’t submit to the officers’ authority. The Supreme Court has held that there is no seizure when a person doesn’t actually submit to the officers’ commands or show of force (Brendlin v. California, 551 U.S. 249 (2007)).

The two judges in the majority agreed that Roberson was not seized prior to the point that officers had reasonable suspicion of criminal activity. The concurring opinion went so far as to state that the officers’ commands to show hands did not even constitute a show of authority. Additionally, the court felt the number of officers was reasonable when factoring the time of night and the high-crime location.

This case illustrates effective and safe police work that didn’t compromise Roberson’s constitutional rights. Though the officers were rightfully cautious, they were careful to not block Roberson in. Nor did they show force, drawing their weapons, until Roberson began stuffing something—later found to be a gun—under his seat. The concurring judge observed, “If there is a less ‘intrusive’ way to safely and effectively patrol such an area and conduct consensual interviews, it is not apparent to me.” United States v. Roberson, 864 F.3d 1118 (10th Cir. 2017)

Death Sentence Overturned Because Defendant Wore Stun Belt in Court

John Stephenson was convicted of killing three people in 1996. Though the trial lasted eight months, the jury only took one day to recommend the death penalty. During the penalty hearing, Stephenson wore an electronic restraint (stun belt) under his clothing. Several jurors later stated they were aware of the bulky belt.

Stephenson petitioned for habeas corpus relief from the federal court. He alleged that his trial attorney was ineffective for failing to object to the stun belt. A federal trial court ruled that Stephenson had not been prejudiced by wearing the stun belt. The court opined that even if jurors observed the belt during the penalty phase, the jury could already conclude that Stephenson, having murdered three people, was a dangerous person. Stephenson appealed.

The court of appeals ordered a new penalty hearing for Stephenson. The court held there were no findings on record to show that Stephenson was likely to misbehave in court. The court also held there was no way to determine what impact the belt had on those jurors who saw it, or what they told other jurors about the belt.

Lexipol’s Electronic Restraints Policy (available in the Custody manual) provides that officers obtain prior judicial approval for the use of an electronic restraint device in a courtroom. The policy also prescribes that the judge be given an overview of the device operation. Prosecutors should be attuned to governing appellate court decisions requiring that the trial judge is informed of facts supporting the use of an electronic restraint device in court, particularly when it may be visible to jurors. That wasn’t done in Stephenson’s case and now he is headed back to court for a new sentencing hearing, 21 years after the murders. Stephenson v. Neal, 2017 WL 3319296 (7th Cir. 2017)


Inmate’s Cell Phone Inside a Halfway House May Be Searched Without Cause

Richard Jackson was convicted of failure to register as a sex offender. After his prison term, he was released to a halfway house under a court order that required him to obey parole and halfway house rules. The halfway house rules barred residents from possessing cell phones in the facility.

An officer found Jackson with a cell phone inside the facility. Though the officer returned the phone, he warned Jackson the phone would be searched upon any further violation. Within a few days, a staff member found another resident with Jackson’s cell phone. A subsequent search revealed pornographic images. A forensic examination discovered 37 images of known child pornography. Jackson was convicted of possession of child pornography.

On appeal, Jackson claimed the warrantless search of his phone was unconstitutional and the child pornography should have been suppressed. Jackson argued that Riley v. California (134 S.Ct. 2473 (2014)) prohibited officers from searching his phone without a warrant. In Riley, the Supreme Court held that officers must generally obtain a search warrant before searching data on a cell phone that is seized incident to an arrest.

The Supreme Court has approved suspicionless searches of parolees whose parole terms include random search provisions. In Samson v. California (547 U.S. 843 (2006)), the Court held that “the essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence.” Because Samson knew that the terms of his parole dictated he could be searched by a police officer at any time, the Court ruled he did not have a legitimate expectation of privacy.

Citing Samson, the court of appeals held that Jackson lacked a legitimate expectation of privacy in his phone and the government had substantial interests that justified the search. Note that the decision does not mean any officer may search a parolee’s cell phone at any time. The holding in Jackson is based on the parole conditions and halfway house rules that specifically banned cell phones in the facility and warned of suspicionless searches of property inside the halfway house. United States v. Jackson, 2017 WL 3429837 (8th Cir. 2017)


Confession Is Good for the Soul—Bad for Court

Jaime Bauzó-Santiago wrote a note to the judge presiding over his trial for illegal possession of a firearm. The note stated, “I have a situation with my lawyer ... he has no interest in my case [and] I do not have good communications with the lawyer ... Because of these reasons I would like to ask of the Honorable Judge to change counsel ... if possible. I want to take advantage to notify you that I, Jaime Bauzó-Santiago ... have always accepted my responsibility as to guilt, the only thing that I ask of you is that the time for the weapons law crime be a reasonable one.” Bauzó-Santiago signed the note.

Not surprisingly, the court read the note and disclosed its contents to the prosecutor and defense counsel. Even less surprisingly, Bauzó-Santiago was convicted.

Bauzó-Santiago appealed and told the court of appeals that the note was part of a plea bargain discussion. As such, the note should not have been considered by the judge. I haven’t seen the appellate brief, but perhaps it said, “I know that I am guilty, you know that I am guilty, I never said that I wasn’t guilty. But it is unfair for you to find me guilty just because I said that I am guilty (oh, yeah, plus the testimony of the officer who found the gun).”

Are you shocked to learn that the court of appeals held that Bauzó-Santiago’s letter to the judge was admissible? He lost the appeal and went to prison without passing “Go” and collecting $200. We catch the dumb ones. United States v. Bauzó-Santiago, 2017 WL 3392672 (1st Cir. 2017)

No Coercive Trickery after a Burglar Rats on His “Victims”

Caleb Hunt burgled the home of Austin and Spivey. Twice, in fact. He found the takings so good the first time that he returned. Austin and Spivey had their own criminal enterprise involving credit card fraud and they stored the ill-gotten high-end merchandise at their home. Austin and Spivey reported the first burglary and installed a new alarm system. Police were summoned to the second burglary by the burglar alarm. Spivey also called the police, but not before he hid some of his contraband.

Austin and Spivey didn’t know the police had already caught Hunt. Nor did they know that Hunt admitted he burglarized the home twice because of the abundance of high-end goods. Hunt told officers the home contained devices for forging credit cards.

Two officers, one acting as a crime scene technician, went to the home and asked to inspect it for evidence of the burglary. Spivey invited them in. The pseudo-tech pretended to dust for fingerprints. Spivey provided surveillance video of the burglary.

Once the officers saw a credit card embossing machine, stacks of credit cards and a trove of new, expensive goods, the officers told Spivey and Austin that they investigated credit card fraud. The officers asked to search the entire house. Austin consented. Spivey signed a waiver of a search warrant.

The officers found a weapon, drugs and additional evidence of fraud. Austin and Spivey were charged with several crimes. They claimed that Spivey’s consent to search was the product of an illegal trick.

The court observed that Austin had made a tactical decision to call the police, apparently hoping that the police would catch the burglar. A ruse can invalidate consent when officers claim legal authority they lack, or when an officer falsely claims there are exigent circumstances. Here, however, “the officers’ ‘ruse’ was a relatively minor deception that created little, if any, coercion … Prior planning proves that Austin and Spivey understood that asking for the officers’ assistance came with the risk that their own crimes would be discovered.” United States v. Spivey, 2017 WL 2782852 (11th Cir. 2017)


Officers Sued for Withholding Exculpatory Evidence

In many jurisdictions across the nation, prosecutors are taking a more aggressive stance on Brady/Giglio lists. These lists include the names of officers who are deemed tainted in the prosecutors’ opinion. In many cases, prosecutors may refuse to file charges where the listed officers are witnesses. Being placed on a Brady/Giglio list is certainly damaging to an officer’s reputation and may even be a death knell to a career, or at the very least, to promotion.

Brady/Giglio lists take their name from two United States Supreme Court decisions addressing allegations of withholding exculpatory evidence, Brady v. Maryland (373 U.S. 83 (1963)) and Giglio v. United States (405 U.S. 150 (1972)). The Brady rule requires prosecutors to turn over any material exculpatory evidence to the defense. The rule encompasses evidence that could tend to show the defendant isn’t guilty or should receive a lesser sentence, or evidence that impacts the credibility of a witness. The sanction for failure to turn over Brady material is suppression of evidence, even if it was inadvertently withheld. Evidence may be suppressed even if the police don’t tell the prosecution about the evidence.

The Supreme Court reinforced the vitality of the Brady rule in the recent decision of Turner v. United States (137 S.Ct. 1885 (2017)), although the Court held that the burden rests on the defendant to show that the undisclosed evidence prejudiced the trial to the degree that it undermined confidence in the verdict.

In Giglio v. United States, the Supreme Court held that a prosecutor must disclose a deal for favorable treatment in exchange for a witness’s testimony. The Giglio decision and its progeny (United States v. Agurs, 427 U.S. 97 (1976) and Kyles v. Whitley, 514 U.S. 419 (1995)) mean that the prosecution must tell the defense about potential blemishes on the credibility of witnesses, including and especially, police officers. In Kyles, the Court imposed the duty on prosecutors to seek out such information and disclose it to the defense.

A new case signals the liability risks in failing to scrupulously follow the rules of Brady v. Maryland and Giglio v. United States. Alvarez was arrested for burglary and public intoxication. After an altercation in a holding cell, Alvarez was charged with assault on a public servant, a third-degree felony. He pleaded guilty and was ultimately ordered to serve eight years in prison.

Approximately five years into his prison term, a video came to light showing that Alvarez was innocent of the assault. Alvarez filed a writ of habeas corpus alleging his innocence. After reviewing the video, the court agreed that the writ should be granted and Alvarez should be released.

Alvarez filed suit against the city and several officers. A jury awarded Alvarez $2 million in damages and the parties stipulated to attorneys’ fees of $300,000. On appeal, the city argued that the defendants were entitled to qualified immunity. Even if the prosecution withheld the obviously exculpatory video recording, Alvarez pleaded guilty without a trial.

It may well be that Alvarez pleaded guilty as part of plea bargain. Notwithstanding, the court cited precedent establishing that a person who pleads guilty is not constitutionally entitled to be provided with impeachment evidence. The court extended this reasoning to exculpatory evidence, holding that the prosecution wasn’t constitutionally required to show Alvarez the exculpatory video recording. Thus, even though Alvarez may not have committed a crime, the fact that he entered a guilty plea entitled the defendants to win on the civil rights lawsuit.

One might argue that the officers and the city narrowly avoided a $2.3 million payout due to a technicality. But the technicality was Alvarez’s choice to plead guilty. The clear lesson of this case is to remember that failure to disclose exculpatory evidence can lead to liability for civil rights violations—and the damages can be significant. Alvarez v. City of Brownsville, 860 F.3d 799 (5th Cir. 2017)

Historical CSLI Admissible in Rabbinical Kidnap and Torture Trial

Using their collective authority to act as a beth din rabbinical court, a trio of Orthodox Jewish rabbis—Binyamin Stimler, Jay Goldstein and Mendel Epstein—authorized and carried out kidnappings and torture sessions for Jewish men who declined to divorce their wives. The rabbinical court orders, psak kefiah, authorize the use of force against a husband to coerce cooperation in the religious divorce proceedings.

Rabbi Stimler and his fellow clergy carried out the kidnappings and paid enforcers to conduct the torture and beatings. An undercover agent met with the three rabbis and claimed she needed help in persuading her husband to grant a divorce. Rabbi Epstein told the undercover agent, “What we’re doing is basically gonna be kidnapping a guy for a couple of hours and beatin’ him up and torturing him.” When the rabbis, the paid enforcers and the agent met to carry out the kidnapping, the rabbis were arrested.

The rabbis argued that prosecuting them for kidnapping and torture infringed on their free exercise of their religion. An expert witness, Rabbi Yitzchok Breitowitz, declared that it was religious commandment to use physical force against husbands who did not cooperate with the divorce process. The court disagreed, finding that the rabbis could worship without kidnapping and without hiring thugs to torture men who failed to obey their religious authority. Alternatively, the court held that the government has a compelling interest in thwarting kidnapping and that criminal prosecution was “the least restrictive way of achieving that interest.”

Although the case made headlines because it exposed little known beliefs and practices within the ultra-Orthodox Jewish community, the case is also notable because it adds to the current dialog on cell site location information (CSLI). The prosecution used a court order issued under the Stored Communications Act to obtain CSLI. The CSLI placed Rabbi Goldstein’s phone at certain locations related to the charged crimes. The rabbis argued that the prosecution should have obtained a warrant. As have most other courts, the 3rd Circuit Court of Appeals held that no warrant was required because Rabbi Goldstein did not have a reasonable expectation of privacy in his CSLI. Thus, the CSLI evidence was admissible.

Just a few weeks ago, the Supreme Court agreed to hear the appeal in United States v. Carpenter (819 F.3d 880 (6th Cir. 2016), cert. granted, --- S.Ct. ----, 2017 WL 2407484 (Mem) (June 5, 2017)). Before the end of the Court’s next term, the issue of whether the Fourth Amendment requires a search warrant for historical CSLI will be settled. United States v. Stimler, 2017 WL 2884388 (3rd Cir. 2017)

Police Error in Identification Overcome by Other Evidence

At 1300, on Oct. 30, 2013, Conrad Gonzalez should have been at a supervised visit with his young daughter. Instead, he chose to rob a bank. Officers who responded to the silent alarm suspected Gonzalez and his girlfriend because they had been involved with other bank robberies.

One of the investigators printed photos of Gonzalez’s driver license and state ID card taken three years prior. He showed the photos to the teller who was robbed. The court noted the photographs were “of poor quality, grainy, dark, of low resolution and printed on plain office paper.” The teller had already filled out a form with a description of the robber. She told the investigator she didn’t recognize the man in the photos.

Although the teller failed to make a direct connection to Gonzalez, other people soon came forward to do so. After a photo taken from bank surveillance cameras was released to the media, a sandwich shop worker recognized the distinctive Chicago Bears sweatshirt worn by the robber. She had seen a new identical sweatshirt in the shop’s dumpster (located a few blocks from the bank). Police retrieved the sweatshirt from the dumpster and found $20 bills in the pockets. The robber had asked for $20 bills from the teller. (Who robs a bank and doesn’t keep the money? We catch the dumb ones!)

In addition, the mother of Gonzalez’s girlfriend called police and reported that the photo of the robber resembled Gonzalez. Moreover, she had given him an identical sweatshirt for Christmas. She told police that Gonzalez had lost weight since his driver license photo was taken and she directed them to a Facebook photo. Using the Facebook photo, the investigator assembled a six-pack photo line-up; the teller identified Gonzalez as the robber.

Investigators also turned up video footage connecting Gonzalez to the sweatshirt. Four days prior to the bank robbery, Gonzalez’s girlfriend robbed a restaurant. Gonzalez drove. Just after the robbery, he stopped to fill up the gas tank. Gas station surveillance photos showed him wearing his (unlucky?) Chicago Bears sweatshirt.

Gonzalez presented a detailed alibi for the time of the robbery. He included details of his scheduled visit with his daughter. The social worker who supervised the visits always kept meticulous records of Gonzalez’s texts, phone calls and activities during the supervised visits. Those records, coupled with surveillance video at a McDonald’s restaurant, gutted Gonzalez’s alibi.

Gonzalez challenged the identification procedures used by the investigator. The prosecution conceded that showing the teller Gonzalez’s driver license and state identification card within minutes of the robbery was both suggestive and unnecessary. The investigator had not been trained in administering a proper photo line-up (Lexipol customers should refer to the guidelines in the Lexipol Eyewitness Identification Policy). Even so, the prosecution argued that other evidence overcame the constitutionally defective eyewitness identification procedure.

The court agreed. It held that the investigator’s identification procedures constituted “significant error,” and it found problems with the second identification procedure. Nonetheless, the court upheld Gonzalez’s conviction because other evidence of his guilt was overwhelming: “An error in the admission of identification evidence is harmless if the remaining evidence would have persuaded any reasonable jury beyond a reasonable doubt of the defendant’s guilt.”

Training and policy on proper eyewitness identification could have easily prevented the error and stopped this appeal at the beginning. Administering a proper eyewitness identification procedure isn’t particularly difficult, but certain constitutionally prescribed steps must be followed. Take the time to learn how to do it right and avoid the risk of losing an otherwise solid conviction. For additional tips on eyewitness identification, watch this on-demand webinar.) United States v. Gonzalez, 2017 WL 2928780 (7th Cir. 2017)

Pretext Commercial Vehicle Inspection Stop Held Unconstitutional

Troopers received a tip that a tractor-trailer with a white box trailer and Michigan license plates was carrying illegal drugs. Told that he would need to observe his own basis for a stop, a trooper sat near the freeway watching for the truck. The trooper and a partner stopped the truck and performed a North American Standard Level III commercial vehicle inspection.

As the troopers were conducting the truck inspection, another trooper deployed a detector dog for a sniff. Following a positive final response, and with the consent of the driver, Orozco, the troopers searched the sleeper cab. They found 26 pounds of methamphetamine and 6 pounds of heroin.

Orozco asked the court to suppress the drugs, asserting that the Level III truck inspection was an impermissible pretext and the trooper’s only motivation in stopping him was to search for drugs. The court agreed. The drugs were excluded as evidence.

Carefully understanding the court’s logic and the interplay with the permissible pretext doctrine of Whren v. United States (517 U.S. 806 (1996)) will help officers avoid similar results. Each state that receives federal highway funds must have a commercial vehicle safety plan. The Federal Motor Carrier Safety Administration state public safety partners conduct approximately 3.4 million truck and bus roadside inspections each year. The commercial vehicle inspection and traffic enforcement programs are intended to reduce serious driver and vehicle violations, prevent crashes and save lives. Reliable estimates show that commercial vehicle enforcement and inspections prevent roughly 15,000 crashes and save about 500 lives each year.

Orozco began his appellate argument with one strong point in his favor. The prosecution conceded there was no reasonable suspicion for the stop, though the reasons for this critical concession are not entirely clear from the record. Thus, the court was left to consider whether stopping Orozco for reasons unrelated to administrative purposes of the motor carrier safety plan scheme was an unlawful pretext.

In Whren v. United States, the Supreme Court ruled that no Fourth Amendment violation occurs for a traffic stop based on a minor violation when the violation is a pretext rather than the actual motivation for the stop. The Supreme Court reaffirmed its rejection of subjective pretext as an unreasonable basis for a stop in Arkansas v. Sullivan (532 U.S. 769 (2001)).

 These permissible-pretext cases dealt with drug crime investigation stops where the officers based the stops on traffic violations—not on an administrative or regulatory inspection scheme. However, the Supreme Court has scrutinized the subjective motives of police officers in a number of administrative search cases and certain special-needs searches (United States v. Knights, 534 U.S. 112 (2001)). The administrative inspection scheme in Orozco’s case allowed officers to randomly stop commercial vehicles and conduct limited safety inspections without any suspicion. Investigatory purposes and motives may not matter in pretext stops that follow witnessed violations, but motives matter when relying on administrative search doctrines.

The prosecution conceded “that, but for the tip, the officers would not have stopped” Orozco. One of the troopers testified it was “common knowledge that if you suspect criminal activity, that you can use your administrative powers to make a stop.” To be clear, that’s not the law. If an officer suspects criminal activity and observes a violation—even a minor traffic violation—a lawful stop can follow. But if an officer suspects criminal activity and there is no reasonable suspicion of a violation—as the prosecution conceded in this case—the stop is unlawful.

Thus, the court’s interpretation of the pretext doctrine, and its decision that the stop of Orozco was illegal, is narrowly limited to a situation where the prosecution can show no evidence of at least some reasonable suspicion of a violation. The court emphasized “that the presence of a criminal investigatory motive, by itself, does not render an administrative stop pretextual ... Nor does a dual motive—one valid, and one impermissible.” United States v. Orozco, 2017 WL 2367983 (9th Cir. 2017)

Supreme Court Accepts Cell Site Location Information Petition

As we’ve followed the rapid development of Fourth Amendment jurisprudence related to cell site location information (CSLI), we’ve told you about several cases likely to garner review by the U.S. Supreme Court. Following our prediction last month that the Court would soon grant review in one of the cases we featured, the Court agreed to hear the case of Timothy Carpenter’s armed robbery convictions based, in part, on CSLI. The Court will consider whether warrants are needed to obtain historical cell site data during criminal investigations (Carpenter v. United States, 819 F.3d 880 (6th Cir. 2016), cert. granted, 2017 WL 2407484 (June 5, 2017)).

Just this month, the 5th Circuit became the second federal circuit court of appeals to hold that no warrant is required for prospective or real-time CSLI (see United States v. Wallace and United States v. Riley, below). In both the Carpenter and Wallace cases, the courts relied on the third-party doctrine, holding that no “search” occurs because the phone user voluntarily reveals the CSLI to a third party—the cellular service provider—and investigators obtain the CSLI from the service provider. A number of state and federal courts have concurred that no warrant is required for historical CSLI, also relying on the third-party doctrine.

Some legal scholars, however, have voiced concern that the traditional third-party doctrine is due for an overhaul. It is based on cases dealing with paper bank records and pen register information from a landline telephone (United States v. Miller, 425 U.S. 435 (1976); Smith v. Maryland, 442 U.S. 735 (1979). In her concurring opinion in the GPS tracking case of United States v. Jones (132 S.Ct. 945 (2012)), Justice Sonia Sotomayor wrote that it “may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”

No matter what the outcome in Carpenter, the Court is almost certain to craft new privacy rules for the digital age. Should the defendant prevail, expect a landslide of challenges to CSLI evidence and related digital data seizures. The Court could easily use the Carpenter case to reshape, reform or reject the third-party doctrine in digital privacy matters.

Courts Uphold Collection, Admission of Real-Time Cell Site Location Information Without a Search Warrant

Recent cases from the 5th and 6th Circuits provide insight into the courts’ thinking around use of real-time cell site location information (CSLI).

In the 5th Circuit case, a confidential informant told an investigator that Wallace, a known gang member and fugitive, was living in the Austin area. The investigator obtained an order for real-time location of Wallace’s cell phone. Using that information, the investigator located and arrested Wallace on a fugitive warrant. Incident to the arrest, the investigator searched Wallace and found ammunition in his pocket and a gun nearby.

Wallace argued the order to obtain his cell phone location was invalid because the investigator was not engaged in an ongoing criminal investigation. Joining the national judicial discussion on whether obtaining real-time CSLI is a search under the Fourth Amendment, the 5th Circuit held that it was not a search.

Relying on the third-party doctrine (cell phone users voluntarily disclose their locations to third-party cellular service providers), the court had previously held that obtaining historical CSLI is not a search. In this case, the court held that obtaining prospective CSLI is also not a search under the Fourth Amendment: “There is little distinction between historical and prospective cell site data.”

Thus, the court concurred with the 6th Circuit, the only other federal appellate court thus far to consider whether obtaining real-time cell site information is a search. Quoting the 6th Circuit decision in United States v. Skinner (690 F.3d 772 (6th Cir. 2012)), the court stated, “[w]hen criminals use modern technological devices to carry out criminal acts and to reduce the possibility of detection, they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them.”

The 6th Circuit doubled down on the real-time CSLI ruling in a separate case. Fleeing charges of armed robbery of a check-cashing outlet, Riley bought a new cell phone. His girlfriend provided the phone number to investigators. The investigators obtained a court order (not a search warrant) for active pinging and real-time CSLI. Using the CSLI provided by the phone service provider, investigators narrowed Riley’s location to a motel within seven hours after serving the order.

Investigators went to the motel located by the cell phone pinging. They showed Riley’s picture to the motel clerk. The clerk said that a man who matched the photo had checked in under the name of “Rico Shawn Lavender” (bonus points for creativity), and pointed out the room. Investigators arrested Riley, finding a gun in his possession and adding to his charges.

Again relying on the third-party doctrine, and the fact that the monitoring lasted only seven hours, the court held that the investigators lawfully obtained the CSLI. The court also noted the CSLI only revealed Riley’s movements in public areas; it was the motel clerk who pinpointed the location of Riley/Lavender.

Judge Boggs wrote a separate concurring opinion in which he suggested the third-party doctrine alone might not justify tracking Riley’s CSLI. Judge Boggs noted that Riley was a fugitive, for whom there was an active felony arrest warrant: “The robber may not both seek refuge from execution of the warrant and simultaneously broadcast his location by carrying a GPS-enabled cell phone.” United States v. Wallace, 857 F.3d 685 (5th Cir. 2017) and United States v. Riley, 2017 WL 2413819 (6th Cir. 2017)

Dual-Stop Technique Results in Voided Seizure of Drug Money

A trooper stopped Gorman for a left lane passing violation on the interstate freeway. The trooper’s conversation with Gorman caused the trooper to suspect that Gorman was carrying drug money. The trooper requested a drug detector dog team, but no team was available in that area.

After a series of computer checks, the trooper returned Gorman’s documents to him and told him that he was not issuing a citation. The trooper didn’t tell Gorman that he was free to leave, and he continued to question Gorman. The trooper also contacted EPIC (El Paso Intelligence Center) and found a “hit” on Gorman as a suspected drug courier, but with no warrants or holds.

The trooper asked Gorman questions about how he made money and whether he was carrying money. Gorman claimed to have about $2,000 in cash. When the trooper asked for consent to search the motor home, Gorman declined. The trooper then released Gorman. Walking back to his car, the trooper muttered, “He’s carrying money.”

The trooper called ahead to a neighboring jurisdiction and said he suspected Gorman was carrying drug money, but that only a drug detector dog was likely to produce probable cause for a search. Down the road, a deputy sheriff heard the dispatch broadcast. The deputy telephoned the trooper and learned the facts of the first stop. The deputy then drove to the freeway to watch for Gorman.

The deputy spotted Gorman’s motor home on the freeway. As soon as the deputy observed a traffic violation, he stopped Gorman. The deputy requested the same computer checks on Gorman, including the EPIC inquiry. The deputy deployed his detector dog for an exterior sniff. The dog gave a positive final response at the rear cargo area exterior.

After obtaining a search warrant based on the dog sniff, the deputy searched the motor home. He found $167,070 in cash, two large empty duffle bags and a large empty hard-sided storage case. Gorman was not charged with any crime. The federal prosecutor initiated a forfeiture action for the cash.

The prosecution conceded the prolonged detention of the first stop was illegal. A stop for a traffic violation may take the time necessary to determine “whether to issue a traffic ticket” and “checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance” (Rodriguez v. United States, 135 S.Ct. 1609 (2015)). Extending the stop beyond that time requires an independent reason to further detain the driver.

The appellate court applied the “fruit of the poisonous tree” analysis to the second stop, asking whether the illegality of the prolonged first stop tainted the evidence obtained after the dog sniff. The “fruit of the poisonous tree” asks whether “the illegal activity tends to significantly direct the investigation to the evidence in question … The focus, in other words, is on the causal connection between the illegality and the evidence.”

The court opined that the trooper’s and deputy’s dealings with Gorman were “a single integrated effort by police to circumvent the Constitution by making two coordinated stops.” The court did not separately analyze the lawful portion and the unlawful portion of the first stop, concluding instead that “the facts here show clearly that part of the impetus for the second stop did come from the unlawful portion … There is an indisputable ‘causal connection’ between Gorman’s concededly unlawful detention and the dog sniff and its fruits … We conclude that the illegality of the first detention ‘tainted’ the evidence obtained during the second stop.”

Even where the “fruit of the poisonous tree” doctrine may apply, the Supreme Court has outlined certain exceptions to the doctrine, including:

·        The independent source doctrine, in which a court considers whether evidence discovered in an unlawful search was also independently obtained from a separate, independent source.

·        The attenuation doctrine, applicable when the connection between the illegal act and finding the evidence is so attenuated that it dissipates the taint caused by the illegal act. When determining whether to apply the attenuation doctrine, courts consider the temporal proximity of the illegal conduct and finding the evidence in question; whether, and to what degree, there are intervening circumstances; and “the purpose and flagrancy of the official misconduct.”

·        The inevitable discovery doctrine, which permits a court to admit evidence that would have been inevitably discovered even without a constitutional violation.

·        The inapplicability of the exclusionary rule to civil proceedings or probation hearings.

·        The use of the evidence to impeach a defendant.

The appellate court held that no exception applied. Thus, the second stop and the subsequent detector dog sniff were illegal. Gorman was entitled to the money and his attorney fees. United States v. Gorman, 2017 WL 2508624 (9th Cir. 2017)

Note: Special thanks to Dr. Terry Fleck for his insights on the detector dog sniff. To follow the latest developments in all matters related to police service dogs, visit his site: www.k9fleck.org.

Who Holds a Privacy Interest in a Shared Front Porch?

An officer conducting plainclothes surveillance saw Leslie walk up to the front porch of a triplex residence known for gang and gun activity. The yard around the triplex was fenced. A common porch ran the along the front of the residence. As Leslie walked up to the porch, he rapidly looked from side to side, as if looking to see whether he was being watched, and then crouched down, appearing to manipulate an object. The officer believed that Leslie was stashing a gun.

The officer next saw Price walk over to the same part of the porch, look from side to side and crouch down. Leslie walked back to the same spot twice more, each time looking around and crouching down. The third time that Leslie walked to the porch, he stood and pantomimed firing a long gun into the air. The officer called for other officers to assist.

Several officers walked up the sidewalk of the residence and began to talk to the four men on the porch. One officer walked to the side of the porch, where Leslie had thrice walked and bent down. The officer saw a sawed-off shotgun on the ground under the porch. The shotgun could not be seen from the street or from the fence near the sidewalk, but it was in plain view from the left side of the yard if one walked behind a recycling bin in the yard.

The officers arrested Leslie and Price. Leslie challenged the admission of the illegal shotgun. The trial court ordered suppression of the gun, relying on Florida v. Jardines (133 S.Ct. 1409 (2013)). In Jardines, the Supreme Court held that a warrantless drug detector canine sniff of a front porch of a single-family home was an improper search.

The front porch of a residence is generally part of the curtilage, requiring a warrant, consent or some other Fourth Amendment warrant requirement exception. The court was faced with the question of whether the officer’s movement to the side yard of the triplex was within the curtilage of the home, triggering the warrant requirement.

The Supreme Court has yet to rule on whether porches and side yards of a multifamily dwelling are within the constitutionally protected curtilage. Lower courts facing this question have applied a four-factor test from United States v. Dunn (480 U.S. 294 (1987)) to define the area of “curtilage”:

1.       Proximity to the home

2.       Whether it is fenced or otherwise enclosed

3.       The nature of the use of the area

4.       Efforts the resident takes to screen the area from public view

Considering the Dunn test, the Massachusetts Supreme Court held that the porch and side yard area were protected as part of the curtilage: “The intrusion into the side yard to search for a suspected hidden weapon was no different from bringing a drug-sniffing dog to the front porch of a single-family home.” Thus, the shotgun could not be used as evidence against Leslie and Price.

What might an officer do to bring a different result? Would asking a suspected gang member for consent to look under the porch always fail? The court didn’t describe the neighboring property, but there might have been another vantage point that allowed a view of the shotgun and didn’t intrude on the curtilage. We don’t know what might have happened; even so, slowing down to think about Fourth Amendment questions is often helpful. Commonwealth v. Leslie, 2017 WL 1885833 (Mass. 2017)

No Expectation of Privacy in Ankle Monitor GPS Data

Officers suspected Mathews of committing two pawn shop robberies. Mathews was on supervised release and wore an ankle monitor. Mathews’ parole officer participated in the task force investigating the robberies. He accessed Mathews’ ankle monitor GPS records and determined that Mathews was wearing his ankle monitor in the pawn shops at the time of robberies (no one said that Mathews is a criminal genius!).

Mathews was charged with the robberies. He argued that the GPS evidence was the result of an illegal “search” of the ankle monitor data. The court agreed that parole officials were “perpetually ‘searching’ Mathews within the meaning of the Fourth Amendment for as long as he wore the ankle monitor.” However, the legal issue to be resolved was whether Mathews had a legitimate expectation of privacy in the ankle monitor GPS data.

Mathews complained that his parole officer exceeded his authority in searching the data while acting in his task force investigator role. He claimed that any other officer would have needed a search warrant to obtain the GPS data. The court ruled that the search was proper. First, Mathews had a release condition that allowed a parole officer “to search your person, vehicle, residence or any property under your control.” This search happened without intruding on Mathews’ person or property; in fact, it happened without his knowledge. Thus, reasoned the court, it did not matter whether it was Mathews’ parole officer or another officer who conducted the search. Second, the court noted that the GPS data was historical—not real-time surveillance. United States v. Mathews, 2017 WL 1407036 (D. Colo. 2017)

Pay Your Parking Tickets!

Andrew Bushey’s bad day began with a collection of unpaid parking tickets. His car registration was suspended due to outstanding parking citations. An officer saw Bushey driving down the road, but did not observe any traffic violation. The officer checked the car license plate on his mobile data terminal.

Learning that the vehicle registration was suspended, the officer stopped Bushey. The officer checked Bushey’s driver license status and learned that it, too, was suspended. As the officer spoke with Bushey, he saw signs of impairment. Ultimately, he arrested Bushey for driving under the influence and driving with a suspended driver license and a suspended registration. If only he’d paid the parking fines.

Bushey challenged the lawfulness of the computer check of his registration. In affirming the lower court, the Court of Appeals added New York to the long list of state and federal courts that have approved stops following checks of vehicle registrations without any suspicion of wrongdoing.

For example, courts have upheld:

·         Stops when an officer runs a registration check and learns that the registered owner has a suspended license. See State v. Reno (840 A.2d 786 (N.H. 2003)); State v. Halvorson (997 P.2d 751 (Mt. 2000)).

·         Stops when an officer recognizes a driver as having a suspended driver’s license. See United States v. Hope (906 F.2d 254 (7th Cir. 1990)), where the officer knew that the license suspended as of one week prior to the stop; United States v. Sandridge (385 F.3d 1032 (6th Cir. 2004)), where the officer knew that the license was suspended 22 days before the stop.

·         Stops based on running a registration check and learning that an arrest warrant has been issued for the registered owner, when the driver reasonably could be the registered owner. See State v. Penfield (22 P.3d 293 (Wash. 2001)) in which the court ruled the stop must terminate when the driver is found not to be the registered owner; State v. Oshkeshequoam (503 N.W.2d 23 (Wis. App. 1993)).

The officer who stopped Bushey was looking at the license plate to look beyond the license plate. The court agreed that the officer’s tactic was entirely legal because there is no expectation of privacy in a license plate on a car on a public road—or in the information contained on the registration record. People v. Bushey, 2017 WL 1712385 (N.Y. App. 2017)


Next Stop for Historical CSLI: Supreme Court?

After a burglary of a store that sold guns and rare coins, investigators obtained subscriber information for a phone number from which an after-hours call to the store was placed. Following this slim clue, investigators found that it was Rosario’s cell phone. Investigators then obtained cell site location information (CSLI)—without a warrant or other court order—for the phone and placed the phone at the scene and time of the burglary.

After Rosario was charged, he asked that the CSLI be suppressed because the investigators did not obtain a warrant for the information. This fact pattern can be seen in dozens of cases across the nation. In most prosecutions, as in Rosario’s case, courts apply the “third-party doctrine,” ruling that the information is willingly disclosed to a third party (the cell phone service provider) and therefore doesn’t trigger the Fourth Amendment search warrant requirement.

Every federal circuit court of appeal to consider this fact pattern has ruled that the CSLI was obtained without a Fourth Amendment search. However, the court acknowledged that many have questioned the continuing vitality of the third-party doctrine as it applies to mobile phones and similar devices. There is a petition for certiorari pending in the United States Supreme Court in a case where the circuit court of appeals held that there is no Fourth Amendment search when investigators obtain subscriber information associated with an individual’s internet protocol address from a third-party technology company (United States v. Caira, 833 F.3d 803 (7th Cir. 2016), petition for cert. filed (Sept. 11, 2016) (No. 16-6761)). Many advocacy groups are weighing in, hoping that the Supreme Court will take its next step in application of the Fourth Amendment to modern technology. United States v. Rosario, 2017 WL 2117534 (N.D. Ill. 2017)


6th Circuit Outlines Use of Force Standard for Medical Emergencies          

Corey Hill was on a near-certain collision course with death. Finding him in a profound diabetic emergency, Hill’s girlfriend called for emergency medical help. Paramedics found Hill very disoriented and combative. Hill’s blood sugar level was at 38, low enough to be considered a medical emergency because it may lead to a seizure and death.

Paramedics inserted a catheter to intravenously administer dextrose to raise Hill’s blood sugar level. An officer arrived just as Hill ripped the catheter from his arm, causing blood to spray, and Hill kicked, swung and swore as the paramedics tried to restrain him and save his life. The officer deployed a TASER® device in drive-stun mode (e.g., direct contact without probes) on Hill’s thigh, distracting Hill long enough for paramedics to secure the catheter and administer dextrose.

Hill “became an angel” and was “very apologetic” after the dextrose took effect, and paramedics took him to the hospital. Later, however, rather than express gratitude that his life had been saved, Hill sued, alleging excessive force and assault and battery. He claimed his diabetes worsened and he suffered contact burns as a result of the TASER application.

The trial court ruled that the officer violated Hill’s clearly established Fourth Amendment rights and denied qualified immunity for the officer. In a decision stunningly rife with common sense and practicality, the Court of Appeals reversed and ordered the trial judge to dismiss the lawsuit. The court held that the officer acted in an objectively reasonable manner with the minimum force necessary to bring Hill under control, and the officer helped save Hill’s life.

The trial court came to its conclusion by applying the test of Graham v. Connor (490 U.S. 386 (1989)). But as the appeals court noted, such analysis was fundamentally problematic in this case. Graham prescribes analysis of three factors to determine the objective reasonableness of force applied by an officer. The factors are:

1.       The severity of the crime at issue

2.       Whether the suspect poses an immediate threat to the safety of the officers or others

3.       Whether he is actively resisting arrest or attempting to evade arrest by flight

“[A]pplying the Graham factors to the situation that [the officer] faced is equivalent to a baseball player entering the batter’s box with two strikes already against him,” the appellate court noted. “In other words, because Hill had not committed a crime and was not resisting arrest, two of the three Graham factors automatically weighed against [the officer].”

Citing a precedent with similar facts, the court said that it was time to fashion a new test for situations where officers use force to help resolve a medical emergency:

Where a situation does not fit within the Graham test because the person in question has not committed a crime, is not resisting arrest, and is not directly threatening the officer, the court should ask:

(1) Was the person experiencing a medical emergency that rendered him incapable of making a rational decision under circumstances that posed an immediate threat of serious harm to himself or others?

(2) Was some degree of force reasonably necessary to ameliorate the immediate threat?

(3) Was the force used more than reasonably necessary under the circumstances (i.e., was it excessive)?

The Court of Appeals stated that the officer should benefit from qualified immunity if the first two questions are answered affirmatively and the third question is answered negatively.

Applying that test, it was an easy conclusion to extend qualified immunity to the officer. Hill’s combative behavior presented an immediate threat to the paramedics and to Hill himself. Though the trial court observed that the danger to Hill could have been resolved by leaving him alone, the Court of Appeals cited Hill’s likely death as an appropriate reason to use some force. Finally, the appellate court held that the officer’s decision not to wrestle Hill into compliance (he was, after all, flailing a catheterized arm), and to instead use a distracting application of the TASER, was objectively reasonable. Hill v. Miracle, 2017 WL 1228553 (6th Cir. 2017)


Court Strikes Down Probation Term Allowing Search of Cell Phone

Officers investigating a noise and trespassing complaint in an apartment parking lot spoke with Bryant as he sat in a car. An officer smelled the strong odor of marijuana and asked Bryant to step out. A subsequent search of the car revealed an unregistered semi-automatic .45 caliber handgun under Bryant’s seat. Bryant’s DNA matched DNA found on the gun’s magazine.

Bryant was convicted of carrying a concealed firearm in a vehicle. His sentence included a two-year probation period that required Bryant to submit to searches of texts, emails and photographs on his mobile phone or other electronic device. Bryant appealed the imposition of the supervision term, arguing that the search condition was not reasonably related to future criminality.

The Court of Appeals agreed with Bryant, ruling that the prosecution did not show any reasonable connection between Bryant’s digital device use and the weapons crime conviction or any future criminality: “No cellular phone or electronic device was involved in the crime and there is no evidence that Bryant would use such devices to engage in future criminal activity.” Had there been some nexus between Bryant’s digital life and his crime—such as meeting a crime victim through social media or using his mobile phone for arranging drug deals or human trafficking—the court would almost certainly have reached a different result.

The court also expressed concern for Bryant’s Fourth Amendment rights: Even as a convicted criminal on probation, he doesn’t lose all constitutional protection. Citing the Supreme Court, the court noted that “a cellular phone search could potentially reveal ‘a digital record of nearly every aspect of [its owner's life]—from the mundane to the intimate’” (Riley v. California, 134 S.Ct. 2473, 2489 (2014)). People v. Bryant, 2017 WL 1210053 (Cal. App. 2nd Dist. 2017)


Officers Testifying about CSLI Must Qualify as Expert Witnesses

Edwards was convicted of a home invasion robbery. He followed a woman home from a grocery store, entering her garage and brandishing a gun. In addition to Edwards’ fingerprints on the side of the victim’s car, the victim’s identification of Edwards’ car (but not Edwards), surveillance video and other evidence, the prosecution elicited testimony from a police detective regarding cell site location information (CSLI) for Edwards’ phone.

On appeal, Edwards challenged the admission of the CSLI, asserting the trial court improperly admitted the CSLI evidence without determining that the evidence was based on reliable scientific principles, as required by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. (509 U.S. 579 (1993)). Daubert requires trial courts to determine that the scientific methods used to reach a particular conclusion are reliable and that the evidence is relevant.

The Connecticut Supreme Court held that the trial court improperly allowed the officer to testify about the CSLI evidence from Edwards’ phone without establishing the officer as an expert witness. This case signals officers to be prepared to explain the scientific method behind CSLI and to show that the evidence is scientifically sound before a court may properly admit it as evidence. It isn’t enough just to download the data; the officer must explain how the CSLI is collected.

Even though the Court found the cell phone evidence to be improperly admitted, there was adequate other evidence to sustain Edwards’ conviction. State v. Edwards, 2017 WL 1194851 (Conn. 2017)


Stopping by the Tracks on a Snowy Evening Might Not Have Been Burglarious

Squires and Angier were walking along railroad tracks on a snowy evening, the temperature plunging below freezing. When stopped by officers, Squires told the officers that the men were “just out for a stroll.” Angier unslung his backpack and placed it on the ground with a loud metal “clang.” The officers searched the backpack and discovered a blue crowbar, a large screwdriver bar, a pair of black gloves, and a small red flashlight. The backpack also contained a crude, hand-drawn map with one spot marked “going in” and five more spots marked with an “X.”

A search of the two men produced two-way radios tuned to the same frequency. Both men also had black gloves. The officers walked to Squires’ vehicle and searched it, finding another pair of black gloves and a small sledgehammer. Squires and Angier were convicted of “walking on a railroad track” and “possession of burglarious instruments.”

Angier died during the appellate process. His attorney asked for the charges against him to be vacated. Perhaps as he faced some other judgment bar he would offer a decent explanation for his burglarious tools and “X marks the spot” map. Or not. The court declined to dismiss the matter because Angier’s legal arguments were intertwined with Squires’, who had not passed on to the final judgment bar.

However, a narrowly divided Supreme Judicial Court held that the prosecution had not met its burden of proof to show burglarious intent. Walking by the tracks on a snowy evening with an “X marks the spot” map and a host of tools commonly—but not exclusively—used for break-ins was not sufficient to show nefarious burglarious intent.

Who knows? Perhaps Squires and Angier had recently read Robert Frost’s pastoral poem, “Stopping by Woods on a Snowy Evening,” and were doing their best to relive the moment (albeit along the railroad tracks). Commonwealth v. Squires, 71 N.E.3d 520 (Mass. 2017)


Second Prong of the Gant Decision Justifies Search of Hatchback

During a road rage incident, Stegall brandished a gun at the other driver. The driver called 911 and dispatch broadcast a description of Stegall’s sport utility vehicle (SUV) pulling a trailer with a jet ski. In short order, two officers spotted the SUV. They temporarily lost sight of it, but soon found it parked and unoccupied in a shopping center parking lot.

A witness told the officers she saw someone get out of the SUV, go to the back of the SUV and “put something up underneath something.” The witness told the officers the driver had gone to a nearby deli; proceeding with the officers to the deli, she identified Stegall as the driver.  

Stegall told the officers that he was the driver of the SUV and that he’d been involved in a road rage incident earlier that day, but denied brandishing a gun during the encounter. He told the officers he “probably” had a gun in his vehicle, but he did not consent to a search of his SUV.

The officers called the other driver to the shopping center. The driver identified Stegall as the person who brandished a gun at him. The officers arrested Stegall for terroristic threatening. They handcuffed him and placed him in the back of a patrol vehicle.

Intending to tow the SUV, the officers began an inventory. They found a handgun lodged between the back row of seats and the rear cargo floorboard. The handgun matched the description provided by the other driver. The officers also found an AR–15 rifle with an unusually short barrel. Concerned that the possession of a short-barreled rifle could be an independent crime, the officers stopped the inventory and sought a search warrant.

Stegall was charged with one count of possessing an unregistered short-barreled rifle. He asked the court to suppress the rifle as the product of a pretextual inventory. The trial court denied his request, finding that the search was reasonable as a search incident to a lawful arrest.

In Arizona v. Gant (556 U.S. 332 (2009)), the U.S. Supreme Court redefined and narrowed the traditional “search incident to arrest” exception to the warrant requirement of the Fourth Amendment. The Court held that officers may search a vehicle incident to an arrest only if the arrestee is unrestrained and “within reaching distance of the passenger compartment” at the time of the search or “it is reasonable to believe the vehicle contains evidence” of the crime for which the person is being arrested.

Because Stegall was handcuffed and secured in a patrol car at the time of the search, the officers needed a basis to believe the vehicle contained evidence linking Stegall to the road rage incident—otherwise the search would not trigger the search incident to arrest exception. The witness told officers that she saw Stegall put something in the rear hatch of the SUV. Stegall admitted that he was the driver involved in the road rage incident and said that he probably had a gun in the SUV. Plus, the other driver identified Stegall as the one who brandished a gun. Therefore, the court held that there was reason to believe that the SUV contained evidence of the crime of terroristic threatening.

Stegall also argued that the search was illegal because it exceeded the proper scope of a vehicle search incident to arrest. Stegall defined the rear of the SUV as the trunk area, not part of the passenger compartment. The court disagreed, holding that a hatchback area is part of the passenger compartment as long as one of the vehicle occupants could have reached into the hatchback area while inside the vehicle. Numerous other courts have reached the same conclusion; see United States v. Sain (421 Fed.Appx. 591 (6th Cir. 2011)), United States v. Allen (469 F.3d 11 (1st Cir. 2006)), United States v. Mayo (394 F.3d 1271 (9th Cir. 2005)), and United States v. Olguin–Rivera (168 F.3d 1203 (10th Cir. 1999)). It did not matter to the court that Stegall used the exterior access to put the gun in the hatchback. Nor did it matter that the officers opened the hatch at the rear during their search. United States v. Stegall, 2017 WL 957204 (8th Cir. 2017)


Invalid Impound Leads to Suppression of Gun

Two officers saw a car parked in front of a vacant lot and across the street from a church at 0300 hrs. The motor was running and the car lights were off. When the officers aimed their spotlight at the car, they saw two men in the front seat.

The officers approached the car. Crowley-Chester was in the passenger seat. The officers saw an unknown object in his hand (it turned out to be a black glove) and a closed Swiss Army knife in the center console. They ordered the men out of the car. An officer secured the knife. When the driver got out of the vehicle, he dropped a white rock to the ground. An officer recognized it as crack cocaine and he arrested the driver.

The driver asked the officers to let Crowley-Chester drive his car. However, Crowley-Chester did not have a license. The officers impounded the car. During the inventory search, the officers found a backpack containing a gun in the trunk. The backpack was labeled with Crowley-Chester’s name and it also contained a paystub issued in his name. Crowley-Chester was arrested for carrying a gun without a license.

Crowley-Chester asked the court to suppress the evidence found in the backpack, arguing that the car was legally parked on the street and did not need to be impounded. The prosecution countered that the car was in a high-crime neighborhood at 0300 hrs and was impounded for caretaking reasons. The prosecution also argued that the knife in the car justified impounding the car for public safety reasons. Crowley-Chester introduced evidence that there had been only a single call of a car prowl in the neighborhood in the three months preceding the arrest.

The court was not persuaded by the argument that a single car prowl—plus other unrelated calls for service—justified the impound for caretaking reasons. Nor was the court persuaded by the claimed public safety threat arguably presented by the seized Swiss Army pocketknife—after all, the officers had secured the pocketknife before impounding the vehicle.  

This wasn’t a case where the police chose the location of a traffic stop; the driver chose to lawfully park on the street. Coupling that fact with the slim evidence that the area was a high-crime neighborhood, the court found there was no police duty to impound the car to protect it from theft or vandalism. Thus, the court agreed with Crowley-Chester and ordered suppression of the backpack and its contents.

If an officer believes that the crime rate in a particular location justifies an impound for safekeeping, the officer must be able to point to some basis for the belief, whether it is crime statistics or the officer’s own experiences in that neighborhood. Commonwealth v. Crowley-Chester, 2017 WL 935793 (Mass. 2017)


Pen Register or StingRay? Confusion Leads to Suppression

Police investigating a string of robberies of food delivery drivers accused Smith of robbing and shooting a pizza delivery driver. Detectives found Smith through his cell phone: Using the phone number provided to order the pizza, officers obtained a court order to “go up on a pen register, specifically trap and trace devices on telephone number 773-981-5292.”

Officers used the signals from his cell phone to locate Smith as he walked along the sidewalk. They grabbed Smith, took him to the ground and searched him. They found his cell phone in his pants pocket. Smith asked the court to suppress the surveillance evidence derived from the phone, claiming that he was arrested without warrant or probable cause.

At the suppression hearing, a detective testified that they used a “pen register” to trap and trace the numbers dialed on Smith’s phone. However, the defense argued that the detective described technology that was more consistent with use of a StingRay device. Rather than merely trapping and tracing numbers, a StingRay is capable of precisely locating a targeted cell phone within a specified area. A StingRay simulates a cell site, forcing cell phones in range to send their signals to the cell-site simulator. Once the cell phones in the area send their signals to the StingRay, it captures information that can be used to identify the cell phone serial number and to locate the cell phone in real time.

The detective who located Smith’s cell phone signal couldn’t explain how a trap-and-trace device such as a pen register allowed him to pinpoint the phone’s precise location. The appellate court said that the detective’s testimony didn’t seem consistent with the operation of pen registers: “The record reveals that the officers’ testimony about the surveillance technology was sparse, vague, obfuscating and at times incoherent.”

Though many courts have discussed the Fourth Amendment implications of using a StingRay device (see “No Need to Tell Judge about StingRay Use” and “Warrant Required for StingRay Cell-Site Simulator Device”), that’s not the focus of this case. The court considered whether the prosecution established a sufficient foundation for any evidence of surveillance technology it used to track Smith’s phone. The court held that the detective’s testimony failed to show any scientific or technical knowledge about the device, whether it was a pen register as claimed or not. Moreover, there was no evidence that the device—whatever it was—worked properly when it was used to locate Smith’s phone.

The court was highly critical, noting that the witnesses “painfully—indeed fatally—failed to provide any critical details” about the technology used. More to the point, the court cited well-established evidentiary rules for establishing foundation to testify about mechanical or electronic surveillance devices. The takeaway: Officers must educate prosecutors about whatever technology is used and be prepared to adequately explain it to the court. People v. Smith, 2017 IL. App. (1st) 14-1814-U (Ill. App. 2017)


Eyewitness Identification Admissible Despite Violating Court’s Protocol

Thomas was a backseat passenger in a car driven by Humphrey-Frazer. Johnson was the front seat passenger. Thomas saw a person in a crowd standing in front of a house and he fired his gun toward the person. Someone returned fire and struck Humphrey-Frazer in the head, killing him.

Detectives interviewed Johnson the night of the fatal shooting. They showed her a computer screen that simultaneously displayed photos of 11 people. The detectives asked Johnson to look at the photos and tell them whether she recognized anyone. The procedure was not recorded. Johnson pointed to Thomas, who was later arrested.

Thomas asked the court to suppress the photo lineup evidence, arguing that the detectives did not follow the eyewitness identification procedures outlined in Commonwealth v. Silva-Santiago (906 N.E.2d 299 (Mass. 2009)). In Silva-Santiago, the court prescribed sequential, rather than simultaneous, presentation of lineup photos and outlined the following witness instruction for photo lineups:

·         The eyewitness will be asked to view a set of photographs

·         The alleged wrongdoer may or may not be in the photographs depicted in the array

·         It is just as important to clear a person from suspicion as to identify a person as the alleged wrongdoer

·         The persons in the photographs may not appear exactly as they did on the date of the incident because features such as weight and head and facial hair are subject to change

·         The investigation will continue regardless of whether an identification is made

·         The lineup the administrator should ask the eyewitness for a statement of confidence of any identification

This was the first case asking the court to invalidate an eyewitness identification as the sanction for failure to follow the procedure prescribed in Silva-Santiago. The court allowed Johnson’s identification of Thomas from the simultaneous photo array. Despite the failure to administer the cautions outlined by the court in its prior rulings, the court held that the procedure in this case was not unduly suggestive.

The court also cited research studies published since its 2004 decision in Silva-Santiago. Those studies, the court said, cast doubt on the view that sequential presentation of photographs is superior to simultaneous presentation: “What is not clear from the studies is whether, and in what circumstances, the use of the protocol in a simultaneous photographic lineup diminishes the risk of false positive identification to a rate comparable to or less than that in a sequential lineup. We cannot determine whether a sequential display is superior to a simultaneous display and that the use of the latter is unnecessarily suggestive until we learn, at a minimum, whether the rate of false positive identification with the use of the protocol is significantly higher in simultaneous displays than in sequential displays.”

The court’s opinion concurs with the New Jersey Supreme Court, which held that, “for now, there is insufficient authoritative evidence accepted by scientific experts for a court to make a finding in favor of either [simultaneous or sequential lineup] procedure” (State v. Henderson, 27 A.3d 872 (N.J. 2011)). More recently, the National Academy of Sciences observed that “the relative superiority of competing [simultaneous versus sequential] identification procedures ... is unresolved.”

For several years, Lexipol’s best practice policy has prescribed recording the eyewitness identification procedure and administering important instructions to the witness prior to beginning the procedure. Lexipol also recommends blind administration; the person presenting the lineup should not be involved in the investigation of the case or know the identity of the suspect.   Lexipol’s cautionary instructions include:

·         An instruction to the witness that it is as important to exclude innocent persons as it is to identify a perpetrator.

·         An instruction to the witness that the perpetrator may or may not be among those presented and that the witness is not obligated to make an identification.

·         If the identification process is a photographic or live lineup, an instruction to the witness that the perpetrator may not appear exactly as he/she did on the date of the incident.

·         An instruction to the witness that the investigation will continue regardless of whether an identification is made by the witness.

·         A signature line where the witness acknowledges that he/she understands the identification procedures and instructions.

·         A statement from the witness in the witness's own words describing how certain he/she is of the identification or non-identification. This statement should be taken at the time of the identification procedure.

Although the court upheld the admission of the eyewitness identification in this case, it reminded officers of its authority to govern admission of evidence and reiterated that courts assessing the weight of the eyewitness identification evidence will still scrutinize the steps taken by officers to prevent a suggestive identification procedure. Commonwealth v. Thomas, 2017 WL 581933 (Mass. 2017)


Frisk Allowed, Even When Suspect May Have Lawfully Carried Concealed Weapon

An anonymous caller told police that he had just “witnessed a black male in a bluish greenish Toyota Camry load a firearm [and] conceal it in his pocket” in the parking lot of a 7–Eleven store well known for drug trafficking. The tipster reported that the Camry was being driven by a white woman and had just started to go south on North Mildred Street. This area is known as the “highest crime area” in the city.

As an officer turned on to North Mildred Street, he saw a Toyota Camry being driven by a white woman with a black male passenger. He observed that neither occupant was wearing a seat belt and he stopped the car based on that violation. The backup officer opened the passenger door for Robinson, the passenger, to step out. He asked Robinson whether he had any weapons on him. Robinson didn’t answer verbally, but gave the officer “’a weird look’ or, more specifically, an ‘oh, crap’ look.”

The officer frisked Robinson and found a loaded gun in his pocket. Recognizing Robinson as a convicted felon, he arrested him. Robinson asked the court to suppress the evidence from the frisk.

Robinson argued that the state permitted persons to carry concealed weapons by permit. The rule of Terry v. Ohio (392 U.S. 1 (1968)) permits a detention and frisk for weapons when an officer has reasonable suspicion that a person is both armed and dangerous. Because the officers did not know whether he had a permit prior to the time that they stopped the car and frisked him, Robinson claimed, they could not have known whether his possession of the concealed weapon was lawful. Thus, he might have been involved in innocent behavior that would not lead to reasonable suspicion that he was both armed and a danger to others.

The court rejected Robinson’s argument: “The presumptive lawfulness of an individual's gun possession in a particular State does next to nothing to negate the reasonable concern an officer has for his own safety when forcing an encounter with an individual who is armed with a gun and whose propensities are unknown.” As long as the officer carefully applies the Terry doctrine, the fact that a state allows carrying a concealed weapon will not defeat an otherwise proper frisk. The officer must have:

·         Conducted a lawful stop, whether an investigative detention or traffic stop

·         A reasonable belief that the person is both armed and presents a danger to others

The court cited the Supreme Court’s discussion of dangers that officers face in Maryland v. Wilson (519 U.S. 408 (1997)) and more recent data from the 2014 Law Enforcement Officers Killed and Assaulted report. Nonetheless, the court reminded officers that the risk inherent in every traffic stop—proven by the numbers of officers killed and assaulted—won’t automatically justify a frisk. In this case, there was more than ample reasonable suspicion to both stop and to frisk Robinson.

The number of concealed carry permit holders increases yearly and more states are allowing people to carry a concealed weapon without a permit (subject to the usual restrictions of age, criminal history, etc.). Officers will increasingly face application of the Terry doctrine as it applies to frisks for weapons and persons who may be lawfully carrying a weapon. United States v. Robinson, 846 F.3d 694 (4th Cir. 2017) (en banc)


Recording Police Officers on Its Way to Being a Clearly Established Right

Turner was video recording a police station. Two officers drove up and approached him. The officers asked for Turner’s identification. Turner asked whether he was being detained. When an officer replied affirmatively, Turner asked what crime supported the detention. He refused to produce identification.

The officers suddenly grabbed Turner, took his camera and handcuffed him. They told Turner, “This is what happens when you don’t ID yourself.” Turner asked to see a supervisor. The officers persisted in asking for identification. They placed Turner in the back of a patrol car and “left him there to sweat for a while with the windows rolled up.”

A lieutenant arrived and spoke with Turner. When the lieutenant asked for Turner’s identification, Turner told him that he did not have to provide it because he had not been lawfully arrested. The lieutenant told Turner he was correct and ordered that Turner be released and his camera returned to him.

Turner sued, alleging that his First and Fourth Amendment rights had been violated. The trial court granted qualified immunity to the officers. Qualified immunity protects an officer from suit when the alleged wrong did not violate “clearly established law.” Before a court can say that the law is clearly established, “the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Recently, in White v. Pauly (137 S.Ct. 548 (2017)), the U.S. Supreme Court emphasized that “‘clearly established law’ should not be defined ‘at a high level of generality.’”

The appellate court upheld the grant of qualified immunity applied to the First Amendment claim. Every circuit court of appeals to consider the issue has held that a First Amendment right exists to record the public activities of officers. However, not every circuit has held that the right is clearly established. The Fifth Circuit had not yet ruled on the issue at the time that Turner was arrested.

Lexipol’s best practice policy recognizes the general right to record officers performing their duties with limited exceptions and advises officers to hold off on taking enforcement action until a supervisor can arrive at the scene. The best practice policy also suggests that officers give specific direction to the individual on what he or she can do to be compliant with public safety needs. For example, rather than seizing a camera or commanding the person to leave the area, likely creating a Fourth Amendment seizure issue, consider asking the person to move to the sidewalk across the street or some other location where the person can still see and record police activity, but not directly interfere with the officers’ duties.

The court held that officers are now on notice, at least in the Fifth Circuit, that “a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.” One judge dissented, distinguishing between the right to film officers and Turner’s actions—recording a police facility, not officers entering or leaving the facility.

Nonetheless, the two officers were not entitled to qualified immunity on Fourth Amendment claims of an illegal arrest. The court had no trouble ruling that Turner had been subjected to a de facto arrest without probable cause to believe that he had committed a crime. Thus, the lawsuit for an illegal arrest and detention goes back to the trial court and moves forward. Turner v. Driver, 2017 WL 650186 (5th Cir. 2017)


Dealing with the Police? Expect to be Recorded

Paxton, his brother and three other men agreed to rob a drug stash house. The person who enlisted their participation in the robbery was an undercover officer posing as a courier for a Mexican cartel. Moreover, the stash house was merely an empty warehouse chosen for the undercover operation.

Two of the men were arrested outside a restaurant. They were placed in the back of a police transport van. The van featured steel walls and Plexiglas windows separating the driver compartment from two rear confinement compartments. Officers drove the van to the fake stash house, where the other three men were arrested.

As the officers drove to the stash house, the first two men made several inculpatory statements. Once the other three men were in the van, they talked about the intended robbery. One of the men said that the van was “probably bugged.” It was. The men spoke in low voices, but continued to make admissions about the robbery plans.

When the prosecution tried to introduce the inculpatory statements into evidence, the defendants asked that their statements be suppressed. Paxton and his co-defendants argued that they had both a subjective and objective expectation of privacy in the “mobile jail.” In support of their claim, they noted the security features and argued that they spoke in low voices, objectively intending that their conversation not be overheard.

The law is clear that there is no expectation of privacy in the back of a patrol car. However, the trial court distinguished a patrol car from a transport van. Sitting in a patrol car, an arrestee should be on notice that any statements will be recorded. First, the patrol car is the officer’s mobile office and also a mobile jail. Second, the dashboard area of a patrol car “visibly bristles” with electronic equipment that ought to signal to anyone seated in the car that a recording device is among the bells and whistles and sirens and radios of the car.

Unlike the patrol car, according to the trial court, the transport van featured solid steel confinement dividers and double Plexiglas windows separating the front, where officers sit, and the confinement compartments. Further, though the recording devices were capable of real-time monitoring by the police van driver to facilitate security monitoring during the transport, that feature was not activated. The court ruled that these distinctions gave the defendants a reasonable expectation of privacy.

The court of appeals disagreed and reversed. It acknowledged the distinction between a patrol car and a transport van, but held that society does not recognize an expectation of privacy for an arrestee detained in the back of a marked official police vehicle. Notably, citing the proliferation of body-worn cameras on police and recording by citizens with smart phone cameras, the court also stated, “We are fast approaching a day when police interactions with civilians, including detainees, will be recorded from beginning to end.” Therefore, Paxton and his criminal cohort should have expected the van was—as they suspected—equipped with recording devices. United States v. Paxton, 2017 WL 655432 (7th Cir. 2017)


I Can See “Clearly” Now

Many lawsuits against police officers are stopped short of a trial by the qualified immunity doctrine, which protects officers from suit when the officers’ actions don’t violate “clearly established” rights. But just what does it mean to say that a right is “clearly established”?

Officers responded to a call of a probable drunk driver “swerving all crazy.” The complainants followed the suspect driver, Daniel Pauly, and flashed bright lights. Pauly pulled over and confronted the complainants. He then drove home, just a short distance away. The complainants called the police and provided Pauly’s registration number.

Three officers responded to the location of the confrontation. One remained there as the other two drove to Pauly’s house. The officers surreptitiously—sort of—approached the house where Pauly and his brother were moving around. The Pauly brothers heard the officers sneaking up and they called out, “Who are you, what do you want?” The officers laughed and said that they had the house surrounded. Then they identified themselves as the State Police.

The Pauly brothers armed themselves and shouted that they had guns. Daniel Pauly stepped into a doorway and fired two blasts from a shotgun. Samuel Pauly aimed a handgun at an officer. The officer fired and missed. The third officer, White, had just arrived from the scene of the initial report. Seeing Samuel aim at the other officer, he fatally shot Samuel Pauly.

Daniel Pauley, suing on his own behalf and on behalf of his brother’s estate, claimed that the brothers only heard someone shout, “We’re coming in.” Pauly asserted that the officers precipitated the force encounter by sneaking up to the house without announcing themselves or their purpose, leading the Pauly brothers to believe that intruders were approaching.

The Supreme Court decision of Tennessee v. Garner (471 U. S. 1 (1985)) requires that a warning be given, where feasible, prior to the use of deadly force. Officer White gave no warning. The trial court denied qualified immunity to Officer White. The 10th Circuit Court of Appeals agreed with the trial court. On rehearing by the appellate court sitting en banc, 10th Circuit Court Judge Hartz observed in a dissenting opinion that no “clearly established law suggests … that an officer … who faces an occupant pointing a firearm in his direction must refrain from firing his weapon but, rather, must identify himself and shout a warning while pinned down, kneeling behind a rock wall.”

The Supreme Court reversed the 10th Circuit’s decision to deny qualified immunity. The Court held that Officer White “did not violate clearly established law on the record described by the Court of Appeals panel.” The Court pointedly reiterated the longstanding principle that “clearly established law” should not be defined “at a high level of generality.” The 10th Circuit, the Court said, “misunderstood the ‘clearly established’ analysis: It failed to identify a case where an officer acting under similar circumstances” had been determined by a court to violate the Fourth Amendment. Without identifying such a case, the 10th Circuit failed to clearly establish the law that should have given notice to Officer White that his conduct was unlawful.

The Supreme Court’s plain message to lower courts is that the “clearly established law” component of the qualified immunity analysis cannot be applied at “too high a level of generality.” Practically speaking, expect attorneys defending officers to more frequently—and with greater success—pursue qualified immunity by arguing that prior cases are too dissimilar to give officers clear and precise guidance on what conduct is “clearly established” as wrongful under the Fourth Amendment. White v. Pauly, 2017 WL 69170 (U.S. 2017) (per curiam)


Is Man’s Best Friend Protected by the Fourth Amendment?

A confidential informant reported that Jones was selling drugs from a house owned by Nesbitt. Cheryl Brown and Mark Brown lived in the basement. Officers also found baggies with residue of marijuana and cocaine from a trash pull. The officers obtained a search warrant for the residence. Neither of the Browns were targets of the investigation.

Jones was well known to the police, with a history of violent gang involvement, significant drug history, prior foot and car chases, shootings and gun possession. Jones had “maxed out” his last prison sentence and had been released just a few weeks prior to the search warrant. The officers decided to ask a tactical team to enter and secure the house prior to the search.

As officers approached the house, they encountered Mark Brown, who had come home from work at lunch to let his two dogs out. He told an officer that no one else was home, but that his two dogs were in the house. He also said that he had a key to the house. That information was not relayed to the tactical team.

As the officers approached, they could see the dogs jumping and pawing at the front window. When the first officer breached the door to the house, he perceived that one of the dogs lunged at him. He shot the dog in the head. The dog ran down the stairs. Seeing that the dog was still moving and barking, the officer shot the dog twice more, killing it. The second dog had run to a back corner of the basement. Another officer saw the second dog “moving” out of the corner and he shot the second dog. A third officer shot the second dog again to “put her out of her misery.”

The Browns sued, claiming that the officers violated the Fourth Amendment by unreasonably seizing (by killing) their dogs. They also asserted that the city had failed to train its officers to deal with dogs in homes and that the city had inadequate policies that led to the alleged constitutional violation. The trial court granted summary judgment to the officers.

The court of appeals began its discussion by agreeing with every other circuit on the point that household pet dogs are personal property and the unreasonable seizure of them is unconstitutional (no disrespect to cat lovers, but I’ve never found a similar judicial decision applying to felines). Notwithstanding, the court opined that the trial court had properly credited the testimony of the officers who felt threatened by the dogs as they tried to execute the search warrant.

The appellate court held that the Browns failed to show a policy or practice of unconstitutional action relating to shooting dogs during enforcement actions. The court noted that failing to provide policy and training to deal with household dogs in such circumstances “may well become a viable claim as we move forward, but ... on the present record the one thing that’s clear is that there isn’t much of a policy [or] practice ... throughout the country, on how to deal with this beyond the general statements of how officers are supposed to respond to resistance.” Brown v. Battle Creek Police Department, 844 F.3d 556 (6th Cir. 2016)

Officers in Colorado, Illinois, Ohio, Tennessee and Texas are subject to state law requiring some training to prevent dog shootings. Enactment of these laws has usually followed a particularly ugly incident that brought grief to the dog owner and substantial ill will for the law enforcement agency. Agencies paid nearly $2 million to settle claims when officers shot and killed a Rottweiler and two Bullmastiffs during searches of the San Jose Hells Angels clubhouse and several gang members’ houses. (See San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962 (9th Cir. 2005)).

Many other states have voluntary training programs or partnerships with local animal protection groups to educate officers on dealing with unfriendly dogs. There are also training resources available from the Department of Justice COPS Office and on YouTube. Begin by learning how the Kansas City (MO) Police Department drastically changed community perceptions as explained by one of America’s top tactical commanders, Commander Chip Huth.