UNITED STATES v. ATCHLEY, USCA-6 No. 04-6521, U.S.App. LEXIS 1394, appeal from USDC-TNED, before Circuit Judges Martin, Norris, and Gibbons, opinion by Martin, filed 23 Jan 2007.
LONG STORY SHORT: After defendant's lawful arrest and upon seeing a handgun in plain view through the open door to defendant's motel room, combined with reasonable suspicion that defendant had been cooking meth in his room, officers' protective sweep was justified, and incriminating objects in plain view would not be suppressed. Binding in KY, MI, OH, TN.
FACTS: Officers of the Chattanooga Police Department responded to an extended stay motel after an anonymous citizen tipped them that three or four people with a particularly described Chevy pickup were manufacturing methamphetamine in room 139. The officers saw a truck matching the description parked 20 feet from room 139, and four people standing near it. Officer Cobb asked Defendant for ID, and he handed over his driver license, but denied that he rented the room and that they were only repairing the truck. Officer Engle took Defendant's license to the motel office and determined that Defendant had rented room 139, and related the same to Defendant, who became nervous enough that Officer Cobb decided to handcuff him for safety reasons, but without intention to arrest him.
When the first cuff went on, Defendant started fighting and tried to take an officer's sidearm, but the officers were able to gain control and cuff him, informing him that now he was under arrest for his violent behavior. Since one of Defendant's colleagues had also attacked them, the officers decided to conduct a protective sweep of room 139 to check for any others. Through the open door, officers could see a handgun and smell a chemical associated with meth manufacture. Upon entry, officers observed meth lab paraphernalia and a police radio scanner. Based on the items in plain view and their knowledge of the dangerous nature of meth labs, the officers decided that exigent circumstances required a further search of closed containers in the room for hazards, and in so doing, they found more evidence of meth making, plus another handgun. A detective arrived and, after Mirandizing him, asked Defendant for consent to search the room, which he gave in writing, and that search yielded yet more meth evidence, including chemicals mixed and ready for cooking. Defendant later testified that he only consented because he was in pain and was promised medical attention and water in return for consent; the detective denied any coercion.
PROCEDURE: The United States indicted Defendant for attempting to manufacture methamphetamine, possession of equipment and chemicals for making meth, possession of firearms in furtherance of a drug crime, and possession of firearms while a convicted felon. Defendant moved to suppress all evidence from the motel room on grounds that the initial handcuffing constituted an arrest without probable cause, that a handgun in plain view was not per se contraband and did not justify a protective sweep, that no exigent circumstances justified the immediate warrantless search of his motel room, and that his consent to search was coerced and invalid.
The U.S. District Court for the Eastern District of Tennessee ruled that the officers had reasonable suspicion of crime in progress from the initial tip and Defendant's untruthfulness; that the initial handcuffing was not an arrest but a safety measure; that the subsequent arrest was lawful; that the protective sweep was valid; and that even though the detective's testimony was more credible and no coercion existed, that exigent circumstances from the danger of meth labs justified the post-sweep search anyway. MOTION TO SUPPRESS DENIED. Defendant went to jury trial and was convicted as charged, receiving 320 months. He appealed to the U.S. Court of Appeals for the Sixth Circuit.
DECISION: The anonymous tip that started the investigation did not amount to reasonable suspicion for Terry purposes all by itself, even though officers were able to confirm it as far as it went when they got to the scene. But once there, the officers were within bounds to strike up a conversation and ask for ID, since they did not convey any impression that the subjects had to do as told. That led to Defendant's lying and acting nervous, which in turn justified handcuffing him for safety reasons without exceeding Terry limits, and when he started fighting, formal arrest was justified. Since the motel room was 20 feet away and not within Defendant's immediate control, it was not subject to search incident to arrest. However, given Defendant's and his colleagues' violent behavior, officers had enough articulable officer safety concerns to conduct a protective sweep of the room for other dangerous persons.
Once in the room, officers could seize the handgun temporarily as a danger to their safety, and since a plain view of the meth-related items revealed their incriminating character, no warrant was necessary to seize them. Though the search of closed containers exceeded the nature of a protective sweep because they were too small to contain a person, exigency did allow this search, because by then it was clear that meth lab chemicals were present, and their flammable and toxic nature, coupled with their location in a motel with other people, constituted an immediate danger to public safety. The Sixth Circuit cautioned not to read into this holding a per se rule that meth lab chemicals equal automatic exigent circumstances; a meth lab in an isolated building out in the country might be another story. Given the exigency, there was no need to address the issue of consent. DENIAL OF SUPPRESSION AFFIRMED; convictions and sentences AFFIRMED in all respects.
EDITORIAL: These guys went charging into a meth lab without protective gear? Holy frijoles! Meth labs are the very definitions of contaminated hazmat sites. Remember the "rule of thumb" for hazmat--once you're far enough away from the scene that your thumb blocks your view of it, you can stop running. The instant I think there's meth around, I make like a frightened shepherd and get the flock outta there! But this time, the intrepid officers made out just fine, and they might well have saved lives and property. Good on ya, mates.
The opinion notes that before the feds could indict him, the bad guy here made bond on his state charges, then promptly jumped bail and murdered a bondsman in Alabama, eventually getting rearrested in Missouri. You just never know what some people are going to do when pressed.
By the way, I agree with the ruling, and will make sure to get a warrant before sending the hazmat guys in.
Saturday, January 27, 2007
"Shall Arrest" Is Still Discretionary; Officers Not Constitutionally Liable For Ex's Murder
HUDSON v. HUDSON, USCA-6 No. 05-6575, 2007 U.S.App. LEXIS 1705, appeal from USDC-TNWD, before Chief Judge Boggs, Circuit Judge Cook, and USDJ-OHSD Rose sitting by designation, opinion by Cook, filed 26 Jan 2007.
LONG STORY SHORT: Even though the applicable statute required arrest of domestic protective order violators, and even though such an arrest would have prevented the subject from murdering his ex and her friends, officers were not liable under the Constitution to the murder victim's surviving child. Binding in KY, MI, OH, TN.
FACTS: Jennifer Braddock's boyfriend, James Hudson, became abusive and Ms. Braddock obtained a protective order. While it was in effect, Mr. Hudson repeatedly violated it, but for two years, the Memphis Police Department did not arrest him for these violations. One day, Mr. Hudson's sister Susan drove him to Ms. Braddock's home, where he broke in, murdered her and two of her friends, then killed himself.
PROCEDURE: Justin Hudson, minor son of Mr. Hudson and Ms. Braddock, sued Susan Hudson, the Memphis Police Department, and certain MPD officers for violating his Fourteenth Amendment rights to due process, and for relief under various Tennessee state causes of action. Two officers moved to dismiss the complaint on grounds of qualified immunity, arguing that they had discretion to arrest Mr. Hudson or not, and discretionary functions cannot trigger constitutional liability. The U.S. District Court for the Western District of Tennessee ruled that since the applicable Tennessee statute provided that officers "shall arrest," with or without a warrant, anyone whom an "officer has reasonable cause to believe has violated or is in violation of an order for protection," a previous Tennessee Supreme Court decision had put the officers on notice that they had to arrest such subjects or be liable for not doing so. QUALIFIED IMMUNITY DENIED. The two officers immediately appealed to the U.S. Court of Appeals for the Sixth Circuit.
DECISION: First, qualified immunity is available only to those government officials performing discretionary functions. Though the "shall arrest" wording of the state statute appeared to take discretion away from officers and thereby make the arrest of protection order violators a mere ministerial act, the Sixth Circuit ruled that no state statute could overrule the Fourth Amendment's requirement of probable cause to arrest. In light of this principle, the trial court's cited Tennessee Supreme Court case, which really addressed government liability under Tennessee tort law, could not abrogate the Fourth Amendment. Also, the "shall arrest" statute went on to require "reasonable cause" for arrest, necessarily delegating some discretion to officers.
Once the discretionary nature of the complained-of actions is clear, qualified immunity protects officers if they either did not violate any constitutional right or if the right in question was not clearly established at the time of the complained-of actions. Unless either the state created the danger or had some special relationship with the victim, no act of private violence amounts to a state denial of Fourteenth Amendment procedural or substantive due process rights. Here, the state did not create the danger; the state only failed to do something right instead of affirmatively doing something wrong. Neither does a protective order create a special relationship with the state, nor does it establish for Fourteenth Amendment purposes a property interest in being protected, because arresting a violator is only incidental to the police function of arresting offenders in general.
Even taking the complaint as true and liberally construing it in Plaintiff's favor, and despite the tragic nature of the facts, the appellant officers simply did not violate any constitutional right and could not be sued. DENIAL OF QUALIFIED IMMUNITY REVERSED.
EDITORIAL: The real world of enforcing the laws against domestic violence is not as simple and easy as the victims' advocates would have you think. Remember, in a motion to dismiss like this one, we have to work with the facts as the plaintiff wants you to think they are, and the defense has not had its turn yet. It could be that the plaintiff is exactly right--after all, I'm always exactly right in everything I write into a lawsuit!--or it could be that the Memphis PD has a very mean town to deal with and cannot give every case the attention it ought to have done in hindsight. Personally, one of my favorite aspects of LE work is the satisfaction of putting bullies and batterers in their place. However, MOST batterers don't kill their victims and it's hard to predict which ones WILL do so. If batterers were that predictable, we could concentrate just on the worst ones. What's more, sometimes one officer on a domestic call will find the complaining witness credible, but another officer will find the alleged batterer credible ("I didn't do NOTHIN, I cain't be-LEEVE all them lies my wife and younguns tell"), and the officer who wants to arrest a batterer might get outvoted. Don't ask me how I know.
Still and all, I sure hope the great city of Memphis notices that it's still probably going to be liable under state law, and writes settlement checks totaling twice the size of Graceland to that poor kid and the estates of his mother's friends. And I wonder what happened to the murderer's sister, because if the complaint is true, she is as guilty as he. Then again, if she knew he was going to kill himself along with whoever else was handy, she wouldn't have driven him over there.
LONG STORY SHORT: Even though the applicable statute required arrest of domestic protective order violators, and even though such an arrest would have prevented the subject from murdering his ex and her friends, officers were not liable under the Constitution to the murder victim's surviving child. Binding in KY, MI, OH, TN.
FACTS: Jennifer Braddock's boyfriend, James Hudson, became abusive and Ms. Braddock obtained a protective order. While it was in effect, Mr. Hudson repeatedly violated it, but for two years, the Memphis Police Department did not arrest him for these violations. One day, Mr. Hudson's sister Susan drove him to Ms. Braddock's home, where he broke in, murdered her and two of her friends, then killed himself.
PROCEDURE: Justin Hudson, minor son of Mr. Hudson and Ms. Braddock, sued Susan Hudson, the Memphis Police Department, and certain MPD officers for violating his Fourteenth Amendment rights to due process, and for relief under various Tennessee state causes of action. Two officers moved to dismiss the complaint on grounds of qualified immunity, arguing that they had discretion to arrest Mr. Hudson or not, and discretionary functions cannot trigger constitutional liability. The U.S. District Court for the Western District of Tennessee ruled that since the applicable Tennessee statute provided that officers "shall arrest," with or without a warrant, anyone whom an "officer has reasonable cause to believe has violated or is in violation of an order for protection," a previous Tennessee Supreme Court decision had put the officers on notice that they had to arrest such subjects or be liable for not doing so. QUALIFIED IMMUNITY DENIED. The two officers immediately appealed to the U.S. Court of Appeals for the Sixth Circuit.
DECISION: First, qualified immunity is available only to those government officials performing discretionary functions. Though the "shall arrest" wording of the state statute appeared to take discretion away from officers and thereby make the arrest of protection order violators a mere ministerial act, the Sixth Circuit ruled that no state statute could overrule the Fourth Amendment's requirement of probable cause to arrest. In light of this principle, the trial court's cited Tennessee Supreme Court case, which really addressed government liability under Tennessee tort law, could not abrogate the Fourth Amendment. Also, the "shall arrest" statute went on to require "reasonable cause" for arrest, necessarily delegating some discretion to officers.
Once the discretionary nature of the complained-of actions is clear, qualified immunity protects officers if they either did not violate any constitutional right or if the right in question was not clearly established at the time of the complained-of actions. Unless either the state created the danger or had some special relationship with the victim, no act of private violence amounts to a state denial of Fourteenth Amendment procedural or substantive due process rights. Here, the state did not create the danger; the state only failed to do something right instead of affirmatively doing something wrong. Neither does a protective order create a special relationship with the state, nor does it establish for Fourteenth Amendment purposes a property interest in being protected, because arresting a violator is only incidental to the police function of arresting offenders in general.
Even taking the complaint as true and liberally construing it in Plaintiff's favor, and despite the tragic nature of the facts, the appellant officers simply did not violate any constitutional right and could not be sued. DENIAL OF QUALIFIED IMMUNITY REVERSED.
EDITORIAL: The real world of enforcing the laws against domestic violence is not as simple and easy as the victims' advocates would have you think. Remember, in a motion to dismiss like this one, we have to work with the facts as the plaintiff wants you to think they are, and the defense has not had its turn yet. It could be that the plaintiff is exactly right--after all, I'm always exactly right in everything I write into a lawsuit!--or it could be that the Memphis PD has a very mean town to deal with and cannot give every case the attention it ought to have done in hindsight. Personally, one of my favorite aspects of LE work is the satisfaction of putting bullies and batterers in their place. However, MOST batterers don't kill their victims and it's hard to predict which ones WILL do so. If batterers were that predictable, we could concentrate just on the worst ones. What's more, sometimes one officer on a domestic call will find the complaining witness credible, but another officer will find the alleged batterer credible ("I didn't do NOTHIN, I cain't be-LEEVE all them lies my wife and younguns tell"), and the officer who wants to arrest a batterer might get outvoted. Don't ask me how I know.
Still and all, I sure hope the great city of Memphis notices that it's still probably going to be liable under state law, and writes settlement checks totaling twice the size of Graceland to that poor kid and the estates of his mother's friends. And I wonder what happened to the murderer's sister, because if the complaint is true, she is as guilty as he. Then again, if she knew he was going to kill himself along with whoever else was handy, she wouldn't have driven him over there.
Tuesday, January 23, 2007
Not-So-Clean Getaway: Next Time, Make Sure YOUR Tow Truck Gets There First
UNITED STATES v. LE, USCA-8 No. 06-2224, 2007 U.S.App. LEXIS 1329, appeal from USDC-NDD, before Chief Circuit Judge Loken, Circuit Judge Melloy, and USDJ-MND Schiltz sitting by designation, opinion by Melloy, filed 22 Jan 2007.
LONG STORY SHORT: Opening closed containers per department policy during an inventory search of a vehicle found wrecked near a highway is not an unreasonable search. Binding in AR, IA, MN, MO, ND, NE, SD.
FACTS: At 0850 on 11 February 2004, North Dakota Highway Patrol Trooper Vance found a SUV lying on its side in a ditch about 40 feet south of I-94. No one was in or near it, and no one had reported an accident to any nearby LE agency. A blizzard had passed through the area the day before and road conditions were still poor, and the SUV was visible from the interstate, meaning that motorists would probably stop and try to help, endangering themselves and others. Since NDHP policy was to impound any abandoned vehicle that constituted a hazard, Trooper Vance called a towing company. The tow operator was able to right the SUV, and also, Trooper Vance learned that a woman had called the same tow company earlier that morning regarding the SUV.
NDHP policy required a detailed inspection and inventory of all impounded vehicles. Trooper Vance looked in the glove box and found no evidence of ownership other than a card with a rental company's phone number, but he also saw a suitcase and some large duffel bags in the back seat area. Following his standard inventory search practice that he had learned in training, Trooper Vance removed one duffel bag and opened it, finding a number of heat-sealed packages of marijuana. He searched the other duffel bags and documented 216 pounds of marijuana in them. Later, Defendant and another woman were identified as the occupants of the SUV; they had been transporting the marijuana from Seattle to Minneapolis when they wrecked during the 10 February blizzard.
PROCEDURE: The United States charged Defendant by information with possession with intent to distribute marijuana, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D). Defendant moved to suppress the marijuana, arguing that Trooper Vance's seizure and search of the SUV were unreasonable, specifically that the SUV did not amount to a traffic hazard and that NDHP policy granted troopers too much discretion to impound and inventory-search vehicles. The U.S. District Court for the District of North Dakota ruled that Trooper Vance's impoundment and search were not unreasonable under the circumstances, and in the alternative, that Defendant and her companion had abandoned the SUV, depriving them of standing to contest the search. SUPPRESSION DENIED. On condition that she could still appeal the denial of suppression, Defendant pleaded guilty as charged and received a 30-month sentence. Defendant appealed to the U.S. Court of Appeals to the Eighth Circuit on the same grounds as before.
DECISION: Impounding a vehicle does not offend the Constitution so long as the decision to do so is per a standard policy, even one that gives officers some discretion, and also, the purpose for impounding must be something other than suspicion of criminal activity. Here, Trooper Vance reasonably estimated that other motorists would stop and try to help, compounding the bad driving conditions in that area. There was no evidence that Trooper Vance had any motive other than safety when he decided to tow and impound Defendant's SUV, so its seizure was not unreasonable under the Fourth Amendment.
Once a vehicle is impounded, an inventory search is generally reasonable and falls within an exception to the general warrant requirement. Unless the totality of the circumstances render an inventory search unreasonable, whatever officers find during a detailed inspection and inventory per department policy will not be suppressed. Here, NDHP policy and Trooper Vance's standard procedure of opening closed containers were not unreasonable. Since the inventory search did not violate the Fourth Amendment, the Eighth Circuit did not consider the trial court's alternative ground of abandonment. DENIAL OF SUPPRESSION AFFIRMED.
EDITORIAL: Remember when they used to advertise SUVs as much safer than regular cars because they were based on trucks and had 4WD? Now we know that when the snow begins to blow, the first thing you see is one stuck or wrecked SUV after another. Dope-slingers ought to have figured this out by now, but I guess 216 pounds of weed wouldn't quite fit in a Civic trunk. Good on Trooper Vance for getting this thing out of the way. I'd say the hazard isn't people stopping to help; it's the 12,000 looky-loos on the interstate who have never ever seen a turned-over SUV before and just have to slow everybody else down.
LONG STORY SHORT: Opening closed containers per department policy during an inventory search of a vehicle found wrecked near a highway is not an unreasonable search. Binding in AR, IA, MN, MO, ND, NE, SD.
FACTS: At 0850 on 11 February 2004, North Dakota Highway Patrol Trooper Vance found a SUV lying on its side in a ditch about 40 feet south of I-94. No one was in or near it, and no one had reported an accident to any nearby LE agency. A blizzard had passed through the area the day before and road conditions were still poor, and the SUV was visible from the interstate, meaning that motorists would probably stop and try to help, endangering themselves and others. Since NDHP policy was to impound any abandoned vehicle that constituted a hazard, Trooper Vance called a towing company. The tow operator was able to right the SUV, and also, Trooper Vance learned that a woman had called the same tow company earlier that morning regarding the SUV.
NDHP policy required a detailed inspection and inventory of all impounded vehicles. Trooper Vance looked in the glove box and found no evidence of ownership other than a card with a rental company's phone number, but he also saw a suitcase and some large duffel bags in the back seat area. Following his standard inventory search practice that he had learned in training, Trooper Vance removed one duffel bag and opened it, finding a number of heat-sealed packages of marijuana. He searched the other duffel bags and documented 216 pounds of marijuana in them. Later, Defendant and another woman were identified as the occupants of the SUV; they had been transporting the marijuana from Seattle to Minneapolis when they wrecked during the 10 February blizzard.
PROCEDURE: The United States charged Defendant by information with possession with intent to distribute marijuana, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D). Defendant moved to suppress the marijuana, arguing that Trooper Vance's seizure and search of the SUV were unreasonable, specifically that the SUV did not amount to a traffic hazard and that NDHP policy granted troopers too much discretion to impound and inventory-search vehicles. The U.S. District Court for the District of North Dakota ruled that Trooper Vance's impoundment and search were not unreasonable under the circumstances, and in the alternative, that Defendant and her companion had abandoned the SUV, depriving them of standing to contest the search. SUPPRESSION DENIED. On condition that she could still appeal the denial of suppression, Defendant pleaded guilty as charged and received a 30-month sentence. Defendant appealed to the U.S. Court of Appeals to the Eighth Circuit on the same grounds as before.
DECISION: Impounding a vehicle does not offend the Constitution so long as the decision to do so is per a standard policy, even one that gives officers some discretion, and also, the purpose for impounding must be something other than suspicion of criminal activity. Here, Trooper Vance reasonably estimated that other motorists would stop and try to help, compounding the bad driving conditions in that area. There was no evidence that Trooper Vance had any motive other than safety when he decided to tow and impound Defendant's SUV, so its seizure was not unreasonable under the Fourth Amendment.
Once a vehicle is impounded, an inventory search is generally reasonable and falls within an exception to the general warrant requirement. Unless the totality of the circumstances render an inventory search unreasonable, whatever officers find during a detailed inspection and inventory per department policy will not be suppressed. Here, NDHP policy and Trooper Vance's standard procedure of opening closed containers were not unreasonable. Since the inventory search did not violate the Fourth Amendment, the Eighth Circuit did not consider the trial court's alternative ground of abandonment. DENIAL OF SUPPRESSION AFFIRMED.
EDITORIAL: Remember when they used to advertise SUVs as much safer than regular cars because they were based on trucks and had 4WD? Now we know that when the snow begins to blow, the first thing you see is one stuck or wrecked SUV after another. Dope-slingers ought to have figured this out by now, but I guess 216 pounds of weed wouldn't quite fit in a Civic trunk. Good on Trooper Vance for getting this thing out of the way. I'd say the hazard isn't people stopping to help; it's the 12,000 looky-loos on the interstate who have never ever seen a turned-over SUV before and just have to slow everybody else down.
Monday, January 22, 2007
Blasts from the Past: The Fourth Amendment in the Fourth Circuit, 2006
Hey all, it's time for an ambitious project. In the next few weeks, maybe even days, I'll be summarizing every published 2006 case of the U.S. Court of Appeals for the Fourth Circuit that discusses a Fourth Amendment issue. Just what you were waiting for, I'm sure. So don't be alarmed, or think you're in a time warp, when you see cases appear out of sequence.
Also, I'll be working up a hardcopy version of "4th Am/4th Cir" to send, funds permitting, to every police chief and sheriff in North Carolina. This edition might contain some trade secrets that I don't want to post on a blog that is otherwise meant to suck in as many readers as possible.
Also, I'll be working up a hardcopy version of "4th Am/4th Cir" to send, funds permitting, to every police chief and sheriff in North Carolina. This edition might contain some trade secrets that I don't want to post on a blog that is otherwise meant to suck in as many readers as possible.
Detectives Who Can't Tell Black From White Need To Get Better Appellate Lawyers
MILLER v. PRINCE GEORGE'S COUNTY, USCA-4 No. 05-2250, http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/052250.P.pdf,
on appeal from USDC-MDD, before Michael, Motz, and King, Circuit Judges, opinion by Motz, filed 22 Jan 2007.
LONG STORY SHORT: Plaintiff presented substantial evidence that the detective who obtained the warrant for Plaintiff's arrest knew that the suspect was white, but disregarded or misrepresented records showing that Plaintiff was black, which a reasonable officer would have known to be a violation of constitutional rights. Binding in MD, NC, SC, VA, WV.
FACTS: On 29 May 2004, Virginia State Trooper Ward observed that Plaintiff's vehicle did not have a front license plate. During the traffic stop, Trooper Ward discovered a warrant from Plaintiff's home state of Maryland for the arrest of someone who matched Plaintiff's name, birthdate, and description, except that Plaintiff was black and the warrant said he was white. Trooper Ward arrested Plaintiff, who spent 19 days incarcerated in Virginia before the charges of theft and second-degree burglary against him were dismissed.
Plaintiff discovered that the warrant resulted from the investigation of Detective Dougans of the Prince George's County PD into the 23 July 2002 theft of a lawnmower from a residence. The victim and a witness had seen a green Jeep Cherokee with light wood paneling circling the neighborhood 15 times just before the lawnmower disappeared, and the victim knew that Daniel Miller, a reputed petty criminal, owned such a vehicle and often stayed at his sister's place. Indeed, police recovered the lawnmower from that residence the same day of the theft. Detective Dougans learned from witnesses that Daniel Miller was a 25-year-old skinny white male.
Detective Dougans searched the local criminal database for Millers and found a record for Plaintiff, which incorrectly stated Plaintiff was white but correctly noted his age of 35 and gave Plaintiff's valid driver license number. Detective Dougans then looked up Plaintiff's DL in the Maryland Motor Vehicle Administration records, which correctly described him as black and also correctly noted that Plaintiff had owned a Jeep, but had turned in the tag three years ago (MVA SOP was to securely store turned-in tags until their destruction), and the suspect Jeep Cherokee could not possibly have displayed that tag. Detective Dougans then searched the Maryland state criminal database for a white man who otherwise matched Plaintiff, and found no such record. That was the end of Detective Dougans' investigation. Later, he testified that he had gotten the information describing Plaintiff by searching for Plaintiff's turned-in tag in MVA records, but Sergeant Lee of MVA's records section testified that MVA records showed no evidence of any such search. Also, Detective Dougans claimed to have written down the turned-in tag number on a slip of paper, but no such note was in the case file.
Five months later, Detective Dougans filed an application for charges against Plaintiff. In support, he swore out an affidavit stating that a witness had seen Plaintiff's former license tag on the suspect Jeep, that the suspect Jeep belonged to Plaintiff, and giving Plaintiff's race as white but otherwise correctly describing him. The magistrate issued the warrant that same day.
PROCEDURE: Plaintiff sued Prince George's County and Detective Dougans in U.S. District Court for the District of Maryland for allegedly violating his Fourth Amendment rights per 42 U.S.C. § 1983 and for false arrest and malicious prosecution under Maryland law, specifically that the warrant affidavit contained deliberate or reckless material falsehoods, and consequently was so misleading that it could not have supported probable cause. Defendants moved for summary judgment, arguing that their actions did not violate Plaintiff's constitutional rights, and even if they did, Defendants were entitled to qualified immunity. Defendants further argued that false arrest was inapplicable because no Defendant actually arrested Plaintiff, and the warrant affidavit made probable cause, foreclosing malicious prosecution. The trial court agreed. SUMMARY JUDGMENT GRANTED in all respects; case dismissed.
Plaintiff appealed to the U.S. Court of Appeals for the Fourth Circuit, arguing that the facts as taken most favorably to him could not support summary judgment. In his appellate brief, Detective Dougans conceded that certain of his statements or omissions were material, but claimed that he really had searched MVA records for the turned-in tag; argued the he had subjectively meant to obtain a warrant to arrest a white man; disputed Plaintiff's version of other facts; and disparaged Plaintiff's case as without evidentiary support and entirely based on mischaracterizations and conjecture.
DECISION: To obtain qualified immunity, an officer must show that either his conduct did not violate any constitutional right, or that the violated right had not been clearly established at the time of his actions. As to the first part, Plaintiff had to show that Detective Dougans not only put material falsehoods in the warrant affidavit (and/or that he omitted facts that would have negated probable cause), and that such falsehoods were deliberate or in reckless disregard for the truth, but also that if the false information were taken out (and/or omitted facts put back in), the rest of the affidavit would not establish probable cause.
The Fourth Circuit examined the record and found evidence that Detective Dougans intentionally or recklessly misrepresented that a witness had given him the turned-in tag number, misrepresented that he had searched for Plaintiff's turned-in tag, and omitted that his state criminal database search for a white man otherwise matching Plaintiff's description turned up nothing. After correcting for these errors, the affidavit would have at most applied for the arrest of a white man of the Plaintiff's first and last name, and therefore did not make probable cause for Plaintiff's arrest. The fact that some other officer served the warrant did not save Detective Dougans from Fourth Amendment liability, because he was the one who applied for its issuance when he knew about the lack of probable cause. (However, it did save him and the County from Maryland state false arrest claims; only the actual arresting officer can be liable for that.) Lack of probable cause is also evidence of malice supporting the Maryland tort of false arrest.
Since a reasonable jury could find that Detective Dougans had violated Plaintiff's Fourth Amendment rights, the Fourth Circuit considered whether those rights were clearly established when Detective Dougans swore out the misleading warrant, and ruled that for at least ten years, binding precedent had forbidden officers to mislead magistrates into issuing warrants that the offending officers knew were without probable cause. Under no reasonable reading of the record could Detective Dougans be entitled to qualified immunity.
The Fourth Circuit heavily criticized Detective Dougans' derogatory and erroneous statements about Plaintiff's case, noting the impropriety of trying to use the appellate process to dispute heretofore undisputed facts. Many of Detective Dougans' cited cases actually undercut his position instead of supporting it. Plaintiff had made a substantial preliminary showing of serious constitutional violations, and if anyone's case relied chiefly on supposition and error, it was Detective Dougans'. SUMMARY JUDGMENT AFFIRMED as to the Maryland false arrest claim; REVERSED in all other respects.
EDITORIAL: Bravo Zulu, Fourth Circuit! Cases like these are the very reason why we have appellate courts--to correct obvious screwups at the trial level. Two thumbs down, WAY down, for the detective and his lawyer. Together, they are a textbook illustration of the difference between a dumbass and an assclown. A mere dumbass waits five months between investigation and warrant, by which time all details have been long forgotten and the file is all there is to go on. Shoulda taped that little note paper in there!
An assclown decides (assumes? hopes?) that appellate judges and their law clerks will believe whatever hooey they serve up in the brief, and not take a few minutes to read transcripts and affidavits, or pull and read cited cases. Said assclown is in for an unpleasant surprise, because judges and clerks DO check up on appellate lawyers--and they DO keep private lists of bullcrap artists who try to sleaze their way to victory. Assclowns abound in the insurance defense community, but government lawyers ought to know far better.
Argue the facts and law as they really are, take your lumps as they come, and move on--works for me, and might well have worked here. Instead, it looks like His Highness Prince George of County will be whipping out the royal checkbook. And all because of a used lawnmower that wasn't gone for even a whole day. What a way to run a railroad.
on appeal from USDC-MDD, before Michael, Motz, and King, Circuit Judges, opinion by Motz, filed 22 Jan 2007.
LONG STORY SHORT: Plaintiff presented substantial evidence that the detective who obtained the warrant for Plaintiff's arrest knew that the suspect was white, but disregarded or misrepresented records showing that Plaintiff was black, which a reasonable officer would have known to be a violation of constitutional rights. Binding in MD, NC, SC, VA, WV.
FACTS: On 29 May 2004, Virginia State Trooper Ward observed that Plaintiff's vehicle did not have a front license plate. During the traffic stop, Trooper Ward discovered a warrant from Plaintiff's home state of Maryland for the arrest of someone who matched Plaintiff's name, birthdate, and description, except that Plaintiff was black and the warrant said he was white. Trooper Ward arrested Plaintiff, who spent 19 days incarcerated in Virginia before the charges of theft and second-degree burglary against him were dismissed.
Plaintiff discovered that the warrant resulted from the investigation of Detective Dougans of the Prince George's County PD into the 23 July 2002 theft of a lawnmower from a residence. The victim and a witness had seen a green Jeep Cherokee with light wood paneling circling the neighborhood 15 times just before the lawnmower disappeared, and the victim knew that Daniel Miller, a reputed petty criminal, owned such a vehicle and often stayed at his sister's place. Indeed, police recovered the lawnmower from that residence the same day of the theft. Detective Dougans learned from witnesses that Daniel Miller was a 25-year-old skinny white male.
Detective Dougans searched the local criminal database for Millers and found a record for Plaintiff, which incorrectly stated Plaintiff was white but correctly noted his age of 35 and gave Plaintiff's valid driver license number. Detective Dougans then looked up Plaintiff's DL in the Maryland Motor Vehicle Administration records, which correctly described him as black and also correctly noted that Plaintiff had owned a Jeep, but had turned in the tag three years ago (MVA SOP was to securely store turned-in tags until their destruction), and the suspect Jeep Cherokee could not possibly have displayed that tag. Detective Dougans then searched the Maryland state criminal database for a white man who otherwise matched Plaintiff, and found no such record. That was the end of Detective Dougans' investigation. Later, he testified that he had gotten the information describing Plaintiff by searching for Plaintiff's turned-in tag in MVA records, but Sergeant Lee of MVA's records section testified that MVA records showed no evidence of any such search. Also, Detective Dougans claimed to have written down the turned-in tag number on a slip of paper, but no such note was in the case file.
Five months later, Detective Dougans filed an application for charges against Plaintiff. In support, he swore out an affidavit stating that a witness had seen Plaintiff's former license tag on the suspect Jeep, that the suspect Jeep belonged to Plaintiff, and giving Plaintiff's race as white but otherwise correctly describing him. The magistrate issued the warrant that same day.
PROCEDURE: Plaintiff sued Prince George's County and Detective Dougans in U.S. District Court for the District of Maryland for allegedly violating his Fourth Amendment rights per 42 U.S.C. § 1983 and for false arrest and malicious prosecution under Maryland law, specifically that the warrant affidavit contained deliberate or reckless material falsehoods, and consequently was so misleading that it could not have supported probable cause. Defendants moved for summary judgment, arguing that their actions did not violate Plaintiff's constitutional rights, and even if they did, Defendants were entitled to qualified immunity. Defendants further argued that false arrest was inapplicable because no Defendant actually arrested Plaintiff, and the warrant affidavit made probable cause, foreclosing malicious prosecution. The trial court agreed. SUMMARY JUDGMENT GRANTED in all respects; case dismissed.
Plaintiff appealed to the U.S. Court of Appeals for the Fourth Circuit, arguing that the facts as taken most favorably to him could not support summary judgment. In his appellate brief, Detective Dougans conceded that certain of his statements or omissions were material, but claimed that he really had searched MVA records for the turned-in tag; argued the he had subjectively meant to obtain a warrant to arrest a white man; disputed Plaintiff's version of other facts; and disparaged Plaintiff's case as without evidentiary support and entirely based on mischaracterizations and conjecture.
DECISION: To obtain qualified immunity, an officer must show that either his conduct did not violate any constitutional right, or that the violated right had not been clearly established at the time of his actions. As to the first part, Plaintiff had to show that Detective Dougans not only put material falsehoods in the warrant affidavit (and/or that he omitted facts that would have negated probable cause), and that such falsehoods were deliberate or in reckless disregard for the truth, but also that if the false information were taken out (and/or omitted facts put back in), the rest of the affidavit would not establish probable cause.
The Fourth Circuit examined the record and found evidence that Detective Dougans intentionally or recklessly misrepresented that a witness had given him the turned-in tag number, misrepresented that he had searched for Plaintiff's turned-in tag, and omitted that his state criminal database search for a white man otherwise matching Plaintiff's description turned up nothing. After correcting for these errors, the affidavit would have at most applied for the arrest of a white man of the Plaintiff's first and last name, and therefore did not make probable cause for Plaintiff's arrest. The fact that some other officer served the warrant did not save Detective Dougans from Fourth Amendment liability, because he was the one who applied for its issuance when he knew about the lack of probable cause. (However, it did save him and the County from Maryland state false arrest claims; only the actual arresting officer can be liable for that.) Lack of probable cause is also evidence of malice supporting the Maryland tort of false arrest.
Since a reasonable jury could find that Detective Dougans had violated Plaintiff's Fourth Amendment rights, the Fourth Circuit considered whether those rights were clearly established when Detective Dougans swore out the misleading warrant, and ruled that for at least ten years, binding precedent had forbidden officers to mislead magistrates into issuing warrants that the offending officers knew were without probable cause. Under no reasonable reading of the record could Detective Dougans be entitled to qualified immunity.
The Fourth Circuit heavily criticized Detective Dougans' derogatory and erroneous statements about Plaintiff's case, noting the impropriety of trying to use the appellate process to dispute heretofore undisputed facts. Many of Detective Dougans' cited cases actually undercut his position instead of supporting it. Plaintiff had made a substantial preliminary showing of serious constitutional violations, and if anyone's case relied chiefly on supposition and error, it was Detective Dougans'. SUMMARY JUDGMENT AFFIRMED as to the Maryland false arrest claim; REVERSED in all other respects.
EDITORIAL: Bravo Zulu, Fourth Circuit! Cases like these are the very reason why we have appellate courts--to correct obvious screwups at the trial level. Two thumbs down, WAY down, for the detective and his lawyer. Together, they are a textbook illustration of the difference between a dumbass and an assclown. A mere dumbass waits five months between investigation and warrant, by which time all details have been long forgotten and the file is all there is to go on. Shoulda taped that little note paper in there!
An assclown decides (assumes? hopes?) that appellate judges and their law clerks will believe whatever hooey they serve up in the brief, and not take a few minutes to read transcripts and affidavits, or pull and read cited cases. Said assclown is in for an unpleasant surprise, because judges and clerks DO check up on appellate lawyers--and they DO keep private lists of bullcrap artists who try to sleaze their way to victory. Assclowns abound in the insurance defense community, but government lawyers ought to know far better.
Argue the facts and law as they really are, take your lumps as they come, and move on--works for me, and might well have worked here. Instead, it looks like His Highness Prince George of County will be whipping out the royal checkbook. And all because of a used lawnmower that wasn't gone for even a whole day. What a way to run a railroad.
Saturday, January 20, 2007
The Truth, The Whole Truth, And Nothing But The Wrong Shoe Size
KOHLER v. ENGLADE, USCA for the Fifth Circuit No. 05-30541, 2006 U.S.App. LEXIS 28841, appeal from USDC-LAMD before Garza, DeMoss, and Stewart, Circuit Judges, opinion by Garza, filed 21 Nov 2006.
FACTS: In 2001 near Baton Rouge, Louisiana, DNA evidence indicated that one unknown man raped and murdered three women. Surmising that a serial killer was on the loose, the FBI's Behavioral Analysis Unit (BAU) worked up a Criminal Investigative Analysis (aka profile) suggesting that the perp was between 25 and 35, "financially insecure," and worked a job that required physical strength. A size 10 or 11 shoe left a bloody footprint at one of the crime scenes. Police got 5,000 tips and asked 600 men for DNA samples. Two of the anonymous tips pointed to Plaintiff, currently unemployed, who had a 1982 burglary conviction but received a full pardon for same in 1996. Police contacted Plaintiff and asked for a DNA sample, which he refused to give. Plaintiff asserted his innocence, informing the police of his pardon and that he had size 13 feet and wore size 14 work boots, and inviting the police to investigate his whereabouts at the times of the crimes. An officer told Plaintiff that if police had to get a warrant for his DNA, Plaintiff "could get his name in the papers" because that would be public record. Plaintiff still refused. Detective Johnson then contacted Plaintiff, who again refused to supply a DNA sample.
Detective Johnson wrote and swore to an affidavit stating among other things that only 15 of 600 subjects had refused to provide DNA samples, that two anonymous tips pointed to Plaintiff, the 1982 burglary conviction, Plaintiff's current unemployment, and Plaintiff's former employment with a company that had a location near where a victim's cell phone was found. Not in the affidavit were: Plaintiff had not worked there in 10 years, Plaintiff's pardon of the burglary conviction, any corroboration of the anonymous tips, or any mention of the FBI profile. The warrant issued. Plaintiff submitted to DNA testing and promptly appeared in local media as a suspected serial killer who was refusing to cooperate with the police.
Two months later, Plaintiff read in the local newspaper that the DNA test excluded him as the donor of any material from the crime scenes. Later still, police identified the correct DNA donor. In 2004, career criminal Derrick Todd Lee received a life sentence in one of the murder cases and a death sentence in a second.
PROCEDURE: Plaintiff sued Detective Johnson, his chief of police, the city, the parish, and the parish sheriff under 42 U.S.C. § 1983 for violation of his Fourth Amendment right to be free from unreasonable search and seizure. The central claim was that Detective Johnson submitted a search warrant affidavit that did not contain enough facts to establish probable cause to warrant a DNA search. Plaintiff alleged that the other defendants had policies or customs of violating similar rights. Defendants moved for summary judgment. The district court ruled that Detective Johnson knew enough facts, including the FBI profile, to establish probable cause, and even if the omitted facts favorable to Plaintiff had been in the affidavit, probable cause still existed. Detective Johnson did not plead qualified immunity. Also, there was no evidence to prove a policy or custom of violation as to any other defendant. From this grant of summary judgment, Plaintiff appealed to the Fifth Circuit.
DECISION: The district court correctly released all but Detective Johnson from liability because no evidence existed of a policy or custom of violation, but Detective Johnson himself was another matter. Anonymous tips are shaky grounds for probable cause unless and until corroborated, which these never were. Plaintiff refused to provide DNA voluntarily, once worked near the site where a victim's cell phone turned up, and had a 20-year-old burglary conviction, but none of that means Plaintiff was likely a serial killer. Detective Johnson's counsel conceded at oral argument that the affidavit did not establish probable cause, but then argued that the FBI profile added enough to the affidavit to save it. Since Detective Johnson did not include the profile in the affidavit and the issuing magistrate could not have known about it, that made no difference, and even if the profile had been in the affidavit, Plaintiff's physical strength and financial difficulty were typical of thousands of men in the area. Plaintiff further complained about the exculpatory information left off of the affidavit (a Franks claim), but since the affidavit was facially lacking in probable cause, Franks did not apply here. Though Detective Johnson did not assert qualified immunity as a defense, he could do so at trial, although it probably would not work. Summary judgment AFFIRMED as to all other defendants, but VACATED AND REMANDED for further proceedings as to Detective Johnson.
EDITORIAL: Just the facts, folks. Not only did a lot of time and effort get wasted on the obviously wrong man, but now some major bucks will change hands. Sometimes people won't cooperate because they're guilty, and sometimes they won't cooperate because they're innocent and you're being a jerk. Don't compound the problem by pulling a fast one on the magistrate. If an officer got caught doing this in my AO, said dude would need to relocate to some other area code.
FACTS: In 2001 near Baton Rouge, Louisiana, DNA evidence indicated that one unknown man raped and murdered three women. Surmising that a serial killer was on the loose, the FBI's Behavioral Analysis Unit (BAU) worked up a Criminal Investigative Analysis (aka profile) suggesting that the perp was between 25 and 35, "financially insecure," and worked a job that required physical strength. A size 10 or 11 shoe left a bloody footprint at one of the crime scenes. Police got 5,000 tips and asked 600 men for DNA samples. Two of the anonymous tips pointed to Plaintiff, currently unemployed, who had a 1982 burglary conviction but received a full pardon for same in 1996. Police contacted Plaintiff and asked for a DNA sample, which he refused to give. Plaintiff asserted his innocence, informing the police of his pardon and that he had size 13 feet and wore size 14 work boots, and inviting the police to investigate his whereabouts at the times of the crimes. An officer told Plaintiff that if police had to get a warrant for his DNA, Plaintiff "could get his name in the papers" because that would be public record. Plaintiff still refused. Detective Johnson then contacted Plaintiff, who again refused to supply a DNA sample.
Detective Johnson wrote and swore to an affidavit stating among other things that only 15 of 600 subjects had refused to provide DNA samples, that two anonymous tips pointed to Plaintiff, the 1982 burglary conviction, Plaintiff's current unemployment, and Plaintiff's former employment with a company that had a location near where a victim's cell phone was found. Not in the affidavit were: Plaintiff had not worked there in 10 years, Plaintiff's pardon of the burglary conviction, any corroboration of the anonymous tips, or any mention of the FBI profile. The warrant issued. Plaintiff submitted to DNA testing and promptly appeared in local media as a suspected serial killer who was refusing to cooperate with the police.
Two months later, Plaintiff read in the local newspaper that the DNA test excluded him as the donor of any material from the crime scenes. Later still, police identified the correct DNA donor. In 2004, career criminal Derrick Todd Lee received a life sentence in one of the murder cases and a death sentence in a second.
PROCEDURE: Plaintiff sued Detective Johnson, his chief of police, the city, the parish, and the parish sheriff under 42 U.S.C. § 1983 for violation of his Fourth Amendment right to be free from unreasonable search and seizure. The central claim was that Detective Johnson submitted a search warrant affidavit that did not contain enough facts to establish probable cause to warrant a DNA search. Plaintiff alleged that the other defendants had policies or customs of violating similar rights. Defendants moved for summary judgment. The district court ruled that Detective Johnson knew enough facts, including the FBI profile, to establish probable cause, and even if the omitted facts favorable to Plaintiff had been in the affidavit, probable cause still existed. Detective Johnson did not plead qualified immunity. Also, there was no evidence to prove a policy or custom of violation as to any other defendant. From this grant of summary judgment, Plaintiff appealed to the Fifth Circuit.
DECISION: The district court correctly released all but Detective Johnson from liability because no evidence existed of a policy or custom of violation, but Detective Johnson himself was another matter. Anonymous tips are shaky grounds for probable cause unless and until corroborated, which these never were. Plaintiff refused to provide DNA voluntarily, once worked near the site where a victim's cell phone turned up, and had a 20-year-old burglary conviction, but none of that means Plaintiff was likely a serial killer. Detective Johnson's counsel conceded at oral argument that the affidavit did not establish probable cause, but then argued that the FBI profile added enough to the affidavit to save it. Since Detective Johnson did not include the profile in the affidavit and the issuing magistrate could not have known about it, that made no difference, and even if the profile had been in the affidavit, Plaintiff's physical strength and financial difficulty were typical of thousands of men in the area. Plaintiff further complained about the exculpatory information left off of the affidavit (a Franks claim), but since the affidavit was facially lacking in probable cause, Franks did not apply here. Though Detective Johnson did not assert qualified immunity as a defense, he could do so at trial, although it probably would not work. Summary judgment AFFIRMED as to all other defendants, but VACATED AND REMANDED for further proceedings as to Detective Johnson.
EDITORIAL: Just the facts, folks. Not only did a lot of time and effort get wasted on the obviously wrong man, but now some major bucks will change hands. Sometimes people won't cooperate because they're guilty, and sometimes they won't cooperate because they're innocent and you're being a jerk. Don't compound the problem by pulling a fast one on the magistrate. If an officer got caught doing this in my AO, said dude would need to relocate to some other area code.
Crack in da Pocket Does Not Equal Crack in da HOUUUUUUUSE
UNITED STATES v. MCPHEARSON, USCA-6 No. 05-5534, 2006 U.S.App. LEXIS 29129, appeal from USDC-TNWD, before Circuit Judges Gibbons and Rogers and USDJ-OHSD Holschuh, opinion by Gibbons, dissent by Rogers, filed 27 Nov 2006.
LONG STORY SHORT: Finding 6.4 grams of cocaine during a search incident to arrest is not by itself probable cause to search the residence for evidence of illegal drug dealing.
FACTS: Two investigators of the Jackson, Tennessee Police Department arrived at what E-911 records showed to be Defendant's house to arrest Defendant on a warrant for simple assault. Defendant responded to a knock on the front door and was promptly arrested. The officers walked Defendant to the police car and searched him incident to the arrest, finding 6.4 grams of a white chalky substance in a clear plastic bag in his front pocket. A field test indicated the substance to be cocaine. Two officers went to obtain a search warrant based only on this information. while more officers secured the house, told two females they could not leave, and conducted a protective sweep inside, finding another male subject later charged in the case. Search pursuant to warrant produced firearms and distribution quantities of crack cocaine in the house.
PROCEDURE: The United States prosecuted Defendant in US District Court for possession of a firearm by a convicted felon, possession of crack cocaine with intent to distribute, and possession of a firearm during and in relation to a drug-trafficking crime. Defendant moved to suppress all evidence obtained during the protective sweep and warranted search. The district court held that a bare-bones affidavit swearing only to a relatively small amount of cocaine found on Defendant's person, without more, was not enough to support probable cause. This was not the same as finding distribution quantities or hearing evasive answers to any questions about where Defendant got the drugs, or even a statement that the scenario was consistent with drug dealing based on the officer's training and experience, which might have been probable cause. Since there was no basis for the warrant, neither was there any basis for the protective sweep prior to serving it. Neither could such a facially defective affidavit support a good-faith mistake argument. MOTION TO SUPPRESS GRANTED in all respects. The United States appealed the suppression of evidence gotten from the warranted search, but not from the protective sweep.
HELD: Search warrant affidavits must establish a nexus between the place to be searched and the evidence sought. This affidavit failed to do so because all it stated was that officers arrested Defendant for a non-drug offense at his residence and then happened to find a non-distribution quantity of controlled substances on his person. With additional facts, such as a history of drug dealing, a reliable informant reporting drugs and paraphernalia at the house, heavy traffic in and out of the house, and so on, the search might have stood, but none of that was present in the affidavit. As it was, the affidavit was so vague and conclusory as to be meaningless, so the search was invalid. By not raising the issue on appeal, the United States conceded that the protective sweep was invalid. SUPPRESSION AFFIRMED.
The dissent would have held the search valid because 6.4 grams is a relatively large quantity to be found on a person, and even though that aspect of it was a close case, the good faith exception should apply.
EDITORIAL: If you can get a judge to dissent in this kind of a case, it was close indeed. A little more evidence would have pushed it over the edge. Hard to fault the officers for taking initiative to preserve evidence. Had they just taken the guy to jail, the other dopeslingers in the house would have made the goodies disappear before the next commercial break. Even if you find a shipload of crack in individually wrapped packets, it's a capital idea to include all that "training and experience" in your affidavit, and also to make a few quick calls to any narcs who know the guy to be a dealer.
LONG STORY SHORT: Finding 6.4 grams of cocaine during a search incident to arrest is not by itself probable cause to search the residence for evidence of illegal drug dealing.
FACTS: Two investigators of the Jackson, Tennessee Police Department arrived at what E-911 records showed to be Defendant's house to arrest Defendant on a warrant for simple assault. Defendant responded to a knock on the front door and was promptly arrested. The officers walked Defendant to the police car and searched him incident to the arrest, finding 6.4 grams of a white chalky substance in a clear plastic bag in his front pocket. A field test indicated the substance to be cocaine. Two officers went to obtain a search warrant based only on this information. while more officers secured the house, told two females they could not leave, and conducted a protective sweep inside, finding another male subject later charged in the case. Search pursuant to warrant produced firearms and distribution quantities of crack cocaine in the house.
PROCEDURE: The United States prosecuted Defendant in US District Court for possession of a firearm by a convicted felon, possession of crack cocaine with intent to distribute, and possession of a firearm during and in relation to a drug-trafficking crime. Defendant moved to suppress all evidence obtained during the protective sweep and warranted search. The district court held that a bare-bones affidavit swearing only to a relatively small amount of cocaine found on Defendant's person, without more, was not enough to support probable cause. This was not the same as finding distribution quantities or hearing evasive answers to any questions about where Defendant got the drugs, or even a statement that the scenario was consistent with drug dealing based on the officer's training and experience, which might have been probable cause. Since there was no basis for the warrant, neither was there any basis for the protective sweep prior to serving it. Neither could such a facially defective affidavit support a good-faith mistake argument. MOTION TO SUPPRESS GRANTED in all respects. The United States appealed the suppression of evidence gotten from the warranted search, but not from the protective sweep.
HELD: Search warrant affidavits must establish a nexus between the place to be searched and the evidence sought. This affidavit failed to do so because all it stated was that officers arrested Defendant for a non-drug offense at his residence and then happened to find a non-distribution quantity of controlled substances on his person. With additional facts, such as a history of drug dealing, a reliable informant reporting drugs and paraphernalia at the house, heavy traffic in and out of the house, and so on, the search might have stood, but none of that was present in the affidavit. As it was, the affidavit was so vague and conclusory as to be meaningless, so the search was invalid. By not raising the issue on appeal, the United States conceded that the protective sweep was invalid. SUPPRESSION AFFIRMED.
The dissent would have held the search valid because 6.4 grams is a relatively large quantity to be found on a person, and even though that aspect of it was a close case, the good faith exception should apply.
EDITORIAL: If you can get a judge to dissent in this kind of a case, it was close indeed. A little more evidence would have pushed it over the edge. Hard to fault the officers for taking initiative to preserve evidence. Had they just taken the guy to jail, the other dopeslingers in the house would have made the goodies disappear before the next commercial break. Even if you find a shipload of crack in individually wrapped packets, it's a capital idea to include all that "training and experience" in your affidavit, and also to make a few quick calls to any narcs who know the guy to be a dealer.
Thursday, January 18, 2007
Inside Job: Collective Knowledge Doctrine aka Fellow Officer Rule is Alive And Well
UNITED STATES v. RAMIREZ, USCA-9 Nos. 05-50165, 05-50181, 2007 U.S.App. LEXIS 869, on appeal from USDC-CACD, before Kozinski, O'Scannlain, and Bybee, Circuit Judges, opinion by O'Scannlain, concurrence by Kozinski filed 16 Jan 2007.
LONG STORY SHORT: An officer who has knowledge of probable cause that a vehicle is carrying contraband may, request that another officer in the same department stop the vehicle and investigate, without telling the stopping officer why.
FACTS: Glendale PD officers stopped a Mercury Mountaineer, arrested the driver, and after a drug dog alerted to drug residue, discovered a sophisticated hidden compartment inside, which was empty at the time. 12 days later, Sergeant Meier of Glendale PD, who had witnessed the search and the secret compartment, observed the same Mountaineer leave a residence in Los Angeles that he was surveilling. Defendant 1 was driving and Defendant 2 was in the shotgun seat. Officers Lawrence and Allen ran the tag and discovered that it was registered to someone else at the residence that Defendants just left, and the officers followed the Mountaineer to a parking lot in the city of Paramount.
While the Mountaineer was in the parking lot, a Silverado drove up and two men got out of it to meet with Defendants. Defendant 2 took a gym bag from the Silverado men and placed it in the Mountaineer, and the Silverado men accepted a manila envelope from Defendants and drove off in the Silverado. The officers could see the Mountaineer rocking back and forth consistent with Defendants moving around inside it, and then it drove off in a different direction from the Silverado, again with Defendant 1 driving and Defendant 2 riding. Officers Lawrence and Allen reported all this to Sergeant Meier, who surmised that Defendants had accepted drugs and hidden them in the secret compartment.
Sergeant Meier called over the department radio frequency for an officer to stop the Mountaineer on I-5, without saying why. Officer Hulben, a motor officer of Glendale PD's traffic division, heard the call and knowing that Sergeant Meier was head of a vice/narcotics detail, surmised that the Mountaineer must be involved in a drug case. Officer Hulben sighted the Mountaineer and observed it straddling two lanes of traffic. He stopped it for the California infraction of failing to drive within a single lane and arrested Defendant 1 for driving without a license, although subsequently that charge proved unfounded. Defendant 2 was given a ride to the police station but not arrested. While the Mountaineer was stopped, a drug dog alerted to the area of the secret compartment. Police opened the secret compartment to discover 8kg of cocaine inside.
PROCEDURE: Based on the overt actions observed, the United States indicted Defendants for conspiracy to possess with intent to distribute 8kg of a mixture or substance containing a detectable amount of cocaine, 21 U.S.C. § 846. Defendants moved to suppress the cocaine, arguing that Officer Hulben's lack of personal knowledge for the reason behind the stop meant that he had no probable cause to search the vehicle. The trial court disagreed, applying the collective knowledge doctrine to Sergeant Meier's personal knowledge of probable cause, and noting that an open call over a police radio to stop a certain vehicle was so unusual as to alert all officers that the stop would not be ordinary. MOTION TO SUPPRESS DENIED. Defendants pleaded guilty and received sentences of 120 months, on condition that they could appeal the denial of suppression to the U.S. Court of Appeals for the Ninth Circuit. On appeal, Defendants conceded that Sergeant Meier had probable cause to search their vehicle.
DECISION: An officer's subjective motive for stopping a vehicle is irrelevant, so long as the officer had some legally sufficient reason for stopping it. The invalidity of Defendant 1's arrest for driving without a license was also irrelevant because Officer Hulben already had probable cause to detain Defendants until a drug dog arrived. Probable cause was present because Sergeant Meier's knowledge of probable cause carried over to Officer Hulben by virtue of the collective knowledge doctrine, also known as the fellow officer rule.
The exact factual situation in this case had not yet come up to the Ninth Circuit, but other Circuits had considered nearly identical facts, and applied the fellow officer rule to deny suppression. The Ninth Circuit had aggregated the facts in cases where officers working the same case, but with no one officer knowing all the facts, had communicated with each other. This imputation of missing pieces was one type of fellow officer situation. The second type was the present case, where officers involved in an investigation communicated with other officers in the same department who had no knowledge at all of that investigation. In some prior cases, the officers requesting assistance had stated reasons for asking, but even then, the supplied facts would not have independently established probable cause in the mind of the officer who actually stopped or searched the suspects. All officers on a department work on the same team and officer safety, along with the sheer complexity of modern police work, may not allow disclosure of any details other than a bare request or order to stop or arrest a subject. Denial of suppression AFFIRMED in all respects.
Judge Kozinski wrote a separate concurrence to emphasize that this case was not one where the requesting officer had no probable cause to start with, but instead featured a perfectly valid officer safety tactic of making a drug stop look like an ordinary traffic stop.
EDITORIAL: Spot-on! Judge Kozinski is truly a prize package. All you need to do now is have the narcs build a good case to start with. Bad guys might be listening to radio scanners too.
LONG STORY SHORT: An officer who has knowledge of probable cause that a vehicle is carrying contraband may, request that another officer in the same department stop the vehicle and investigate, without telling the stopping officer why.
FACTS: Glendale PD officers stopped a Mercury Mountaineer, arrested the driver, and after a drug dog alerted to drug residue, discovered a sophisticated hidden compartment inside, which was empty at the time. 12 days later, Sergeant Meier of Glendale PD, who had witnessed the search and the secret compartment, observed the same Mountaineer leave a residence in Los Angeles that he was surveilling. Defendant 1 was driving and Defendant 2 was in the shotgun seat. Officers Lawrence and Allen ran the tag and discovered that it was registered to someone else at the residence that Defendants just left, and the officers followed the Mountaineer to a parking lot in the city of Paramount.
While the Mountaineer was in the parking lot, a Silverado drove up and two men got out of it to meet with Defendants. Defendant 2 took a gym bag from the Silverado men and placed it in the Mountaineer, and the Silverado men accepted a manila envelope from Defendants and drove off in the Silverado. The officers could see the Mountaineer rocking back and forth consistent with Defendants moving around inside it, and then it drove off in a different direction from the Silverado, again with Defendant 1 driving and Defendant 2 riding. Officers Lawrence and Allen reported all this to Sergeant Meier, who surmised that Defendants had accepted drugs and hidden them in the secret compartment.
Sergeant Meier called over the department radio frequency for an officer to stop the Mountaineer on I-5, without saying why. Officer Hulben, a motor officer of Glendale PD's traffic division, heard the call and knowing that Sergeant Meier was head of a vice/narcotics detail, surmised that the Mountaineer must be involved in a drug case. Officer Hulben sighted the Mountaineer and observed it straddling two lanes of traffic. He stopped it for the California infraction of failing to drive within a single lane and arrested Defendant 1 for driving without a license, although subsequently that charge proved unfounded. Defendant 2 was given a ride to the police station but not arrested. While the Mountaineer was stopped, a drug dog alerted to the area of the secret compartment. Police opened the secret compartment to discover 8kg of cocaine inside.
PROCEDURE: Based on the overt actions observed, the United States indicted Defendants for conspiracy to possess with intent to distribute 8kg of a mixture or substance containing a detectable amount of cocaine, 21 U.S.C. § 846. Defendants moved to suppress the cocaine, arguing that Officer Hulben's lack of personal knowledge for the reason behind the stop meant that he had no probable cause to search the vehicle. The trial court disagreed, applying the collective knowledge doctrine to Sergeant Meier's personal knowledge of probable cause, and noting that an open call over a police radio to stop a certain vehicle was so unusual as to alert all officers that the stop would not be ordinary. MOTION TO SUPPRESS DENIED. Defendants pleaded guilty and received sentences of 120 months, on condition that they could appeal the denial of suppression to the U.S. Court of Appeals for the Ninth Circuit. On appeal, Defendants conceded that Sergeant Meier had probable cause to search their vehicle.
DECISION: An officer's subjective motive for stopping a vehicle is irrelevant, so long as the officer had some legally sufficient reason for stopping it. The invalidity of Defendant 1's arrest for driving without a license was also irrelevant because Officer Hulben already had probable cause to detain Defendants until a drug dog arrived. Probable cause was present because Sergeant Meier's knowledge of probable cause carried over to Officer Hulben by virtue of the collective knowledge doctrine, also known as the fellow officer rule.
The exact factual situation in this case had not yet come up to the Ninth Circuit, but other Circuits had considered nearly identical facts, and applied the fellow officer rule to deny suppression. The Ninth Circuit had aggregated the facts in cases where officers working the same case, but with no one officer knowing all the facts, had communicated with each other. This imputation of missing pieces was one type of fellow officer situation. The second type was the present case, where officers involved in an investigation communicated with other officers in the same department who had no knowledge at all of that investigation. In some prior cases, the officers requesting assistance had stated reasons for asking, but even then, the supplied facts would not have independently established probable cause in the mind of the officer who actually stopped or searched the suspects. All officers on a department work on the same team and officer safety, along with the sheer complexity of modern police work, may not allow disclosure of any details other than a bare request or order to stop or arrest a subject. Denial of suppression AFFIRMED in all respects.
Judge Kozinski wrote a separate concurrence to emphasize that this case was not one where the requesting officer had no probable cause to start with, but instead featured a perfectly valid officer safety tactic of making a drug stop look like an ordinary traffic stop.
EDITORIAL: Spot-on! Judge Kozinski is truly a prize package. All you need to do now is have the narcs build a good case to start with. Bad guys might be listening to radio scanners too.
Wednesday, January 17, 2007
Next Time You Have 60 Officers On Scene, Send Two Rookies To Get An Arrest Warrant
FISHER v. CITY OF SAN JOSE, USCA-9 No. 04-16095, 2007 U.S.App. LEXIS 860, appeal from USDC-CAND, before Thompson, Berzon, and Callahan, Circuit Judges, opinion by Berzon, dissent by Callahan filed 16 Jan 2007.
LONG STORY SHORT: Armed suspect barricaded in his home was effectively arrested in his home because that is where he decided to submit to calls to surrender after 12 hours, but since so many officers were present for so long, a warrant should have been obtained. Binding in AK, AZ, CA, HI, ID, MT, NV, OR, WA.
FACTS: Security Officer Serrano was investigating a noise complaint at an apartment complex just before midnight, 23 October 1999. While walking past the apartment underneath the one complained about, SO Serrano happened to see that Plaintiff was at home, and asked Plaintiff to come outside, intending to find out what Plaintiff knew about the noise. Plaintiff appeared at his door, showing signs of intoxication and with a World War 2 rifle in hand. SO Serrano asked Plaintiff about the noise, but Plaintiff did not respond well to those questions and instead volunteered his opinions on the Second Amendment. It was not clear from subsequent testimony whether Plaintiff pointed the rifle at SO Serrano, but SO Serrano was uncomfortable with an armed drunk. He went to his supervisor, who called police.
Sergeant Ryan and other officers of San Jose PD responded around 0200. Sergeant Ryan threw small rocks at Plaintiff's window until Plaintiff came to the door and drunkenly proclaimed his Second Amendment rights, ignoring Sergeant Ryan's questions. An officer telephoned Plaintiff's apartment; Plaintiff's wife answered and at police request, she left the apartment, telling officers that Plaintiff had been drinking and that he had a collection of eighteen vintage rifles. Plaintiff's phone thereafter remained busy. At 0300 or 0400, a police negotiator talked with Plaintiff, who said the negotiator could come inside, but he would shoot her if she did. Another officer observing the apartment. reported seeing Plaintiff aim a rifle at Sergeant Ryan and his partner outside. Plaintiff was not seen with a rifle after 0630. By this time, more than 60 officers were present.
MERGE, the tactical team, arrived at 0700 and relieved the patrol officers, planning to arrest Plaintiff for pointing a rifle at officers. They turned off Plaintiff's power at 0848, broke his sliding glass door to toss in a throw phone, detonated a flash-bang at 1052, launched CS canisters into his apartment beginning at 1252, and talked at him with a bullhorn. While the officers were outside, Plaintiff told them repeatedly to leave him alone. Finally Plaintiff picked up the throw phone at 1413 and agreed to walk outside in his boxers and socks, and then did so, although when he stopped before being told to, an officer hit him in the leg with a less-lethal projectile, then handcuffed him.
Plaintiff went to trial on the California state charge of exhibiting a firearm against a peace officer, but the jury deadlocked and Plaintiff later pled no contest to brandishing a firearm in the presence of a security officer, a misdemeanor.
PROCEDURE: Plaintiff sued the City of San Jose, the San Jose PD, and some individual officers in U.S. District Court for the Northern District of California for unreasonable seizure in violation of the Fourth Amendment, specifically that his arrest was illegal because it was without a warrant. Plaintiff also claimed that the CS gas and the less-lethal projectile hit were batteries under California state law. After an eight-day trial, the jury rendered a verdict in favor of all defendants and Plaintiff took nothing. Upon motion for judgment as a matter of law after the verdict (aka JNOV), the trial court ruled that because Plaintiff was not seen with a rifle after 0630, no exigency existed, and the police had six hours from then until Plaintiff's surrender to get a telephonic arrest warrant. The deadlocked jury in Plaintiff's trial for exhibiting a firearm against a peace officer indicated that a neutral and detached magistrate may well not have found probable cause to issue an arrest warrant. Plaintiff's arrest was an unreasonable seizure in violation of the Fourth Amendment. JNOV GRANTED; Plaintiff awarded $1 nominal damages from the City of San Jose; injunction entered against same City ordering it to train its officers in proper Fourth Amendment arrest procedures. The City appealed the damages and injunction to the U.S. Court of Appeals for the Ninth Circuit. Plaintiff did not appeal the verdict for defenants on the state law claims, and conceded that probable cause to arrest him did exist during the standoff.
DECISION: First came the question of when and where Plaintiff was arrested. Arrest requires submission to the arresting officer either by force or by the arrestee's own decision. The location of arrest depends not on where the officers were at the time, but on where the arrestee was. Plaintiff was in his home when he decided to surrender, so that is where he was arrested. The difficulty with the usual standard of whether a reasonable person would have felt free to leave is that barricaded subjects may be surrounded, but elect to stay where they are. Whether or not Plaintiff submitted to any show of force before 0630, it is certain that after 0630, he went about his business in his home, as he could have done whether or not he was subjected to a show of force. Only when Plaintiff decided to go outside to be taken into custody was he arrested.
Since the arrest was without a warrant, an exception to the warrant requirement must have existed; otherwise, the arrest was unconstitutional. A person cannot be Terry-stopped in his own home on reasonable suspicion; probable cause is necessary, as is a warrant, unless a warrant exception applies. The relevant exception here was exigent circumstances, but though Plaintiff was obviously dangerous while barricaded with eighteen rifles, exigency also requires a showing that police did not have time to get a warrant. Here, the length of time that passed from 0630 to the first CS canisters projected into his home at 1300, which constituted "entries," was long enough for one or more out of the 60 officers present to begin obtaining a telephonic warrant. Plaintiff's arrest violated the Fourth Amendment. JUDGMENT AFFIRMED in all respects.
Judge Callahan dissented on grounds that Plaintiff did not objectively feel free to leave as of MERGE's arrival or at the very latest when his electricity was turned off. A reasonable person would know that the only outcomes would be surrender or forced entry. Throw phones should not be subject to any warrant requirement because they are good faith efforts to end standoffs peacably by communicating with the subject, who is in turn free to ignore them or throw the phone right back. Exigent circumstances still existed at all times past 0630 because Plaintiff was armed and a deadly danger to all within range. The jury's verdict should have remained undisturbed.
EDITORIAL: Would you believe, I have to just barely agree with the decision here, solely and only because yes, some supervisor should have told some rookie or detective to go get a warrant in the twelve hours this guy was in their lives. Fer sher, they would have gotten one. But as usual, nobody wants to leave the scene. I'd be like anybody else there, a kid on Christmas Eve waiting to see what Santa is going to bring. However, police officers do not always get to do exactly what they want. This is a relatively painless lesson that if you CAN get a warrant, DO IT FOR PETESAKES. Nobody got hurt, no evidence got suppressed, and the alleged bad guy got his day in court and won. A dollar in damages and an order to hold some in-service training on warrant requirements--hey, could have been worse.
LONG STORY SHORT: Armed suspect barricaded in his home was effectively arrested in his home because that is where he decided to submit to calls to surrender after 12 hours, but since so many officers were present for so long, a warrant should have been obtained. Binding in AK, AZ, CA, HI, ID, MT, NV, OR, WA.
FACTS: Security Officer Serrano was investigating a noise complaint at an apartment complex just before midnight, 23 October 1999. While walking past the apartment underneath the one complained about, SO Serrano happened to see that Plaintiff was at home, and asked Plaintiff to come outside, intending to find out what Plaintiff knew about the noise. Plaintiff appeared at his door, showing signs of intoxication and with a World War 2 rifle in hand. SO Serrano asked Plaintiff about the noise, but Plaintiff did not respond well to those questions and instead volunteered his opinions on the Second Amendment. It was not clear from subsequent testimony whether Plaintiff pointed the rifle at SO Serrano, but SO Serrano was uncomfortable with an armed drunk. He went to his supervisor, who called police.
Sergeant Ryan and other officers of San Jose PD responded around 0200. Sergeant Ryan threw small rocks at Plaintiff's window until Plaintiff came to the door and drunkenly proclaimed his Second Amendment rights, ignoring Sergeant Ryan's questions. An officer telephoned Plaintiff's apartment; Plaintiff's wife answered and at police request, she left the apartment, telling officers that Plaintiff had been drinking and that he had a collection of eighteen vintage rifles. Plaintiff's phone thereafter remained busy. At 0300 or 0400, a police negotiator talked with Plaintiff, who said the negotiator could come inside, but he would shoot her if she did. Another officer observing the apartment. reported seeing Plaintiff aim a rifle at Sergeant Ryan and his partner outside. Plaintiff was not seen with a rifle after 0630. By this time, more than 60 officers were present.
MERGE, the tactical team, arrived at 0700 and relieved the patrol officers, planning to arrest Plaintiff for pointing a rifle at officers. They turned off Plaintiff's power at 0848, broke his sliding glass door to toss in a throw phone, detonated a flash-bang at 1052, launched CS canisters into his apartment beginning at 1252, and talked at him with a bullhorn. While the officers were outside, Plaintiff told them repeatedly to leave him alone. Finally Plaintiff picked up the throw phone at 1413 and agreed to walk outside in his boxers and socks, and then did so, although when he stopped before being told to, an officer hit him in the leg with a less-lethal projectile, then handcuffed him.
Plaintiff went to trial on the California state charge of exhibiting a firearm against a peace officer, but the jury deadlocked and Plaintiff later pled no contest to brandishing a firearm in the presence of a security officer, a misdemeanor.
PROCEDURE: Plaintiff sued the City of San Jose, the San Jose PD, and some individual officers in U.S. District Court for the Northern District of California for unreasonable seizure in violation of the Fourth Amendment, specifically that his arrest was illegal because it was without a warrant. Plaintiff also claimed that the CS gas and the less-lethal projectile hit were batteries under California state law. After an eight-day trial, the jury rendered a verdict in favor of all defendants and Plaintiff took nothing. Upon motion for judgment as a matter of law after the verdict (aka JNOV), the trial court ruled that because Plaintiff was not seen with a rifle after 0630, no exigency existed, and the police had six hours from then until Plaintiff's surrender to get a telephonic arrest warrant. The deadlocked jury in Plaintiff's trial for exhibiting a firearm against a peace officer indicated that a neutral and detached magistrate may well not have found probable cause to issue an arrest warrant. Plaintiff's arrest was an unreasonable seizure in violation of the Fourth Amendment. JNOV GRANTED; Plaintiff awarded $1 nominal damages from the City of San Jose; injunction entered against same City ordering it to train its officers in proper Fourth Amendment arrest procedures. The City appealed the damages and injunction to the U.S. Court of Appeals for the Ninth Circuit. Plaintiff did not appeal the verdict for defenants on the state law claims, and conceded that probable cause to arrest him did exist during the standoff.
DECISION: First came the question of when and where Plaintiff was arrested. Arrest requires submission to the arresting officer either by force or by the arrestee's own decision. The location of arrest depends not on where the officers were at the time, but on where the arrestee was. Plaintiff was in his home when he decided to surrender, so that is where he was arrested. The difficulty with the usual standard of whether a reasonable person would have felt free to leave is that barricaded subjects may be surrounded, but elect to stay where they are. Whether or not Plaintiff submitted to any show of force before 0630, it is certain that after 0630, he went about his business in his home, as he could have done whether or not he was subjected to a show of force. Only when Plaintiff decided to go outside to be taken into custody was he arrested.
Since the arrest was without a warrant, an exception to the warrant requirement must have existed; otherwise, the arrest was unconstitutional. A person cannot be Terry-stopped in his own home on reasonable suspicion; probable cause is necessary, as is a warrant, unless a warrant exception applies. The relevant exception here was exigent circumstances, but though Plaintiff was obviously dangerous while barricaded with eighteen rifles, exigency also requires a showing that police did not have time to get a warrant. Here, the length of time that passed from 0630 to the first CS canisters projected into his home at 1300, which constituted "entries," was long enough for one or more out of the 60 officers present to begin obtaining a telephonic warrant. Plaintiff's arrest violated the Fourth Amendment. JUDGMENT AFFIRMED in all respects.
Judge Callahan dissented on grounds that Plaintiff did not objectively feel free to leave as of MERGE's arrival or at the very latest when his electricity was turned off. A reasonable person would know that the only outcomes would be surrender or forced entry. Throw phones should not be subject to any warrant requirement because they are good faith efforts to end standoffs peacably by communicating with the subject, who is in turn free to ignore them or throw the phone right back. Exigent circumstances still existed at all times past 0630 because Plaintiff was armed and a deadly danger to all within range. The jury's verdict should have remained undisturbed.
EDITORIAL: Would you believe, I have to just barely agree with the decision here, solely and only because yes, some supervisor should have told some rookie or detective to go get a warrant in the twelve hours this guy was in their lives. Fer sher, they would have gotten one. But as usual, nobody wants to leave the scene. I'd be like anybody else there, a kid on Christmas Eve waiting to see what Santa is going to bring. However, police officers do not always get to do exactly what they want. This is a relatively painless lesson that if you CAN get a warrant, DO IT FOR PETESAKES. Nobody got hurt, no evidence got suppressed, and the alleged bad guy got his day in court and won. A dollar in damages and an order to hold some in-service training on warrant requirements--hey, could have been worse.
Saturday, January 13, 2007
Six Bad Rounds After "Excitement of the Chase" Could Mean Huge Trouble
ADAMS v. SPEERS, USCA-9 No. 05-15159, 2007 U.S.App. LEXIS 442, appeal from USDC-CAED, before Noonan, Hawkins, and Thomas, Circuit Judges, opinion by Noonan filed 10 Jan 2007.
LONG STORY SHORT: Officer who joined chase, ran subject vehicle off the road, and shot vehicle's driver to death for no apparent reason was not entitled to qualified immunity. Binding in AK, AZ, CA, HI, ID, MT, NV, OR, WA.
FACTS: According to Plaintiffs, on the afternoon of 26 June 2001, Decedent borrowed his mother's 1998 Ford Expedition and ran several stop signs in the presence of a Merced County Sheriff Department detective. Decedent did not stop for the detective's emergency lights, and eventually four Merced County and two California Highway Patrol vehicles pursued the Expedition at speeds below posted limits. CHP Officer Speers, sitting in his marked patrol car within view of traffic as a speeding deterrent, heard the radio traffic, went to pick up a probation officer friend as a ride-along, and waited on the roadside where the pursuit was headed. When the Expedition passed by, Officer Speers tried to ram the Expedition but missed, and assumed the lead position in the pursuit set without radioing his intentions to the other units.
The pursuit continued for over 30 minutes until Officer Speers rammed the Expedition, creating a significant traffic hazard but not ending the pursuit. 9 minutes later, the Expedition U-turned through the median to avoid a traffic blockage ahead, and Officer Spears followed him and finally rammed him off the road, coming to rest so close to the Expedition that Officer Speers dinged it when he opened his door. As the other LE vehicles surrounded the Expedition, it slowly backed up and Officer Rivera was able to approach on foot and break the driver side window. Before Officer Rivera could pepper-spray Decedent, Officer Speers ran in front of the Expedition and, while it was still backing away from him, presented his service sidearm and fired six rounds, killing Decedent.
CHP's internal investigation recommended that adverse action be taken against Officer Speers because he violated CHP policy by: not wearing body armor; picking up an unauthorized passenger; failing to communicate with the other units in the pursuit; pursuing in an unfamiliar area; use of force without authorization to stop the pursuit; putting his car too close to the Expedition during the final stop; and firing without a clear background. Two other officers testified in deposition that they saw no reason for Officer Speers' firing at Decedent. Officer Speers testified in deposition that he did not fire to protect other officers.
PROCEDURE: Decedent's parents sued Officer Speers in U.S. District Court for the Eastern District of California under 42 U.S.C. § 1983 for violating Decedent's Fourth Amendment right to be free from unreasonable seizure, and under California state wrongful death law. Officer Speers moved for summary judgment on qualified immunity grounds, but the trial court ruled that material facts were still in dispute and that under the version of the facts most favorable to Plaintiffs, no reasonable officer would have resorted to deadly force and Officer Speers was not entitled to qualified immunity. SUMMARY JUDGMENT DENIED. Officer Spears immediately appealed the qualified immunity denial to the U.S. Court of Appeals for the Ninth Circuit. In his appellate brief, the California AG disputed a number of facts.
DECISION: Disputed facts deprive an appellate court of subject matter jurisdiction to hear an interlocutory appeal from denial of qualified immunity. However, the Ninth Circuit decided the appeal under Plaintiffs' version of the facts. Given that Officer Speers left his assigned static position, picked up an unauthorized passenger to enjoy the excitement of the chase, not radioing his intentions, cutting ahead of all the vehicles already in pursuit, ramming and attempting to ram the subject vehicle, and shooting Decedent without warning even though Decedent posed no immediate danger, a reasonable jury could find that Officer Speers committed an unreasonable seizure in violation of the Fourth Amendment. Denial of qualified immunity AFFIRMED in all respects.
EDITORIAL: Looks like Officer Speers decided to John Wayne it, and will be costing kaLEEfornia a buttload of ching--if and only if we can take the Ninth Circuit's opinion at face value. Instead, I modestly suggest that we try reading between the lines, and then we see that the Ninth Circus Court of Schlemiels has done it AGAIN.
Nowhere in this opinion does the Ninth Circus mention that the Fourth Amendment is not, cannot, and will never be defined by departmental policies. So what if this trooper was not wearing body armor, picked up a ride-along (and by the way, probation officers know a heck of a lot about their probationers and can arrest them for next to nothing so they should be along when possible), didn't call in the pursuit, and stopped too close to the subject vehicle? NONE repeat NONE of that has ANYthing to do with the FOURTH AMENDMENT. In fact, didn't we cover a case in this blog lately that affirmed a trial court's ruling that departmental policies could not come into evidence at all, because they are utterly irrelevant to whether a search or seizure was CONSTITUTIONALLY unreasonable? Ah, but you see, liberals as always must do what liberal politics requires them to do. If the law helps them that's fine, but if the law forbids them to do anything, well they ignore the offending law because they're just above all that.
Note also that Officer Speers admitted that no other officers were in danger, but conveniently absent is whether he thought HE HIMSELF was in danger! Probalee, he had some good reason to believe that, and a grand jury agreed heartily, or else he would have been tried and convicted in state court for murder or manslaughter. Even if the Expedition was backing away, the subject could have been reaching for a weapon and that could well be what Officer Speers saw.
Worst of all, the Ninth Circus thinks that if you've been told to sit beside the road and deter speeders, you MUST STAY THERE even if other officers obviously need assistance. The Ninth Circus will henceforth hammer you if you DARE to join a chase without somebody else telling you to, especially if you have the foresight to position yourself where they're going to be instead of where they've already been! Why, that means you're "off on a mission of your own creation"--their words, not mine. So in the Ninth Circuit, I guess you'd better stay put if you know what's good for you. If a brother or sister officer loses a gunfight because you weren't there to back them up, that is just fine with the Ninth Circus, and then they will spring the murderer because surely some OTHER officer in the heat of the moment violated their Fourth Amendment rights and the evidence has to be suppressed.
Rogue officer? Maybe. Rogue court? You betcha. Please, kaLEEfornia AG, move for rehearing or clarification.
LONG STORY SHORT: Officer who joined chase, ran subject vehicle off the road, and shot vehicle's driver to death for no apparent reason was not entitled to qualified immunity. Binding in AK, AZ, CA, HI, ID, MT, NV, OR, WA.
FACTS: According to Plaintiffs, on the afternoon of 26 June 2001, Decedent borrowed his mother's 1998 Ford Expedition and ran several stop signs in the presence of a Merced County Sheriff Department detective. Decedent did not stop for the detective's emergency lights, and eventually four Merced County and two California Highway Patrol vehicles pursued the Expedition at speeds below posted limits. CHP Officer Speers, sitting in his marked patrol car within view of traffic as a speeding deterrent, heard the radio traffic, went to pick up a probation officer friend as a ride-along, and waited on the roadside where the pursuit was headed. When the Expedition passed by, Officer Speers tried to ram the Expedition but missed, and assumed the lead position in the pursuit set without radioing his intentions to the other units.
The pursuit continued for over 30 minutes until Officer Speers rammed the Expedition, creating a significant traffic hazard but not ending the pursuit. 9 minutes later, the Expedition U-turned through the median to avoid a traffic blockage ahead, and Officer Spears followed him and finally rammed him off the road, coming to rest so close to the Expedition that Officer Speers dinged it when he opened his door. As the other LE vehicles surrounded the Expedition, it slowly backed up and Officer Rivera was able to approach on foot and break the driver side window. Before Officer Rivera could pepper-spray Decedent, Officer Speers ran in front of the Expedition and, while it was still backing away from him, presented his service sidearm and fired six rounds, killing Decedent.
CHP's internal investigation recommended that adverse action be taken against Officer Speers because he violated CHP policy by: not wearing body armor; picking up an unauthorized passenger; failing to communicate with the other units in the pursuit; pursuing in an unfamiliar area; use of force without authorization to stop the pursuit; putting his car too close to the Expedition during the final stop; and firing without a clear background. Two other officers testified in deposition that they saw no reason for Officer Speers' firing at Decedent. Officer Speers testified in deposition that he did not fire to protect other officers.
PROCEDURE: Decedent's parents sued Officer Speers in U.S. District Court for the Eastern District of California under 42 U.S.C. § 1983 for violating Decedent's Fourth Amendment right to be free from unreasonable seizure, and under California state wrongful death law. Officer Speers moved for summary judgment on qualified immunity grounds, but the trial court ruled that material facts were still in dispute and that under the version of the facts most favorable to Plaintiffs, no reasonable officer would have resorted to deadly force and Officer Speers was not entitled to qualified immunity. SUMMARY JUDGMENT DENIED. Officer Spears immediately appealed the qualified immunity denial to the U.S. Court of Appeals for the Ninth Circuit. In his appellate brief, the California AG disputed a number of facts.
DECISION: Disputed facts deprive an appellate court of subject matter jurisdiction to hear an interlocutory appeal from denial of qualified immunity. However, the Ninth Circuit decided the appeal under Plaintiffs' version of the facts. Given that Officer Speers left his assigned static position, picked up an unauthorized passenger to enjoy the excitement of the chase, not radioing his intentions, cutting ahead of all the vehicles already in pursuit, ramming and attempting to ram the subject vehicle, and shooting Decedent without warning even though Decedent posed no immediate danger, a reasonable jury could find that Officer Speers committed an unreasonable seizure in violation of the Fourth Amendment. Denial of qualified immunity AFFIRMED in all respects.
EDITORIAL: Looks like Officer Speers decided to John Wayne it, and will be costing kaLEEfornia a buttload of ching--if and only if we can take the Ninth Circuit's opinion at face value. Instead, I modestly suggest that we try reading between the lines, and then we see that the Ninth Circus Court of Schlemiels has done it AGAIN.
Nowhere in this opinion does the Ninth Circus mention that the Fourth Amendment is not, cannot, and will never be defined by departmental policies. So what if this trooper was not wearing body armor, picked up a ride-along (and by the way, probation officers know a heck of a lot about their probationers and can arrest them for next to nothing so they should be along when possible), didn't call in the pursuit, and stopped too close to the subject vehicle? NONE repeat NONE of that has ANYthing to do with the FOURTH AMENDMENT. In fact, didn't we cover a case in this blog lately that affirmed a trial court's ruling that departmental policies could not come into evidence at all, because they are utterly irrelevant to whether a search or seizure was CONSTITUTIONALLY unreasonable? Ah, but you see, liberals as always must do what liberal politics requires them to do. If the law helps them that's fine, but if the law forbids them to do anything, well they ignore the offending law because they're just above all that.
Note also that Officer Speers admitted that no other officers were in danger, but conveniently absent is whether he thought HE HIMSELF was in danger! Probalee, he had some good reason to believe that, and a grand jury agreed heartily, or else he would have been tried and convicted in state court for murder or manslaughter. Even if the Expedition was backing away, the subject could have been reaching for a weapon and that could well be what Officer Speers saw.
Worst of all, the Ninth Circus thinks that if you've been told to sit beside the road and deter speeders, you MUST STAY THERE even if other officers obviously need assistance. The Ninth Circus will henceforth hammer you if you DARE to join a chase without somebody else telling you to, especially if you have the foresight to position yourself where they're going to be instead of where they've already been! Why, that means you're "off on a mission of your own creation"--their words, not mine. So in the Ninth Circuit, I guess you'd better stay put if you know what's good for you. If a brother or sister officer loses a gunfight because you weren't there to back them up, that is just fine with the Ninth Circus, and then they will spring the murderer because surely some OTHER officer in the heat of the moment violated their Fourth Amendment rights and the evidence has to be suppressed.
Rogue officer? Maybe. Rogue court? You betcha. Please, kaLEEfornia AG, move for rehearing or clarification.
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