UNITED STATES v. ELSTON, USCA-4 No. 05-5223, http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/055223.P.pdf , on appeal from USDC-VAWD, before USCJs Williams and King and SrUSCJ Hamilton, opinion by King, filed 13 Mar 2007.
LONG STORY SHORT: Detailed descriptions from personal observations of an anonymous tipster, especially when the subject has threatened to shoot people with a gun and ammunition the tipster knew he possessed, can amount to reasonable suspicion for a Terry stop, and police making the stop can briefly hold the subject at gunpoint until they can confirm or dispel their suspicions. Binding in MD, NC, SC, VA, WV.
FACTS: A caller to the Roanoke, VA 911 center described an intoxicated driver who had just left her home in a dark blue 2003 pickup as a black male wearing a light blue sweater, jeans, and white sneakers; gave his correct first name and correct tag number; noted that the truck had dark tinted windows and a silver toolbox; and warned that the driver kept a loaded 9mm with three loaded magazines in the truck and had expressed an intent to "let them off in somebody." The caller gave her name to the 911 operator but asked the operator not to pass her name along to the police, because she feared retaliation.
Roanoke PD officers received the description and threat to shoot someone over the radio and on their MDTs, but not the tipster's name. Minutes later, Officer Hicks found a truck matching the description parked near the tipster's housing project, and ordered Defendant out at gunpoint and cuffed him. Defendant matched the description and smelled strongly of alcohol. Officer Reed arrived and either opened the truck door or looked through the door that Defendant had left open (he could not remember which later) and could see a handgun grip in plain view. Officer Hicks learned from a dispatcher that Defendant was a convicted felon, and arrested Defendant.
PROCEDURE: The United States indicted Defendant in U.S. District Court for the Western District of Virginia for possessing a firearm while a convicted felon. Defendant moved to suppress the weapon from his truck, arguing that the 911 call was an anonymous tip because the officers never learned the caller's identity, and there was no reasonable suspcion to detain him or search his vehicle. The trial court agreed that the tip was anonymous, but since the description had indicia of reliability alerting the police to substantial public danger, the officers' initial detention of Defendant was a reasonable Terry stop and the search did not violate the Fourth Amendment. MOTION TO SUPPRESS DENIED. Defendant pleaded guilty on condition that he could appeal the suppression to the U.S. Court of Appeals for the Fourth Circuit.
DECISION: Because the tip contained so much detail from a contemporaneous personal observation, it was enough to generate reasonable suspicion and justify a Terry stop even if it was anonymous. Also, the subject had expressed an imminent intention to shoot someone, a factor not present in the usual anonymous tip situation. The Fourth Circuit left open the question of whether a tip is anonymous if only the 911 system, not the officers making the stop, knows the tipster's name.
The initial stop was not an arrest, even though Defendant, ordered out of the truck at gunpoint, did not feel free to leave. A brief detention, even at gunpoint (especially when the subject was reported armed and dangerous), is not enough in the Fourth Circuit to change a Terry stop into an arrest, so long as officers detain the subject long enough to find out whether their reasonable suspicion of criminal activity was correct. Here, the officers almost immediately found the gun, which gave probable cause for arrest. The search of Defendant's truck, whether by opening the door or by looking through the open door, was justified as a protective sweep incident to a Terry stop, because subjects might be released after a brief detention or escape arrest, and checking the subject's vehicle for weapons is only prudent. DENIAL OF SUPPRESSION AFFIRMED.
EDITORIAL: Very good illustration that pointing guns does not always equal arrest. Also a good illustration of appellate courts' tendency to duck questions when they can. I forecast that the next time somebody calls 911 and says "don't tell him I told you," the Fourth Circuit will be glad to rule that this is not anonymous, since the 911 dispatchers are part of the same machine as the police. For that matter, in our little county, a deputy is not unlikely to hear the actual call and the caller's name, because the 911 center is a popular hangout and lunchroom for deputies between calls--but you didn't hear that from me.
Tuesday, March 13, 2007
Monday, March 12, 2007
Only Parole Officers Can Search Parolees Without Warrants, If State Law Says So
UNITED STATES v. FREEMAN, USCA-10 No. 05-3437, 2007 U.S.App. LEXIS 5453, on appeal from USDC-KSD, before USCJs Henry, Hollway, and McConnell, opinion by McConnell, filed 08 Mar 2007.
LONG STORY SHORT: Warrantless searches of parolees, unlike most searches, depend in part on state law for reasonableness, and when state law or policy requires parole officers to conduct such searches, regular police officers violate the Fourth Amendment if they do so themselves. Binding in CO, KS, NM, OK, UT, WY.
FACTS: Defendant, a known gang member, signed an agreement governing the conditions of his supervised release from a Kansas prison, allowing "a search by parole officer(s) of my person, residence, and any other person under my control." Defendant had been on parole for two years with only one curfew violation when he answered a 1:00am knock on his door to discover four Wichita PD officers and a representative of his day reporting center (a private contractor with Kansas DOC). An officer explained that they wanted to check his curfew compliance and the function of the monitoring bracelet on his ankle. Defendant invited them in, whereupon an officer said they would now search the house.
Defendant said they had no right to search, grew agitated, and said he had to tell his girlfriend, who was in bed. An officer followed him to ensure officer safety, and observed Defendant's girlfriend reach into the dresser. The officer entered the bedroom and Defendant's girlfriend left, so the officer began to search the room. A second officer came in and saw a handgun in plain view on the closet shelf, and more searching revealed body armor in the same closet and marijuana seeds and stems in the basement.
Defendant's day reporting center had chosen him and other parolees at random for a compliance check, but the same officers had gotten written consent from all other parolees they had searched that evening. No KDOC Special Enforcement Officer (SEO, parole officer) participated in the search of Defendant's home, contrary to KDOC's published internal policies for parolee searches.
PROCEDURE: The United States indicted Defendant in U.S. District Court for the District of Kansas for possession of a firearm while a convicted felon. Defendant moved to suppress all evidence from the search of his home, arguing that the search was warrantless and nonconsensual, and done by regular police instead of an SEO, contrary to state law and the Fourth Amendment. The trial court found that Defendant's agitation, his girlfriend's behavior, and Defendant's status as a felon and gang member added up to reasonable suspicion, which was the quantum of proof for police to search a parolee without a warrant or SEO, given a parolee's reduced expectation of privacy. MOTION TO SUPPRESS DENIED. Defendant appealed to the U.S. Court of Appeals for the Tenth Circuit.
DECISION: States need both to protect the public and rehabilitate parolees, justifying reduction in parolees' reasonable expectations of privacy compared to the general public. However, parolee searches must be related to parole issues, not a guise for general law enforcement. Furthermore, state parole laws create parolees' expectations when they agree to go on parole, marking one of the rare occasions when federal constitutional rights depend on state law. Consequently, states will be held to their laws of parole search, whether the parole agreement allows warrantless search by any peace officer (as in California) or whether a parole officer must conduct or at least direct the search (as in Kansas per KDOC's policy). What the police did to Defendant was general law enforcement, not anything pertaining to a special need of parole supervision, and they did not meet Defendant's reduced expectation of privacy.
Neither did Defendant's behavior (a reasonable person can be agitated when refusing to consent to an illegal search) or his girlfriend's behavior (a reasonable person upon waking will often reach into a nearby drawer for eyeglasses, clothing, etc., not necessarily a weapon) amount to reasonable suspicion that criminal activity was afoot. Defendant's criminal record was not enough either, since he had been on probation for two years with one minor violation. Defendant's girlfriend's behavior did not justify a protective sweep of her bedroom, and anyway, a protective sweep in the Tenth Circuit is only allowed as an incident to arrest. DENIAL OF SUPPRESSION REVERSED.
EDITORIAL: It's easy to criticize from a thousand miles away, but may I suggest (1) reading the dang search policy or state law--don't assume you can do what they can do in California--and (2) asking for permission, since it's a free country and people can and do consent to all kinds of crazy stuff, such as searches that will send them to prison for decades. Here in North Carolina, we learned from the Fourth Circuit just two weeks ago that our policy, very similar to Kansas', is entirely constitutional, so long as a probation or parole officer directs the warrantless search. Make friends with them!
Now we all know that this guy hadn't had his parole revoked yet only because he was such a competent criminal that he hadn't been caught. Maybe, maybe, this will scare him straight, or maybe his NEXT parole officer will watch him much more closely.
LONG STORY SHORT: Warrantless searches of parolees, unlike most searches, depend in part on state law for reasonableness, and when state law or policy requires parole officers to conduct such searches, regular police officers violate the Fourth Amendment if they do so themselves. Binding in CO, KS, NM, OK, UT, WY.
FACTS: Defendant, a known gang member, signed an agreement governing the conditions of his supervised release from a Kansas prison, allowing "a search by parole officer(s) of my person, residence, and any other person under my control." Defendant had been on parole for two years with only one curfew violation when he answered a 1:00am knock on his door to discover four Wichita PD officers and a representative of his day reporting center (a private contractor with Kansas DOC). An officer explained that they wanted to check his curfew compliance and the function of the monitoring bracelet on his ankle. Defendant invited them in, whereupon an officer said they would now search the house.
Defendant said they had no right to search, grew agitated, and said he had to tell his girlfriend, who was in bed. An officer followed him to ensure officer safety, and observed Defendant's girlfriend reach into the dresser. The officer entered the bedroom and Defendant's girlfriend left, so the officer began to search the room. A second officer came in and saw a handgun in plain view on the closet shelf, and more searching revealed body armor in the same closet and marijuana seeds and stems in the basement.
Defendant's day reporting center had chosen him and other parolees at random for a compliance check, but the same officers had gotten written consent from all other parolees they had searched that evening. No KDOC Special Enforcement Officer (SEO, parole officer) participated in the search of Defendant's home, contrary to KDOC's published internal policies for parolee searches.
PROCEDURE: The United States indicted Defendant in U.S. District Court for the District of Kansas for possession of a firearm while a convicted felon. Defendant moved to suppress all evidence from the search of his home, arguing that the search was warrantless and nonconsensual, and done by regular police instead of an SEO, contrary to state law and the Fourth Amendment. The trial court found that Defendant's agitation, his girlfriend's behavior, and Defendant's status as a felon and gang member added up to reasonable suspicion, which was the quantum of proof for police to search a parolee without a warrant or SEO, given a parolee's reduced expectation of privacy. MOTION TO SUPPRESS DENIED. Defendant appealed to the U.S. Court of Appeals for the Tenth Circuit.
DECISION: States need both to protect the public and rehabilitate parolees, justifying reduction in parolees' reasonable expectations of privacy compared to the general public. However, parolee searches must be related to parole issues, not a guise for general law enforcement. Furthermore, state parole laws create parolees' expectations when they agree to go on parole, marking one of the rare occasions when federal constitutional rights depend on state law. Consequently, states will be held to their laws of parole search, whether the parole agreement allows warrantless search by any peace officer (as in California) or whether a parole officer must conduct or at least direct the search (as in Kansas per KDOC's policy). What the police did to Defendant was general law enforcement, not anything pertaining to a special need of parole supervision, and they did not meet Defendant's reduced expectation of privacy.
Neither did Defendant's behavior (a reasonable person can be agitated when refusing to consent to an illegal search) or his girlfriend's behavior (a reasonable person upon waking will often reach into a nearby drawer for eyeglasses, clothing, etc., not necessarily a weapon) amount to reasonable suspicion that criminal activity was afoot. Defendant's criminal record was not enough either, since he had been on probation for two years with one minor violation. Defendant's girlfriend's behavior did not justify a protective sweep of her bedroom, and anyway, a protective sweep in the Tenth Circuit is only allowed as an incident to arrest. DENIAL OF SUPPRESSION REVERSED.
EDITORIAL: It's easy to criticize from a thousand miles away, but may I suggest (1) reading the dang search policy or state law--don't assume you can do what they can do in California--and (2) asking for permission, since it's a free country and people can and do consent to all kinds of crazy stuff, such as searches that will send them to prison for decades. Here in North Carolina, we learned from the Fourth Circuit just two weeks ago that our policy, very similar to Kansas', is entirely constitutional, so long as a probation or parole officer directs the warrantless search. Make friends with them!
Now we all know that this guy hadn't had his parole revoked yet only because he was such a competent criminal that he hadn't been caught. Maybe, maybe, this will scare him straight, or maybe his NEXT parole officer will watch him much more closely.
Friday, March 9, 2007
DC Circuit: "The Right Of The People To Keep And Bear Arms Shall Not Be Infringed!--This Means YOU, Fenty"
PARKER v. DISTRICT OF COLUMBIA, USCA-DC No. 04-7041, 2007 U.S.App. LEXIS 5519, http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf , on appeal from USDC-DCD, before USCJs Henderson and Griffith and SrUSCJ Silberman, opinion by Silberman, dissent by Henderson, filed 09 Mar 2007.
LONG STORY SHORT: The Second Amendment to the United States Constitution confers a right to keep and bear arms upon individual citizens, not just a collective right of states to keep organized militias. Binding in DC.
FACTS: Four District of Columbia residents, contrary to D.C. Code § 7-2502.02(a)(4), wanted to possess handguns in their homes, and, contrary to D.C. Code § 22-4504, wanted to carry handguns from one room to another inside their homes for the purpose of lawful self-defense. A fifth DC resident owned a registered shotgun and, contrary to D.C. Code § 7-2507.02, wanted to keep it assembled and without a trigger lock in the home for purposes of lawful self-defense. A sixth DC resident, who as a DC special police officer was allowed to carry a handgun on duty at the Federal Judicial Center, applied for a registration certificate to keep a handgun at home for lawful self-defense, which DC denied.
PROCEDURE: Plaintiffs sued DC in the U.S. District Court for the District of Columbia, seeking declaratory and injunctive relief per 28 U.S.C. §§ 2201 and 2202 and per 42 U.S.C. § 1983 for DC's violation of their Second Amendment right to keep and bear arms. The trial court ruled that the Second Amendment at most protects an individual's right to bear arms for service in the militia, not an individual right to keep and bear arms. COMPLAINT DISMISSED in all respects for failure to state a claim. Plaintiffs appealed to the U.S. Court of Appeals for the District of Columbia Circuit.
DECISION: A plaintiff asserting deprivation of constitutional rights must first have standing to bring a case in court, else there is no Article III case or controversy and no jurisdiction. The sixth plaintiff here, having applied for and been denied a handgun registration certificate, had standing to raise a Section 1983 challenge, and the case could proceed to its merits.
The Second Amendment to the U.S. Constitution reads in full: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed." The second comma divides the Second Amendment into two clauses, the first being a prefatory statement of civic purpose. Many courts, notably excepting the Fifth Circuit, have seized upon this prefatory clause to hold that the Second Amendment only guarantees a collective right to each State and the District of Columbia to raise and arm its own organized militia, and leaves the federal and state governments free to regulate or ban all private ownership and possession of arms unless somehow such laws were to interfere with militia preparedness. The DC Circuit held this strained interpretation, along with the variation of sophisticated collective rights without remedies, to be incorrect.
On the other hand, the Second Amendment's operative clause clearly confers an individual right to keep and bear arms, subject only to reasonable regulation. An extensive survey of the meanings, then and now, of "militia," "state," "the people," "keep," "bear," and "arms," as well as the different "the states respectively, or to the people" wording of the Tenth Amendment, militated firmly in favor of reading "the right of the people to keep and bear Arms shall not be infringed" to apply to individuals, just as most other constitutional rights do. Indeed, the Second Amendment did not make up a new right, but only codified the well-established right of free people to possess firearms suitable for protection, hunting, and militia use. Furthermore, just as the First Amendment applies not just to quill pens but also to computers and mass media, the Second Amendment applies not just to muzzleloading muskets but also to modern handguns such as the militia would use. Whatever the civic purpose of the Second Amendment, the right is broader than it.
As a federal district, not a state, the Bill of Rights directly applies to DC, rendering the question of whether the Fourteenth Amendment incorporates the Second Amendment and binds it upon the States inapplicable. At least some of DC's contrary arguments were frivolous, but all of them were wrong. The statutes of which Plaintiffs complained were unconstitutional in violation of the Second Amendment right to keep and bear arms for hunting and self-protection. REVERSED AND REMANDED with instructions to grant summary judgment to Plaintiffs.
The dissent agreed with the collective right interpretation of the Second Amendment and declared most of the majority opinion to be dicta, however well-written and informative it might be. However, the dissent's key holding was that DC is not a "State" within the meaning of the Second Amendment, making the Second Amendment inapplicable to DC.
EDITORIAL: Words aren't enough to express the relief and jubilation that the federal courts have at last learned to read the plain language of the Constitution. This opinion may mark the beginning of the end of the bench legislation era. Now you see why electing the right President, who will appoint the right judges and justices, is so important. Once again, the dissenting judge illustrates the astonishing ability of professional gun haters to disregard facts, logic, history, and plain words with a straight face. See you on the firing line tomorrow!
LONG STORY SHORT: The Second Amendment to the United States Constitution confers a right to keep and bear arms upon individual citizens, not just a collective right of states to keep organized militias. Binding in DC.
FACTS: Four District of Columbia residents, contrary to D.C. Code § 7-2502.02(a)(4), wanted to possess handguns in their homes, and, contrary to D.C. Code § 22-4504, wanted to carry handguns from one room to another inside their homes for the purpose of lawful self-defense. A fifth DC resident owned a registered shotgun and, contrary to D.C. Code § 7-2507.02, wanted to keep it assembled and without a trigger lock in the home for purposes of lawful self-defense. A sixth DC resident, who as a DC special police officer was allowed to carry a handgun on duty at the Federal Judicial Center, applied for a registration certificate to keep a handgun at home for lawful self-defense, which DC denied.
PROCEDURE: Plaintiffs sued DC in the U.S. District Court for the District of Columbia, seeking declaratory and injunctive relief per 28 U.S.C. §§ 2201 and 2202 and per 42 U.S.C. § 1983 for DC's violation of their Second Amendment right to keep and bear arms. The trial court ruled that the Second Amendment at most protects an individual's right to bear arms for service in the militia, not an individual right to keep and bear arms. COMPLAINT DISMISSED in all respects for failure to state a claim. Plaintiffs appealed to the U.S. Court of Appeals for the District of Columbia Circuit.
DECISION: A plaintiff asserting deprivation of constitutional rights must first have standing to bring a case in court, else there is no Article III case or controversy and no jurisdiction. The sixth plaintiff here, having applied for and been denied a handgun registration certificate, had standing to raise a Section 1983 challenge, and the case could proceed to its merits.
The Second Amendment to the U.S. Constitution reads in full: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed." The second comma divides the Second Amendment into two clauses, the first being a prefatory statement of civic purpose. Many courts, notably excepting the Fifth Circuit, have seized upon this prefatory clause to hold that the Second Amendment only guarantees a collective right to each State and the District of Columbia to raise and arm its own organized militia, and leaves the federal and state governments free to regulate or ban all private ownership and possession of arms unless somehow such laws were to interfere with militia preparedness. The DC Circuit held this strained interpretation, along with the variation of sophisticated collective rights without remedies, to be incorrect.
On the other hand, the Second Amendment's operative clause clearly confers an individual right to keep and bear arms, subject only to reasonable regulation. An extensive survey of the meanings, then and now, of "militia," "state," "the people," "keep," "bear," and "arms," as well as the different "the states respectively, or to the people" wording of the Tenth Amendment, militated firmly in favor of reading "the right of the people to keep and bear Arms shall not be infringed" to apply to individuals, just as most other constitutional rights do. Indeed, the Second Amendment did not make up a new right, but only codified the well-established right of free people to possess firearms suitable for protection, hunting, and militia use. Furthermore, just as the First Amendment applies not just to quill pens but also to computers and mass media, the Second Amendment applies not just to muzzleloading muskets but also to modern handguns such as the militia would use. Whatever the civic purpose of the Second Amendment, the right is broader than it.
As a federal district, not a state, the Bill of Rights directly applies to DC, rendering the question of whether the Fourteenth Amendment incorporates the Second Amendment and binds it upon the States inapplicable. At least some of DC's contrary arguments were frivolous, but all of them were wrong. The statutes of which Plaintiffs complained were unconstitutional in violation of the Second Amendment right to keep and bear arms for hunting and self-protection. REVERSED AND REMANDED with instructions to grant summary judgment to Plaintiffs.
The dissent agreed with the collective right interpretation of the Second Amendment and declared most of the majority opinion to be dicta, however well-written and informative it might be. However, the dissent's key holding was that DC is not a "State" within the meaning of the Second Amendment, making the Second Amendment inapplicable to DC.
EDITORIAL: Words aren't enough to express the relief and jubilation that the federal courts have at last learned to read the plain language of the Constitution. This opinion may mark the beginning of the end of the bench legislation era. Now you see why electing the right President, who will appoint the right judges and justices, is so important. Once again, the dissenting judge illustrates the astonishing ability of professional gun haters to disregard facts, logic, history, and plain words with a straight face. See you on the firing line tomorrow!
Wednesday, March 7, 2007
Trash Might Be Abandoned Property, "Butt" Not If The Detective Kicks It Off The Patio
STATE v. REED, N.C.App. No. COA06-400, http://www.aoc.state.nc.us/www/public/coa/opinions/2007/060400-1.htm , on appeal from Mecklenburg County Superior Court, before Judges Elmore, Hunter, and McCullough, opinion by Elmore, filed 06 Mar 2007.
LONG STORY SHORT: Defendant did not abandon his cigarette butt by tossing it into a trash pile on his own patio, rendering a detective's warrantless seizure of the butt unreasonable and requiring suppression of DNA results. Binding in NC unless reversed by the NC Supreme Court.
FACTS: Two detectives of the Charlotte-Mecklenburg PD visited Defendant at his apartment to investigate a recent burglary and sexual assault. Defendant voluntarily conversed with the detectives while they were all sitting on the patio shared by Defendant and three other tenants. Defendant smoked a cigarette and then tore apart the extinguished butt, mentioning that he watched CSI. Defendant smoked another cigarette while they all continued talking, and threw the still-smoking butt at a pile of trash on his patio. It bounced off and one of the detectives kicked it off the patio, where it landed in the grassy common area. As soon as Defendant went back inside the house, the detective snatched up the butt and took it in for DNA testing. Defendant's DNA matched that of a stain on the victim's shirt. At that apartment complex, tenants were individually responsible for taking their trash to a common dumpster.
PROCEDURE: North Carolina indicted Defendant in Mecklenburg County Superior Court for first-degree burglary, second-degree sexual offense, and common-law robbery (aka "strong-arm robbery"). Defendant moved to suppress the cigarette butt and DNA evidence as the fruit of an unreasonable warrantless and nonconsensual search in violation of the Fourth Amendment. MOTION TO SUPPRESS DENIED. North Carolina introduced the DNA evidence at trial and the jury convicted Defendant of burglary and sexual offense, acquitting him of robbery. Defendant appealed to the Court of Appeals of North Carolina, arguing that the trial court should have suppressed the DNA evidence.
DECISION: One of the few exceptions to the warrant requirement is a search and seizure of abandoned property. Trash placed outside the curtilage and ready for curbside pickup is pretty clearly "abandoned." Less so is trash left in an area where a person has a reasonable expectation of privacy. Here, the patio was part of Defendant's home even if three other tenants shared it, and he had a reasonable expectation of privacy. Precedent holding trash to be abandoned nearly always depended on the trash in question being at least placed where sanitation workers regularly picked it up, and preferably already in the truck, when police searched or seized it. Defendant had no such service at his apartment.
Though the detective picked up the butt after it landed in the common area outside Defendant's curtilage, Defendant did not throw it there. Defendant aimed for the trash pile and even though he missed it, the butt came to rest on his patio, where he had a reasonable expectation of privacy. Only then did the detective kick the butt out of the curtilage and furtively pick it up when he knew Defendant was not looking. This raises an inference that the detective knew Defendant would not consent to seizure of the butt and that seizure of anything still on the patio would be illegal. Property is not abandoned if the police move it from private to public areas. Defendant's constitutional right against unreasonable search and seizure was violated and the evidence should have been suppressed. NEW TRIAL.
EDITORIAL: This is a classic case of a criminal getting off on a technicality--except that it's not a technicality to be free from unreasonable search and seizure, it's part of the Constitution, and the only way to enforce this right is to have something bad happen to the state when they break it. And this criminal might not get off in the end. Now that Char-Meck KNOWS who did it, there are other ways of proving identity, such as the victim's testimony. That's how prosecutors worked for millions of years before DNA testing was around to help them. Hopefully, this guy will still go down, and we've learned a relatively painless lesson in when trash isn't all that trashy.
I don't blame the detectives for trying to help a dead cigarette get to where it needs to be, "butt" now that we know you can't do it that way, next time you can ask to keep the butt ("if you didn't do it, this will prove it for sure"). Based on the guy's CSI comment, you could also try for a search warrant, since he wouldn't have said that without some kind of guilty conscience. You can certainly follow the guy around until he leaves some legitimate trash. Come to think of it, Char-Meck can do that right now. If he's still in jail, it's even easier. Yeah, he'll go down.
A "Mention in Despatches" to Daniel J. Clifton for just-right appellate advocacy. He raised only one issue, unreasonable seizure, and argued it well, instead of drowning everybody in paper trying to argue eighteen crummy issues. And shazam, he won a unanimous reversal. Could be some relationship between good form and good result.
LONG STORY SHORT: Defendant did not abandon his cigarette butt by tossing it into a trash pile on his own patio, rendering a detective's warrantless seizure of the butt unreasonable and requiring suppression of DNA results. Binding in NC unless reversed by the NC Supreme Court.
FACTS: Two detectives of the Charlotte-Mecklenburg PD visited Defendant at his apartment to investigate a recent burglary and sexual assault. Defendant voluntarily conversed with the detectives while they were all sitting on the patio shared by Defendant and three other tenants. Defendant smoked a cigarette and then tore apart the extinguished butt, mentioning that he watched CSI. Defendant smoked another cigarette while they all continued talking, and threw the still-smoking butt at a pile of trash on his patio. It bounced off and one of the detectives kicked it off the patio, where it landed in the grassy common area. As soon as Defendant went back inside the house, the detective snatched up the butt and took it in for DNA testing. Defendant's DNA matched that of a stain on the victim's shirt. At that apartment complex, tenants were individually responsible for taking their trash to a common dumpster.
PROCEDURE: North Carolina indicted Defendant in Mecklenburg County Superior Court for first-degree burglary, second-degree sexual offense, and common-law robbery (aka "strong-arm robbery"). Defendant moved to suppress the cigarette butt and DNA evidence as the fruit of an unreasonable warrantless and nonconsensual search in violation of the Fourth Amendment. MOTION TO SUPPRESS DENIED. North Carolina introduced the DNA evidence at trial and the jury convicted Defendant of burglary and sexual offense, acquitting him of robbery. Defendant appealed to the Court of Appeals of North Carolina, arguing that the trial court should have suppressed the DNA evidence.
DECISION: One of the few exceptions to the warrant requirement is a search and seizure of abandoned property. Trash placed outside the curtilage and ready for curbside pickup is pretty clearly "abandoned." Less so is trash left in an area where a person has a reasonable expectation of privacy. Here, the patio was part of Defendant's home even if three other tenants shared it, and he had a reasonable expectation of privacy. Precedent holding trash to be abandoned nearly always depended on the trash in question being at least placed where sanitation workers regularly picked it up, and preferably already in the truck, when police searched or seized it. Defendant had no such service at his apartment.
Though the detective picked up the butt after it landed in the common area outside Defendant's curtilage, Defendant did not throw it there. Defendant aimed for the trash pile and even though he missed it, the butt came to rest on his patio, where he had a reasonable expectation of privacy. Only then did the detective kick the butt out of the curtilage and furtively pick it up when he knew Defendant was not looking. This raises an inference that the detective knew Defendant would not consent to seizure of the butt and that seizure of anything still on the patio would be illegal. Property is not abandoned if the police move it from private to public areas. Defendant's constitutional right against unreasonable search and seizure was violated and the evidence should have been suppressed. NEW TRIAL.
EDITORIAL: This is a classic case of a criminal getting off on a technicality--except that it's not a technicality to be free from unreasonable search and seizure, it's part of the Constitution, and the only way to enforce this right is to have something bad happen to the state when they break it. And this criminal might not get off in the end. Now that Char-Meck KNOWS who did it, there are other ways of proving identity, such as the victim's testimony. That's how prosecutors worked for millions of years before DNA testing was around to help them. Hopefully, this guy will still go down, and we've learned a relatively painless lesson in when trash isn't all that trashy.
I don't blame the detectives for trying to help a dead cigarette get to where it needs to be, "butt" now that we know you can't do it that way, next time you can ask to keep the butt ("if you didn't do it, this will prove it for sure"). Based on the guy's CSI comment, you could also try for a search warrant, since he wouldn't have said that without some kind of guilty conscience. You can certainly follow the guy around until he leaves some legitimate trash. Come to think of it, Char-Meck can do that right now. If he's still in jail, it's even easier. Yeah, he'll go down.
A "Mention in Despatches" to Daniel J. Clifton for just-right appellate advocacy. He raised only one issue, unreasonable seizure, and argued it well, instead of drowning everybody in paper trying to argue eighteen crummy issues. And shazam, he won a unanimous reversal. Could be some relationship between good form and good result.
Thursday, March 1, 2007
Alford Plea To Resisting Arrest Might Not Prevent Suit For Excessive Force (dang)
ZINKAND v. BROWN, USCA-4 No. 05-2170, on appeal from USDC-MDD, before USCJs Widener, Williams, and Traxler, opinion by Traxler, dissent by Widener, filed 01 Mar 2007.
LONG STORY SHORT: Because Plaintiff took an Alford plea in which he did not admit to resisting arrest, Defendants could not assert judicial estoppel against him when he sued them for injuries sustained during his arrest. Binding in MD, NC, SC, VA, WV.
FACTS: Defendant, a detective with the Anne Arundel County, Maryland police, was part of a surveillance team watching an undercover drug transaction in a parking lot. Plaintiff drove up and another subject who had just received drug purchase money from the UC walked over to Plaintiff's car. Surveillance officers saw Plaintiff, whom they believed to be the stash man, pass an object to the subject, whereupon a number of officers ran up to Plaintiff's car. Defendant forcibly removed Plaintiff from his car and handcuffed him. In the process, Plaintiff hit his head, sustaining injury.
PROCEDURE: Maryland charged Plaintiff in state court with numerous Maryland drug offenses and resisting arrest. In return for dropping all drug charges and requesting the trial court for probation before judgment (Maryland law allows that), Plaintiff was allowed to tender an Alford plea to resisting arrest, in which he did not admit that he was guilty of resisting arrest but deemed it in his best interest to plead to the same. The trial court accepted Plaintiff's Alford plea and put him on probation before judgment.
A week later, Plaintiff sued Defendant, other officers, and Anne Arundel County in U.S. District Court for the District of Maryland for use of excessive force. After discovery, all Defendants moved for summary judgment, attaching among other papers Plaintiff's hospital records immediately after his arrest. Apparently because he did not want to continue with the case, Plaintiff's counsel did not file a response to the summary judgment motion. The trial court ruled, based only on the defense's evidence, that Defendant was the only one who touched Plaintiff, and Defendant's use of force, which Plaintiff precipitated, was fully justified and resulted only in a minor laceration. SUMMARY JUDGMENT GRANTED to all defendants.
Six days after that order, Plaintiff filed a pro se motion for reconsideration and for time to find new counsel, attaching police reports and other documents. When he was able to retain a new firm, they filed a more complete motion to alter or amend the judgment, attaching among other items a statement from Plaintiff's physician that Plaintiff had two herniated discs probably attributable to the use of force during his arrest. Defendants replied to this motion and the trial court held a Rule 59(e) hearing.
All parties and the trial court agreed that Plaintiff's forecast of medical evidence established a genuine issue of material fact, which normally would preclude summary judgment. However, the trial court looked to Plaintiff's original Alford plea, and ruled that even though Plaintiff had not acted in subjective bad faith or tried to deceive anyone, he was judicially estopped from claiming excessive force. MOTION TO ALTER OR AMEND DENIED. Plaintiff appealed to the U.S. Court of Appeals for the Fourth Circuit.
DECISION: Rule 59(e) allows motions to alter or amend judgments, essentially allowing trial courts to fix their own errors, but does not specify what grounds may justify such relief. Fourth Circuit precedent has established that one ground can be the discovery of new evidence not available at trial, and if the trial court has discretion to take new evidence if the moving party can justify why it did not present the evidence before. Defendants here did not object to the new evidence, ending the Fourth Circuit's review of that issue.
Judicial estoppel is only applicable to issues of fact, and has three elements: (1) the party tries to take a factual stand inconsistent with what it took in prior litigation; (2) the prior court must have accepted the prior position; and (3) the party intentionally misled the court to gain unfair advantage. This last bad faith element is the dispositive one. Here, the trial court expressly ruled that Plaintiff did not act in bad faith, and since Plaintiff did not plead straight up to resisting arrest, his Alford plea could not have been a prior inconsistent factual stand. The trial court made a clear error of law, in light of which its denial of the motion to alter or amend was an abuse of discretion. REVERSED AND REMANDED for further proceedings not inconsistent.
The dissent first focused on the trial court's original finding that Plaintiff suffered only a minor laceration, but also would have affirmed the trial court because Plaintiff precipitated the use of force and Defendant was entitled to qualified immunity. Lastly, the majority opinion could be read as an open door for Alford pleaders to sue the police, which they could not do if they admitted guilt.
EDITORIAL: I had to agree with the majority--right up until that last sentence of the dissent. Judge Widener doth speaketh most rightly. Now, all you have to do is pound on a cop, get a justified pounding in return, stand before the judge and say "I didn't do NOTHIN but I plead no contest," then sue away. Alford, by the way, is North Carolina v. Alford, 400 U.S. 25 (1970), where the Supremes established the right to consent to a judgment of guilty but not admit guilt, usually in the form of a nolo contendere or no contest plea, and can be useful as a last resort in, say, an iffy self-defense shooting to save face while limiting one's loss to a few years for manslaughter instead of going bye-bye for murder one.
I almost said to myself "so why didn't you try res judicata?" which is using a prior judgment to prevent your opponent from getting a later judgment that would contradict it. The answer was in the beginning of the opinion, which says that under Maryland law, there was no judgment yet! just probation. Maryland lawyers can correct me if I need it. (North Carolina has a "prayer for judgment continued," which is even better--you plead, pay costs, and BOTH the conviction AND the sentence are delayed to give you a chance to act right and get rid of the case.) Although I'd like to know more of the details, I would tend to take the police side in this case, because those who resist can get hurt even if the arresting officer is trying really hard not to permanently injure the resister. And I have to commend the Fourth for bending over backwards to be fair to the guy.
But for sure, the lawyers on the back cover of the phone book will use this opinion to open up a six-pack of dubious Section 1983 whoop-ass when prosecutors drop the ball and don't push for straight-up guilty pleas in resisting arrest cases. Furthermore, it's only common sense that even an Alford plea means that legally speaking, YOU DID IT and have to live with all the consequences. Yet this opinion says you get a do-over in civil court if you feel like suing the police. It rewards crooks for not accepting any responsibility for what they did. I hardly ever call for en banc reversals, but I think this opinion is a prime candidate for one.
LONG STORY SHORT: Because Plaintiff took an Alford plea in which he did not admit to resisting arrest, Defendants could not assert judicial estoppel against him when he sued them for injuries sustained during his arrest. Binding in MD, NC, SC, VA, WV.
FACTS: Defendant, a detective with the Anne Arundel County, Maryland police, was part of a surveillance team watching an undercover drug transaction in a parking lot. Plaintiff drove up and another subject who had just received drug purchase money from the UC walked over to Plaintiff's car. Surveillance officers saw Plaintiff, whom they believed to be the stash man, pass an object to the subject, whereupon a number of officers ran up to Plaintiff's car. Defendant forcibly removed Plaintiff from his car and handcuffed him. In the process, Plaintiff hit his head, sustaining injury.
PROCEDURE: Maryland charged Plaintiff in state court with numerous Maryland drug offenses and resisting arrest. In return for dropping all drug charges and requesting the trial court for probation before judgment (Maryland law allows that), Plaintiff was allowed to tender an Alford plea to resisting arrest, in which he did not admit that he was guilty of resisting arrest but deemed it in his best interest to plead to the same. The trial court accepted Plaintiff's Alford plea and put him on probation before judgment.
A week later, Plaintiff sued Defendant, other officers, and Anne Arundel County in U.S. District Court for the District of Maryland for use of excessive force. After discovery, all Defendants moved for summary judgment, attaching among other papers Plaintiff's hospital records immediately after his arrest. Apparently because he did not want to continue with the case, Plaintiff's counsel did not file a response to the summary judgment motion. The trial court ruled, based only on the defense's evidence, that Defendant was the only one who touched Plaintiff, and Defendant's use of force, which Plaintiff precipitated, was fully justified and resulted only in a minor laceration. SUMMARY JUDGMENT GRANTED to all defendants.
Six days after that order, Plaintiff filed a pro se motion for reconsideration and for time to find new counsel, attaching police reports and other documents. When he was able to retain a new firm, they filed a more complete motion to alter or amend the judgment, attaching among other items a statement from Plaintiff's physician that Plaintiff had two herniated discs probably attributable to the use of force during his arrest. Defendants replied to this motion and the trial court held a Rule 59(e) hearing.
All parties and the trial court agreed that Plaintiff's forecast of medical evidence established a genuine issue of material fact, which normally would preclude summary judgment. However, the trial court looked to Plaintiff's original Alford plea, and ruled that even though Plaintiff had not acted in subjective bad faith or tried to deceive anyone, he was judicially estopped from claiming excessive force. MOTION TO ALTER OR AMEND DENIED. Plaintiff appealed to the U.S. Court of Appeals for the Fourth Circuit.
DECISION: Rule 59(e) allows motions to alter or amend judgments, essentially allowing trial courts to fix their own errors, but does not specify what grounds may justify such relief. Fourth Circuit precedent has established that one ground can be the discovery of new evidence not available at trial, and if the trial court has discretion to take new evidence if the moving party can justify why it did not present the evidence before. Defendants here did not object to the new evidence, ending the Fourth Circuit's review of that issue.
Judicial estoppel is only applicable to issues of fact, and has three elements: (1) the party tries to take a factual stand inconsistent with what it took in prior litigation; (2) the prior court must have accepted the prior position; and (3) the party intentionally misled the court to gain unfair advantage. This last bad faith element is the dispositive one. Here, the trial court expressly ruled that Plaintiff did not act in bad faith, and since Plaintiff did not plead straight up to resisting arrest, his Alford plea could not have been a prior inconsistent factual stand. The trial court made a clear error of law, in light of which its denial of the motion to alter or amend was an abuse of discretion. REVERSED AND REMANDED for further proceedings not inconsistent.
The dissent first focused on the trial court's original finding that Plaintiff suffered only a minor laceration, but also would have affirmed the trial court because Plaintiff precipitated the use of force and Defendant was entitled to qualified immunity. Lastly, the majority opinion could be read as an open door for Alford pleaders to sue the police, which they could not do if they admitted guilt.
EDITORIAL: I had to agree with the majority--right up until that last sentence of the dissent. Judge Widener doth speaketh most rightly. Now, all you have to do is pound on a cop, get a justified pounding in return, stand before the judge and say "I didn't do NOTHIN but I plead no contest," then sue away. Alford, by the way, is North Carolina v. Alford, 400 U.S. 25 (1970), where the Supremes established the right to consent to a judgment of guilty but not admit guilt, usually in the form of a nolo contendere or no contest plea, and can be useful as a last resort in, say, an iffy self-defense shooting to save face while limiting one's loss to a few years for manslaughter instead of going bye-bye for murder one.
I almost said to myself "so why didn't you try res judicata?" which is using a prior judgment to prevent your opponent from getting a later judgment that would contradict it. The answer was in the beginning of the opinion, which says that under Maryland law, there was no judgment yet! just probation. Maryland lawyers can correct me if I need it. (North Carolina has a "prayer for judgment continued," which is even better--you plead, pay costs, and BOTH the conviction AND the sentence are delayed to give you a chance to act right and get rid of the case.) Although I'd like to know more of the details, I would tend to take the police side in this case, because those who resist can get hurt even if the arresting officer is trying really hard not to permanently injure the resister. And I have to commend the Fourth for bending over backwards to be fair to the guy.
But for sure, the lawyers on the back cover of the phone book will use this opinion to open up a six-pack of dubious Section 1983 whoop-ass when prosecutors drop the ball and don't push for straight-up guilty pleas in resisting arrest cases. Furthermore, it's only common sense that even an Alford plea means that legally speaking, YOU DID IT and have to live with all the consequences. Yet this opinion says you get a do-over in civil court if you feel like suing the police. It rewards crooks for not accepting any responsibility for what they did. I hardly ever call for en banc reversals, but I think this opinion is a prime candidate for one.
Monday, February 26, 2007
North Carolina's Law Allowing Warrantless Searches of Probationers is VERY Constitutional
UNITED STATES v. MIDGETTE, USCA-4 No. 05-4765, http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/054765.P.pdf , on appeal from USDC-NCED, before USCJs Niemeyer, Traxler, and Shedd, opinion by Niemyer, filed 26 Feb 2007.
LONG STORY SHORT: North Carolina statute allowing probation officers to search their probationers without a warrant is reasonable under the Fourth Amendment, and probation officers may request police assistance in such searches. Binding in MD, NC, SC, VA, WV.
FACTS: Defendant pleaded guilty to North Carolina state offenses and accepted suspended sentences and supervised probation. The judge at his sentencing ordered orally and in writing that a special condition of Defendant's probation was that he "submit at reasonable times to warrantless searches by a probation officer of the defendant's person, and of the defendant's vehicle and premises while the defendant is present, for the purposes which are reasonably related to the defendant's probation supervision." Two months later, SGT Wilcutt of the New Bern Police Department told Defendant's probation officer, PO Edwards, that he knew Defendant well and that Defendant had a reputation for carrying firearms, and that Defendant had retrieved firearms from the New Bern PD eight months before.
At Defendant's next regular meeting with PO Edwards, two New Bern officers searched Defendant without finding any contraband, then searched Defendant's vehicle, finding a pistol magazine loaded with ten live rounds of .40-caliber ammunition. PO Edwards then took Defendant and the officers over to Defendant's house, where she directed the officers to search for any other contraband. The officers found two shotguns and a pistol, all loaded, and 59.1g of marijuana. One of the shotguns had a barrel less than 18 inches long. The officers arrested Defendant on the spot.
PROCEDURE: The United States indicted Defendant for possessing firearms while a convicted felon, possession of an unregistered firearm (short-barreled shotguns are subject to registration and taxation under the National Firearms Act), and possession of marijuana. Defendant moved to suppress all the contraband, on grounds that only probation officers are allowed to conduct warrantless searches of probationers under NC law, and that no reasonable suspicion supported the search. A U.S. Magistrate Judge of the Eastern District of North Carolina heard the motion and recommended that it be denied. Defendant objected to the report, but not on grounds that the NC statute was unconstitutional or that no reasonable suspicion supported the search. The assigned U.S. District Judge overruled him and adopted the USMJ's report. MOTION TO SUPPRESS DENIED. Defendant pleaded guilty and received a 46-month sentence, on condition that he could appeal the denial of suppression to the U.S. Court of Appeals for the Fourth Circuit. On appeal, Defendant argued that the NC statute violated the Fourth Amendment and that no reasonable suspicion supported the search of Defendant's vehicle and house.
DECISION: Objections to a magistrate judge's report must be specific; a general objection will not suffice, because the district judge needs to have reasonable notice of what issues are not satisfactory, and the true grounds for such objections. Parties may not appeal issues in a report without specifically and timely objecting to them. Since Defendant did not tell the district court that he objected to the constitutionality of the warrantless serach statute or that no reasonable suspicion supported the search, he waived his right to appeal on those issues.
However, Defendant's arguments were meritless anyway. NC needs to be able to supervise probationers' compliance with their conditions of probation, both to promote probationers' rehabilitation and to protect the public. Though the statute did not require "individualized suspicion" as do some other states' laws that have survived constitutional review, the state's special need to supervise probationers justifies the reduced privacy expectations and rights of probationers. Searches conforming to NC's probation statutes are eminently reasonable under the Fourth Amendment.
In this case, reasonable suspicion, that is, a particularized and objective basis for suspecting criminal activity, was present because SGT Wilcutt was an experienced, knowledgeable, and trustworthy officer that PO Edwards was entitled to rely on, just as a court would have. Other courts have upheld searches of probationers without any suspicion at all. Though the statute requires probation officers to authorize and direct warrantless searches of probationers, regular police officers may suggest them in the first place, and may assist in the actual search. Probationers can be very dangerous people and probation officers need all the help they can get. DENIAL OF SUPPRESSION AFFIRMED.
EDITORIAL: Good decision, but since the Fourth Circuit started out by observing that this guy wasn't supposed to be appealing those issues at all, the next probationer who gets his house tossed is going to argue that this apparent papal blessing of NCGS § 15A-1343(b1)(7) really means nothing. The first thing to remember about a successful appeal is that it starts in the trial court. If you don't say something when it happens, then appellate courts figure it couldn't have been as bad as all that. At best/worst, appellate courts will say that if you didn't object at trial because you didn't want to look like a jerk in front of the jury, then doom on you if the jury recognized you as a jerk anyway.
This is yet another reminder to keep on the good side of probation officers no matter what side of the law you're on. For regular officers, taking a PO along can be a ticket to busting somebody you can't quite get a warrant on. Just make sure the PO is the one to decide on the search and asks you for help.
LONG STORY SHORT: North Carolina statute allowing probation officers to search their probationers without a warrant is reasonable under the Fourth Amendment, and probation officers may request police assistance in such searches. Binding in MD, NC, SC, VA, WV.
FACTS: Defendant pleaded guilty to North Carolina state offenses and accepted suspended sentences and supervised probation. The judge at his sentencing ordered orally and in writing that a special condition of Defendant's probation was that he "submit at reasonable times to warrantless searches by a probation officer of the defendant's person, and of the defendant's vehicle and premises while the defendant is present, for the purposes which are reasonably related to the defendant's probation supervision." Two months later, SGT Wilcutt of the New Bern Police Department told Defendant's probation officer, PO Edwards, that he knew Defendant well and that Defendant had a reputation for carrying firearms, and that Defendant had retrieved firearms from the New Bern PD eight months before.
At Defendant's next regular meeting with PO Edwards, two New Bern officers searched Defendant without finding any contraband, then searched Defendant's vehicle, finding a pistol magazine loaded with ten live rounds of .40-caliber ammunition. PO Edwards then took Defendant and the officers over to Defendant's house, where she directed the officers to search for any other contraband. The officers found two shotguns and a pistol, all loaded, and 59.1g of marijuana. One of the shotguns had a barrel less than 18 inches long. The officers arrested Defendant on the spot.
PROCEDURE: The United States indicted Defendant for possessing firearms while a convicted felon, possession of an unregistered firearm (short-barreled shotguns are subject to registration and taxation under the National Firearms Act), and possession of marijuana. Defendant moved to suppress all the contraband, on grounds that only probation officers are allowed to conduct warrantless searches of probationers under NC law, and that no reasonable suspicion supported the search. A U.S. Magistrate Judge of the Eastern District of North Carolina heard the motion and recommended that it be denied. Defendant objected to the report, but not on grounds that the NC statute was unconstitutional or that no reasonable suspicion supported the search. The assigned U.S. District Judge overruled him and adopted the USMJ's report. MOTION TO SUPPRESS DENIED. Defendant pleaded guilty and received a 46-month sentence, on condition that he could appeal the denial of suppression to the U.S. Court of Appeals for the Fourth Circuit. On appeal, Defendant argued that the NC statute violated the Fourth Amendment and that no reasonable suspicion supported the search of Defendant's vehicle and house.
DECISION: Objections to a magistrate judge's report must be specific; a general objection will not suffice, because the district judge needs to have reasonable notice of what issues are not satisfactory, and the true grounds for such objections. Parties may not appeal issues in a report without specifically and timely objecting to them. Since Defendant did not tell the district court that he objected to the constitutionality of the warrantless serach statute or that no reasonable suspicion supported the search, he waived his right to appeal on those issues.
However, Defendant's arguments were meritless anyway. NC needs to be able to supervise probationers' compliance with their conditions of probation, both to promote probationers' rehabilitation and to protect the public. Though the statute did not require "individualized suspicion" as do some other states' laws that have survived constitutional review, the state's special need to supervise probationers justifies the reduced privacy expectations and rights of probationers. Searches conforming to NC's probation statutes are eminently reasonable under the Fourth Amendment.
In this case, reasonable suspicion, that is, a particularized and objective basis for suspecting criminal activity, was present because SGT Wilcutt was an experienced, knowledgeable, and trustworthy officer that PO Edwards was entitled to rely on, just as a court would have. Other courts have upheld searches of probationers without any suspicion at all. Though the statute requires probation officers to authorize and direct warrantless searches of probationers, regular police officers may suggest them in the first place, and may assist in the actual search. Probationers can be very dangerous people and probation officers need all the help they can get. DENIAL OF SUPPRESSION AFFIRMED.
EDITORIAL: Good decision, but since the Fourth Circuit started out by observing that this guy wasn't supposed to be appealing those issues at all, the next probationer who gets his house tossed is going to argue that this apparent papal blessing of NCGS § 15A-1343(b1)(7) really means nothing. The first thing to remember about a successful appeal is that it starts in the trial court. If you don't say something when it happens, then appellate courts figure it couldn't have been as bad as all that. At best/worst, appellate courts will say that if you didn't object at trial because you didn't want to look like a jerk in front of the jury, then doom on you if the jury recognized you as a jerk anyway.
This is yet another reminder to keep on the good side of probation officers no matter what side of the law you're on. For regular officers, taking a PO along can be a ticket to busting somebody you can't quite get a warrant on. Just make sure the PO is the one to decide on the search and asks you for help.
Wednesday, February 14, 2007
If You Barricade Yourself, Burn Your House, And Raise A Rifle, Then Getting Shot Is YOUR Fault
LIVERMORE v. LUBELAN, USCA-6 No. 06-1465, 2007 U.S.App. LEXIS 2594, on appeal from USDC-MIWD, before USCJ-6 Batchelder and Griffin and USDJ-TNED Phillips, opinion by Griffin, filed 07 Feb 2007.
LONG STORY SHORT: The proximate cause of the subject's death was his threatening posture with a rifle after he had exhibited very violent behavior, and both the lieutenant who commanded the raid on his house and the sergeant who shot the subject were entitled to qualified immunity. Binding in KY, MI, OH, TN.
FACTS: Cass County, Michigan residents Crosslin and Rohm advocated marijuana production and use, and practiced what they preached at Rainbow Farms Compound, which Crosslin owned. On 31 Aug 2001, Rohm blew off a required court appearance, and he and Crosslin set fire to some outbuildings at Rainbow Farms, inspiring the Cass County Sheriff's Department to surround the premises and call for help from the Michigan State Police Emergency Services Team. Crosslin, visibly armed, refused officers entry and later that day fired at least one bullet into a news helicopter. The standoff continued for days.
On 03 Sep 2001, FBI agents found Crosslin while he was returning from a burglary, and had to shoot and kill him in self-defense. On 04 Sep, Rohm agreed by phone with MSPEST negotiators to surrender if he could talk with his son, but instead Rohm set fire to his house, took up a rifle, and hid between two trees in his backyard. MSPEST had received word that the house was rigged with explosives. A Light Armored Vehicle commanded by Lieutenant Ellsworth of MSPEST approached and by loudspeaker he ordered Rohm to surrender. To use their radios, the two MSPEST sergeants in the LAV with Lieutenant Ellsworth had to sit partially exposed in the open roof hatches, but still could not see Rohm in the early daylight and smoke.
MSPEST sharpshooter Sergeant Lubelan, 150 yards away in a concealed observation position, could see Rohm and his rifle, and testified that Rohm was in a left-handed firing position, appearing to track the LAV and preparing to shoot at the exposed officers. Sergeant Lubelan testified that he fired two shots at Rohm's back. However, autopsy and reconstruction showed that the first and fatal shot passed through Rohm's rifle stock and into his chest. The sergeants in the LAV testified that when they learned Rohm had been shot, they were back inside the LAV, but one sergeant testified that he was still exposed at the exact time Rohm was shot.
PROCEDURE: Plaintiff, Rohm's mother, sued Sergeant Lubelan and Lieutenant Ellsworth in U.S. District Court for the Western District of Michigan per 42 U.S.C. § 1983 for violating Rohm's Fourth Amendment right to be free from unreasonable seizure, and for liability under Michigan state law. Plaintiff claimed that Lieutenant Ellsworth had already ordered his sharpshooters to fire at Rohm if he aimed a rifle at the LAV, and presented expert testimony that police acted deliberately or recklessly to provoke Rohm's actions. After discovery, Defendants moved for summary judgment on grounds that as a matter of law they had not acted unreasonably, and were entitled to qualified immunity. The trial court ruled that the LAV sergeants' testimony that they were inside the LAV when they learned of the shooting, plus Rohm's stepfather's testimony that Rohm always fired rifles right-handed, together with Plaintiff's police practices expert's testimony, established a genuine issue of material fact as to both qualified immunity and Michigan state law liability. SUMMARY JUDGMENT DENIED in all respects. Defendants appealed immediately to the U.S. Court of Appeals for the Sixth Circuit.
DECISION: If any material facts affecting qualified immunity are still in dispute, no appellate court has jurisdiction. However, the Sixth Circuit held that even taking the facts in the light most favorable to Plaintiff, only issues of law remained, establishing appellate jurisdiction. Under these facts, the police did not make the trouble any more than any responding officer does when presented with lawbreaking or violence; in fact, police have a duty to intervene.
Whether or not Lieutenant Ellsworth ordered anyone to fire at Rohm if he raised a weapon at the LAV was immaterial. The two shots that Sergeant Lubelin fired at Rohm constituted the only "seizure" under the Fourth Amendment, and courts may only look at the split-second judgments of the officer who made the actual seizure. Under these facts, a supervisor such as Lieutenant Ellsworth could not be liable, and he was entitled to summary judgment.
Beyond dispute, Rohm was holding his rifle when he was shot, as evidenced by the bullet hole in it. Even if Sergeant Lubelin did not see Rohm point his rifle toward the LAV, a reasonable officer in Sergeant Lubelin's position had probable cause to believe that Rohm was about to do deadly harm. Rohm's violent behavior and the inherent dangerousness of a rifleman close to the LAV were justification for Sergeant Lubelin's well-aimed shots, and he was entitled to summary judgment. Furthermore, under Michigan law, Rohm's own behavior, not any police provocation or recklessness, proximately caused his own death, meaning that all officers were entitled to summary judgment. DENIAL OF SUMMARY JUDGMENT REVERSED.
EDITORIAL: Two great big thumbs up to the Sixth Circuit and Michigan Assistant Attorney General Margaret A. Nelson for a splendid job. Now that's what I call world-class appellate advocacy. I feel for the guy's mother, but nobody gets to raise a hand, much less a deadly weapon, to the law without severe consequence. Bravo Zulu to Sergeant Lubelin for fulfilling the police sharpshooting mission perfectly; righteous shots that hit only the guilty person, stop the fight, and save innocent lives.
LONG STORY SHORT: The proximate cause of the subject's death was his threatening posture with a rifle after he had exhibited very violent behavior, and both the lieutenant who commanded the raid on his house and the sergeant who shot the subject were entitled to qualified immunity. Binding in KY, MI, OH, TN.
FACTS: Cass County, Michigan residents Crosslin and Rohm advocated marijuana production and use, and practiced what they preached at Rainbow Farms Compound, which Crosslin owned. On 31 Aug 2001, Rohm blew off a required court appearance, and he and Crosslin set fire to some outbuildings at Rainbow Farms, inspiring the Cass County Sheriff's Department to surround the premises and call for help from the Michigan State Police Emergency Services Team. Crosslin, visibly armed, refused officers entry and later that day fired at least one bullet into a news helicopter. The standoff continued for days.
On 03 Sep 2001, FBI agents found Crosslin while he was returning from a burglary, and had to shoot and kill him in self-defense. On 04 Sep, Rohm agreed by phone with MSPEST negotiators to surrender if he could talk with his son, but instead Rohm set fire to his house, took up a rifle, and hid between two trees in his backyard. MSPEST had received word that the house was rigged with explosives. A Light Armored Vehicle commanded by Lieutenant Ellsworth of MSPEST approached and by loudspeaker he ordered Rohm to surrender. To use their radios, the two MSPEST sergeants in the LAV with Lieutenant Ellsworth had to sit partially exposed in the open roof hatches, but still could not see Rohm in the early daylight and smoke.
MSPEST sharpshooter Sergeant Lubelan, 150 yards away in a concealed observation position, could see Rohm and his rifle, and testified that Rohm was in a left-handed firing position, appearing to track the LAV and preparing to shoot at the exposed officers. Sergeant Lubelan testified that he fired two shots at Rohm's back. However, autopsy and reconstruction showed that the first and fatal shot passed through Rohm's rifle stock and into his chest. The sergeants in the LAV testified that when they learned Rohm had been shot, they were back inside the LAV, but one sergeant testified that he was still exposed at the exact time Rohm was shot.
PROCEDURE: Plaintiff, Rohm's mother, sued Sergeant Lubelan and Lieutenant Ellsworth in U.S. District Court for the Western District of Michigan per 42 U.S.C. § 1983 for violating Rohm's Fourth Amendment right to be free from unreasonable seizure, and for liability under Michigan state law. Plaintiff claimed that Lieutenant Ellsworth had already ordered his sharpshooters to fire at Rohm if he aimed a rifle at the LAV, and presented expert testimony that police acted deliberately or recklessly to provoke Rohm's actions. After discovery, Defendants moved for summary judgment on grounds that as a matter of law they had not acted unreasonably, and were entitled to qualified immunity. The trial court ruled that the LAV sergeants' testimony that they were inside the LAV when they learned of the shooting, plus Rohm's stepfather's testimony that Rohm always fired rifles right-handed, together with Plaintiff's police practices expert's testimony, established a genuine issue of material fact as to both qualified immunity and Michigan state law liability. SUMMARY JUDGMENT DENIED in all respects. Defendants appealed immediately to the U.S. Court of Appeals for the Sixth Circuit.
DECISION: If any material facts affecting qualified immunity are still in dispute, no appellate court has jurisdiction. However, the Sixth Circuit held that even taking the facts in the light most favorable to Plaintiff, only issues of law remained, establishing appellate jurisdiction. Under these facts, the police did not make the trouble any more than any responding officer does when presented with lawbreaking or violence; in fact, police have a duty to intervene.
Whether or not Lieutenant Ellsworth ordered anyone to fire at Rohm if he raised a weapon at the LAV was immaterial. The two shots that Sergeant Lubelin fired at Rohm constituted the only "seizure" under the Fourth Amendment, and courts may only look at the split-second judgments of the officer who made the actual seizure. Under these facts, a supervisor such as Lieutenant Ellsworth could not be liable, and he was entitled to summary judgment.
Beyond dispute, Rohm was holding his rifle when he was shot, as evidenced by the bullet hole in it. Even if Sergeant Lubelin did not see Rohm point his rifle toward the LAV, a reasonable officer in Sergeant Lubelin's position had probable cause to believe that Rohm was about to do deadly harm. Rohm's violent behavior and the inherent dangerousness of a rifleman close to the LAV were justification for Sergeant Lubelin's well-aimed shots, and he was entitled to summary judgment. Furthermore, under Michigan law, Rohm's own behavior, not any police provocation or recklessness, proximately caused his own death, meaning that all officers were entitled to summary judgment. DENIAL OF SUMMARY JUDGMENT REVERSED.
EDITORIAL: Two great big thumbs up to the Sixth Circuit and Michigan Assistant Attorney General Margaret A. Nelson for a splendid job. Now that's what I call world-class appellate advocacy. I feel for the guy's mother, but nobody gets to raise a hand, much less a deadly weapon, to the law without severe consequence. Bravo Zulu to Sergeant Lubelin for fulfilling the police sharpshooting mission perfectly; righteous shots that hit only the guilty person, stop the fight, and save innocent lives.
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