Tuesday, December 8, 1998

Colorado Court of Appeals People v. Lindsey 88CA0274

Decided August 16, 1990.

   Denver PD was investigating a murder/attempt robbery/agg assault and had PC to arrest Lindsey.  Following up on a lead, they went to Lindsey's girlfriend's house (in Aurora) to ask her some questions.  During the interview the officers became suspicious that Lindsey was in the house because his girlfriend was acting like nervous buffoon, gesturing towards the back of the house, and saying that Lindsey had just left but would be back.  And also because they heard someone moving around in a closet.

   So, even though they were outside of their jurisdiction, unaccompanied by local officers, and not in fresh pursuit, they searched the house and found Lindsey.  They arrested him, he later confessed, and he was eventually convicted.  He appealed his conviction, arguing (among other things) that his confession should have been suppressed because his arrest violated Colorado law and the Fourth Amendment.

   The Court of Appeals recognized that Lindsey's arrest was made in violation of Colorado law.  C.R.S. 16-3-106 authorizes the police to make arrests either within their territorial jurisdiction or outside of it when in fresh pursuit (meaning the continuous and uninterrupted pursuit of a suspect without unnecessary delay after the commission of an offense).  Since there was no fresh pursuit here, the Denver officers would have needed to be accompanied by Aurora officers in order to comply with the statute.  That said, this sort of conduct doesn't require suppression unless the violation is willful or so egregious that it violates the suspect's Constitutional rights.

   In this case, the record shows that the police really were there to investigate rather than make an arrest (since they just brought two cops, and entered the house without drawing their guns and only after receiving consent to enter.  Hardly what one does when arresting a murder suspect).  So the violation was not willful.  Further, when the police became aware that the suspect was hiding on premises where they were lawfully present, the exigency of preventing his flight justified making the arrest.  So although the court agrees that they "technically violated the statute," the arrest was justified for Fourth Amendment purposes.

   The court also discusses the requirements for making warrantless arrests inside the home.  It says these do not violate the Fourth Amendment when justified by PC and exigent circumstances, or when justified by PC and consent to enter & search the premises.

   For those who are interested, there's also some discussion of testimonial privilege, evidence of other acts, and a defendant's right not to take the stand.  None of it really matters for the purposes of this blog, though.  Lindsey's conviction was affirmed.

Friday, December 4, 1998

US Supreme Court Florida v. Wells 88-1835

Decided April 18, 1990

   Wells was arrested for DUI, and during an inventory of his car, impound employees (acting on behalf of the police) found a lot of marijuana in a suitcase in the trunk.  Probably not the best time to be driving drunk, but whatever.

   Wells moved to suppress the marijuana, arguing that the inventory had violated the Fourth Amendment.  The court denied the motion, and he appealed.  The appellate court sided with Wells, saying that an agency should have a policy which requires closed containers to be opened or not during an inventory.

   The US Supreme Court held that the purpose of an inventory is to protect the property owner from loss or damage, and to protect the police from dangerous items which might be included in property under their control.  Notably missing from that list is the discovery of evidence (inventories are not conducted for that purpose, although evidence found during an inventory can still be used in court under the plain view doctrine).  In order to protect the actual purpose of the inventory instead of allowing it to become an excuse to search for incriminating evidence, the court deemed it necessary to require police agencies to have a policy which spells out the parameters of any given inventory.  That said, the policy can still afford for individual discretion when it comes to which containers will or will not be opened, as long as there is a policy.

   Since the Florida Highway Patrol didn't have such a policy, the marijuana in this case was suppressed.

Thursday, September 17, 1998

US Supreme Court Graham v. Connor 87-6571

Decided May 15, 1989

   This is really an interesting case, and every cop should read it.  Preferably after they've been a cop for a while, and have enough experience to put what they are reading in that context.

   We've all heard the story... Graham was a diabetic who had a friend drive him to a convenience store so he could buy orange juice to stave off an insulin reaction.  He ran into the store, saw that there was a long line, and ran back out to be driven to a friend's house instead.  Connor (a cop) saw this, thought this was suspicious, and detained Graham & his friend about a half mile away.  Graham's friend tried to explain the problem, but Connor was having none of it and continued the detention while calling for backup and also having another officer go to the convenience store to see if anything had happened there.

   Graham freaked out, got out of the car and ran around, then briefly passed out on the curb.  More officers showed up, and Graham got his ass kicked (on the order of broken bones).  Graham's friend tried in vain to explain the issue, which pretty much just got him bitched out in the midst of Graham's ass kicking.  Then the officer at the convenience store reported that nothing had happened there.

   Oops.  Graham was released without charges at his house.

   Unsurprisingly, Graham sued.  The district court dismissed the lawsuit by applying a legal standard that is no longer relevant because of this case.  Graham appealed, all the way to the Supreme Court.

   When I read this decision, I was surprised to learn that the court didn't decide whether or not the use of force in this case was justified.  All the court did was clarify the legal standard that the police were to be held to, and then remand the case back to the lower court for a decision consistent with that standard.  I wonder how it went?  If this case were to happen today, I'm sure that Graham would be getting a big check.  But that's really neither here nor there.  The important thing is that the court made explicit that all cases involving police use of force were to be judged against the Fourth Amendment standard of reasonableness.  But there's a couple of paragraphs towards the end of the decision that were important enough that I didn't want to paraphrase them and miss something.

The "reasonableness" of a particular use of force must be judged from the perspective
of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.  The
Fourth Amendment is not violated by an arrest based on probable cause, even though
the wrong person is arrested, nor by the mistaken execution of a valid search warrant
on the wrong premises. With respect to a claim of excessive force, the same standard of
reasonableness at the moment applies: "Not every push or shove, even if it may later
seem unnecessary in the peace of a judge's chambers," violates the Fourth Amendment.
The calculus of reasonableness must embody allowance for the fact that police officers
are often forced to make split-second judgments — in circumstances that are tense,
uncertain, and rapidly evolving — about the amount of force that is necessary in a particular

As in other Fourth Amendment contexts, however, the "reasonableness" inquiry in an
excessive force case is an objective one: the question is whether the officers' actions
are "objectively reasonable" in light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation (in analyzing the reasonableness of a particular
search or seizure, "it is imperative that the facts be judged against an objective standard"). An
officer's evil intentions will not make a Fourth Amendment violation out of an objectively
reasonable use of force; nor will an officer's good intentions make an objectively unreasonable
use of force constitutional.

   Okay, so every cop who's been on the job for five minutes probably has some understanding of the first of those two paragraphs, and that's good, but I think very few of us really get the second one.  The "objective" prong of "objective reasonableness" is almost entirely lost on us.  Which is a shame.  The ones who get it are much more concerned about doing things the right way, and they scare me a lot less.  

Wednesday, July 8, 1998

US Supreme Court Colorado v. Bertine 85-889

Decided 1-14-87.

   Bertine was arrested, his car was impounded, and an officer conducted an inventory of the car prior to towing it.  During the inventory the officer found meth, paraphernalia, and money in a backpack, and Bertine was charged with possession.

   The evidence was initially suppressed by the trial court and by the Colorado Supreme Court, because they held that during an inventory which included closed containers they officers needed to weigh the likelihood of finding valuable items in the container against the defendant's privacy interest in that container, and also because the Court relied on previous decisions which had held the search of closed containers impermissible (although those cases didn't involve vehicle inventories).  The US Supreme Court reversed the Colorado Supreme Court.

   The court discussed South Dakota v. Opperman, which held that the government's interests in an inventory (to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger) outweigh a person's diminished expectation of privacy in a vehicle.  Because these purposes are not related to criminal investigation, this kind of search is reasonable even in the absence of a warrant or probable cause.  In the present case, the court held that these interests would be better served by a single standard than by requiring officers in the field to make the complicated determinations that the Colorado court wanted.  The court also held that there was no evidence that the officers acted in bad faith or for the purposes of uncovering criminal evidence, so the search was valid.

   Bertine also argued that because Boulder PD regulations gave officers discretion to either impound a car or leave it secured where it was, the inventory violated his Fourth Amendment rights because the police chose to impound it.  The Supreme Court ruled that this discretion doesn't invalidate the search as long as the officers exercise their discretion according to standard criteria (related to the feasibility and appropriateness of parking and locking a vehicle rather than impounding it), and don't impound vehicles as an excuse to search them for evidence.

Monday, July 6, 1998

US Supreme Court New York v. Burger 86-80

Decided June 19, 1987

   Burger was the proprietor of an auto salvage yard (which he was operating without a license).  Police showed up to conduct an inspection of his business records and inventory, pursuant to a New York statute that allowed them to do random inspections on auto salvage yards.  He didn't have any business records to show them, but he did have inventory, which was stolen.  He was charged with possession of stolen property and with operating his junkyard without a license.

   Burger moved to suppress the evidence because the police searched his yard without a warrant.

   The US Supreme Court held that certain industries have a history of pervasive regulation by the government, to the extent that it diminishes their expectation of privacy.  They key question in identifying these industries isn't so much the length of time that they have been so regulated (although that is an factor), it's the depth and pervasiveness of the government oversight.  The industries mentioned in the decision include alcohol, firearms, mines, and junkyards.

   In order for the pervasive regulation of an industry to make search warrants (and even probable cause) unnecessary, a few requirements have to be satisfied:  First, there must be a substantial government interest in regulating the industry (in this case, it's the deterrence of auto theft by eliminating fences).  Second, warrantless inspections have to be necessary to further the regulative scheme (in this case, the court noted that stolen cars move quickly through junkyards, and that frequent unnanounced inspections are necessary to deter this).  Third, the regulatory scheme has to provide a constitutionally acceptable substitute for a warrant.  This means there has to be some sort of regulation which defines the scope of the search and puts the business owner on notice that the business is subject to searches (in this case, the statute itself was held to be a constitutionally acceptable substitute).

   The suppression order entered by a lower court was reversed.

Thursday, June 11, 1998

Colorado Supreme Court People v. Unruh 84SA299

Decided 1-21-86.

   A police officer drove past three guys who were attempting to conceal something large and heavy in the trunk of a car.  When he came back, the car was abandoned, and the object in question turned out to be a safe.  One of the suspects was apprehended, and admitted to burglarizing a nearby house.  This suspect also claimed that the safe contained cash and drugs.  Another detective found a house nearby that appeared to have been broken into (the door had been broken open).  Officers searched the house, and found drug paraphernalia.  Unruh came home confirmed that his safe was stolen, and was informed that it had been taken to the police station and that he could get it in a day or so.

   While the safe was still at the station, officers had a K9 sniff the exterior of the safe.  The K9 alerted, indicating the presence of drugs.  Police obtained a search warrant, and found a lot of cocaine and marijuana in the safe.  Unruh was charged and convicted, and appealed his conviction on the grounds that evidence against him should have been suppressed.

   The Colorado Supreme Court recognized that other courts had already held that a dog sniff was not a search under the fourth amendment, but decided to afford greater protection against searches under the Colorado Constitition.  So the court ruled that a dog sniff was in fact a search, but that because of the minimal intrusion involved, it could be justified on the basis of reasonable suspicion.  Unruh also argued for suppression on the basis that the search of his house was unreasonable.  The court held that the search of his house was valid under the emergency exception (police officers may enter private property without a warrant where there is a reasonable belief that the premises have been or are being burglarized in order to secure the premises and to search for suspects and victims), and that although impermissibly expanded the search beyond the scope of the exception (they looked in dresser drawers, apparently they were looking for very small suspects), the paraphernalia was found in a place where they had authority to search.  So the warrant was good, and the conviction was upheld.

Wednesday, May 6, 1998

US Supreme Court Tennessee v. Garner 471

Decided March 27, 1985

   Police responded to a call of a burglary in progress, and found the suspect (Garner) fleeing from the house.  The officer attempting to stop Garner could see that he was 17 or 18, and appeared to be unarmed.  He identified himself as an officer and ordered Garner to stop.  Garner instead continued to flee, and began climbing over a fence.  In order to prevent him from escaping, the officer shot him in the back of the head.  He died, and was found to have stolen $10 and a purse during the burglary.

   The officer was acting under the authority of a state statute which authorized the use of any necessary force to effect an arrest (although most police departments of the time had policies that would have prohibited this use of force, this particular department did not).  The state argued in this case that the reasonableness of a seizure depends only on the facts justifying it, and not on how the seizure is actually carried out.  The court held that "to determine the constitutionality of a seizure we must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion."

   The court also explored the justifications for the old common law rule that allowed deadly force to be used to apprehend a fleeing felon, but that rule came from a time when most felonies were punishable by death, and when the use of deadly force generally involved  closer combat and therefore was justified in part by the risk to the officer.  None of those justifications were found to be appropriate for the modern world, where many felonies are less violent and dangerous than some misdemeanors.

   The court ruled that "whenever an officer restrains the freedom of a person to walk away, he has seized that person.  While it is not always clear just when minimal police interference becomes a seizure, there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment," and that "where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given."

   Obviously, under the facts of this case, the use of deadly force was unreasonable.

Sunday, May 3, 1998

US Supreme Court Oregon v. Elstad 83-773

Decided March 4, 1985.

   Police obtained a warrant for Elstad's arrest after a witness reported seeing him burglarize someone's home (Elstad was 18).  The police went to his house, where his mother showed them to his room.  One officer then stayed with Elstad while another went with his mother to another room to inform her of the warrant for his arrest.  The officer who stayed with Elstad informed him that he believed he had been there for the burglary, and Elstad admitted that he had been.

   Elstad was arrested and taken to the station, where he waived his Miranda rights and confessed.  At trial, he sought to suppress his confession.  He argued that his confession was the fruit of the poisonous tree, being tainted by his earlier unwarned statement that he had been there.  The court had none of it, he was convicted, and he appealed.  The court of appeals took Elstad's side and reversed his conviction.  The prosecution appealed.

   The US Supreme Court ordered Elstad's conviction reinstated.  Here's why: Miranda warnings (like the exclusionary rule) are not actually required by the Constitution.  They are a judicially created measure designed to protect a constitutional right.  Where a Miranda violation has occurred, a suspect's statements will be presumed to be involuntary and suppressed, but if the statements were not actually made as the result of coercive police conduct the 5th Amendment isn't actually being violated so the fruit of the poisonous tree doctrine doesn't apply.  In this case, the prosecution had already conceded that Elstad was in custody at the time of his first incriminating statement (I don't think they should've conceded that.  If they had argued the point, then I think they would have won this case on those grounds), so the Court accepted that conclusion.  But even without Miranda warnings, the Court held that the statement was obviously voluntary.  It was made in Elbert's home (hardly a police dominated atmosphere), there was no show of force or other coercive police conduct, it was made in response to an off-hand comment rather than after extensive interrogation.  Obviously voluntary.  Since the prosecution conceded the issue of custody, and since there was no Miranda warning given, the statement was inadmissible in court, but since the statement was not coerced there was no actual violation of Elstad's rights.

   If Elstad's rights had been violated, then the second confession could have been admissible anyway if there was a sufficient break in the causal chain between his earlier statement and his later one.  But since his rights weren't violated, no break in the causal chain was necessary.  All that was necessary was that his second statement also be voluntary (and, of course, made after a Miranda waiver).  Since that requirement was met, the statement should not have been suppressed.

Friday, April 10, 1998

Colorado Supreme Court People v. Berow 83SA498 83SA506

Decided October 9, 1984.

   Berow and her husband lived in a hotel, and went on a vacation to California.  Before leaving, they asked the manager to watch their room and "arrest any intruders."  While they were gone, the manager found the door had been tampered with and thought he saw someone inside.  He called the cops.  Even though the door had been tampered with, it was apparently still secured from inside by a chain lock.  Believing that a burglary was in progress, the officer forced entry.

   No one was found inside, but while searching only in areas where a person could hide the officer found a hash pipe and some marijuana plants.  He left the apartment, got a search warrant, returned and seized the evidence.  The trial court suppressed the evidence and the people appealed.

   The Colorado Supreme Court held that the apparent in-progress burglary constituted exigent circumstances justifying the officer's entry, and that additionally the hotel manager had apparently been given authority to consent to the officer's entry.  Once inside, the officer found the items in plain view and did not deviate from the original purpose of the search until he had obtained a warrant.  The order suppressing the evidence was reversed.

Tuesday, April 7, 1998

US Supreme Court US v. Leon 82-1771

Decided July 5, 1984

   An untested confidential informant made some allegations against some people, the cops investigated at great length, and eventually applied for a search warrant for three houses.  The warrant application was reviewed by several deputy district attorneys before making its way to the magistrate, who found that there was probable cause.  The warrant was issued, and evidence obtained from the searches led to several arrests (including Leon's) for conspiracy to possess and distribute cocaine.

   The defendants moved to suppress the evidence, arguing that the warrant was not supported by probable cause.  The trial court held that this was a close case, and that the investigating officer had acted in good faith in his investigation, but that the affidavit did not contain sufficient information and the warrant should not have been issued.  Accordingly, the evidence was suppressed.  The people appealed.

   The case gets more interesting when the court discusses the exclusionary rule.  Essentially, the exclusionary says that if evidence is obtained as the result of unlawful police conduct, then that evidence may not be introduced in the prosecution's case in chief (the evidence can still be used for other purposes, such as for cross-examining the defendant and for testimony in front of a grand jury).  And there's nothing in the Constitution which guarantees the suppression of unlawfully obtained evidence; the fourth amendment establishes the people's right to be free from unreasonable search and seizure, but it doesn't say anything about what should happen with evidence that is obtained when that right is violated.  The exclusionary rule was a sanction created by the courts to ensure that law enforcement would not systemically violate people's rights.

   That's a key point: the exclusionary rule doesn't exist to vindicate someone's rights (that's what lawsuits are for).  The exclusionary rule exists to discourage police misconduct, and so it should only be applied in circumstances where it will actually accomplish that goal.  In a case like this one, the police had already done everything they could to comply with the law.  They sought the guidance of a neutral magistrate by applying for a search warrant, and they were entitled to rely on the magistrate's judgment.  When the police are acting in good faith reliance on a search warrant they believe to be valid, but that warrant is later found to be invalid for some reason, the evidence is still admissible.  And so the good faith exception was born.

   Of course, this exception won't save a warrant that obtained by presenting faulty information to a judge when the officers knew or should have known that the information was false.  It also won't help if the warrant is obviously invalid (such as warrants that don't particularly describe the place to be searched or the item to be seized), warrants that are based on affidavits obviously devoid of probable cause, or "rubber stamped " warrants (meaning warrants issued by a judges who will grant anything just because the cops asked for it).

Monday, April 6, 1998

US Supreme Court New York v. Quarles 82-1213

Decided June 12, 1984

   This decision created the well-known public safety exception to Miranda.

   A couple of cops were approached by a woman who claimed that she had just been raped by a man with a gun.  She described the suspect, and said that he had gone to a particular supermarket.  The cops went to that store, where the found Quarles (who matched the suspect description).

   As soon as he saw the cops, Quarles took off running.  They chased, lost sight of him briefly, but caught him a moment later.  He was held at gunpoint, handcuffed, and searched, and there were at least four cops present.  He was in possession of an empty shoulder holster.

   One of the cops asked Quarles "Where's the gun?"  Quarles nodded to some boxes and told him the gun was over there.  After recovering the gun, the officer read Quarles the Miranda warnings.  Quarles waived his rights, and made some additional incriminating statements.

   The trial court suppressed the gun and Quarles' statements, reasoning that all of that evidence was tainted by the officer's failure to read Miranda before asking Quarles where the gun was.  The prosecution appealed all the way to the US Supreme Court.

   The Court explained that the Miranda warnings aren't actually constitutional rights themselves, but court-created procedural safeguards which protect the Fifth Amendment right against self incrimination.  At the time that the court had created this safeguard, it accepted that requiring officers to Mirandize suspects would result in fewer convictions.  But this situation is different: the gun which was discarded somewhere in the store posed a safety risk.  The court held that unlike the risk of a later acquittal, a present risk of physical harm is more important than the procedural safeguard of Miranda warnings.  The court also noted that Quarles' incriminating statements weren't obtained by the sort of coercion that Miranda was intented to prevent.  So the court created a narrow exception to Miranda, allowing unwarned statements in circumstances like these to be used as evidence by the prosecution (as long as those statements are the result of the sort of questioning which is necessary to address a safety risk).

Saturday, April 4, 1998

US Supreme Court US v. Jacobsen 82-1167

Decided April 2, 1984.

   FedEx employees accidentally damaged a package with a forklift, and so they examined the contents of the package (apparently there's a policy that they do that with damaged goods for insurance reasons).  They found that the package contained nothing except baggies of white powder, so the called the police.  A federal agent arrived (by then the FedEx employees had put the cocaine back in the package, but didn't seal it), reopened the package, and extracted a small sample from the baggies with a knife.  It tested positive for cocaine, and the feds got a warrant for the house that the cocaine was being shipped to.  Jacobsen et al were arrested at that house, charged with and convicted of possession with intent to distribute.  They appealed their conviction, arguing that the warrant was obtained as the result of an illegal search and seizure.

   The US Supreme Court explained that the Fourth Amendment restricts two different categories of government actions: searches (where the government infringes an expectation of privacy that society is prepared to recognize as reasonable) and seizures (where the government interferes with a person's possessory interest in the item being seized).  The Fourth Amendment only protects against government actions.  If a private person conducts a search that would be unreasonable for a police officer, that search does not violate the Fourth Amendment.  So the initial search by the FedEx employees doesn't require the suppression of any evidence.

   The rule for subsequent warrantless searches by law enforcement are that they can not expend the scope of the original private search.  Jacobsen's expectation of privacy in the package was compromised by the actions of the FedEx employees (the same as it would have been if he had given the package to a third person who had chosen of his own accord to open it for the police).  Once an expectation of privacy is compromised by a private person, the police are not required to ignore information obtained from that source.  And reexamining the cocaine wasn't likely to reveal any information other than what the feds already knew from the FedEx employees.  So even though the cocaine was repackaged when the feds got there, the agents were within their authority when they took it out of the package to examine it. 

   Holding on to the package instead of allowing it to continue on to its destination was a seizure, but it was held to be a reasonable one because the package obviously contained contraband.  Field testing the cocaine (which involved removing a trace amount with the knife and destroying it) was a more serious seizure, because it was permanent.  This was still held to be reasonable, because the courts balanced the government's interests in enforcing drug laws against the defendant's possessory interest in the cocaine.  Since people do not have a legitimate possessory interest in contraband, since the outcome of the test was virtually certain before the test was conducted, and since the amount removed for the test was so slight, the government's interests were held to outweight Jacobsen's interests in this case, and the seizure was held reasonable.

   Jacobsen et al's convictions were upheld.

Thursday, March 12, 1998

US Supreme Court US v. Place 81-1617

Decided 6-20-83.

   Place was flying from Miami to New York when he somehow aroused the suspicion of law enforcement officers.  They contacted him, and he presented ID and consented to a search of his checked luggage.  The police did not search him, because his flight was due to leave in ten minutes.  As they released him, he made some remark about how he had recognized that they were police officers.  Because of this (?), they did a little more digging and figured out that he had listed fake addresses on his luggage tags.  They called the police in New York to let them know Place was coming.

   In New York, DEA agents contacted Place as he about to leave the airport with his luggage.  He made the same remark about knowing that they were cops.  They told him that based on their own observations and on information from Miami, they believed he was carrying narcotics.  They asked for consent to search his luggage, and he refused.  They told him that they were going to detain his luggage in order to get a search warrant, and gave him a choice to either accompany them or not.  He chose not.

   The DEA "detained" Place's luggage for about an hour and a half, then ran a dog on it.  The dog alerted on one of the two bags.  This was on a Friday, and they held on to the luggage until Monday when they got a warrant for the bag the dog had alerted on.  There was cocaine in there, and Place was later arrested.

   The trial court applied the reasoning of Terry v. Ohio to the DEA's "detention" of Place's luggage.  The Court of Appeals called bullshit on the 90 minute detention, and this case found it's way to the Supreme Court.

   The Court ruled that the authority to briefly detain people based on reasonable suspicion also applied to the detention of property, so the initial detention of the luggage was permissible.  The court also ruled that because a K9 sniff involves such limited intrusion, and only gives the police information about the presence of contraband (which people do not have a right to possess, and therefore have no legitimate privacy interest in), a K9 sniff is not a search for fourth amendment purposes and does not require probable cause.  Finally, although the court declined to put a specific time limit on investigative detentions, the court held that the facts of this case did not support a 90 minute detention of luggage.  So even though this decision expanded government authority to both detain property and conduct K9 sniffs, the police in this case violated the fourth amendment and Place's conviction was reversed.

Colorado Supreme Court People v. Reynolds 83SA346

Decided December 5, 1983

   Officers responded to a call that a gun had been fired during a domestic dispute, and that the reporting party's mother had locked herself in the bathroom.  When they got there, Reynolds admitted the police into the house and gave the police permission (entirely unnecessarily, in my opinion) to break down the bathroom door in order to render aid to his wife, who he said had been shot.  The cops broke down the door, and found Reynolds' dead wife in the bathroom.  Reynolds was subsequently arrested, and in continuing their search of the house (looking for additional victims), the police found additional evidence (including a revolver).  An hour and a half later, CSI photographed the scene, took measurements, and generally did what CSI does.  No warrant had been obtained. 

   The trial court ruled that the police had lawfully made entry into the residence based on the emergency exception to the warrant requirement.  The court also ruled that the evidence was discovered during a lawful search and validly seized under the plain view exception.  However, the pictures and measurements taken by CSI were suppressed because the court held that a warrant was required before CSI could do their thing (the emergency having apparently expired).  The people filed an interlocutory appeal.

   In its decision, the Colorado Supreme Court discussed three exceptions to the warrant requirement: exigent circumstances (in particular, the emergency exception), consent, and plain view.

   The emergency exception exists where there is "a colorable claim of emergency threatening the life or safety of another."  Searches under this exception must be limited to the scope of the emergency (so you can't go looking for gunshot victims in the kitchen drawer.  If they fit in there, the emergency has passed).  The circumstances of this case supported searching the entire house for victims, suspects, or weapons under the emergency exception.

   Consent exists where a person voluntarily waives his rights.  Consent may be limited in scope, time, area (or pretty much whichever way the person giving consent wants to limit it, although the court doesn't come right out and say that).  Consent was also present in this case (at least when the police were kicking down doors), although the district court did not consider it.

   The plain view exception allows police to seize incriminating evidence which they discover under three conditions: 1- the initial intrusion into the protected area must be valid (either under a warrant or an exception to the warrant requirement), 2- the discovery of the evidence must be inadvertent, and 3- the officer has to know that the evidence is incriminating (seems simple enough, but it apparently has to be said.  I almost hate to wonder who screwed that one up so that the court had to spell it out?).

   In this case, the items of evidence were validly seized under the plain view doctrine, pursuant either to consent or the emergency exception.  Now on to the recordings.  The court held that although 90 minutes had passed between the discovery of the evidence and the processing of the scene, the scene was processed as part of an ongoing investigation and was justified under the same circumstances that justified the initial entry and search.  The court didn't see any logic behind the suppression of pictures of lawfully seized evidence.  The suppression order was reversed, and the case remanded back to the trial court to determine whether or not the scene processing exceeded the scope of the original justified search.  Just like an emergency can't justify a general exploratory search, CSI processing of lawfully obtained evidence can't justify a further exploratory search.  If the processing expands beyond the previous search, then the evidence obtained can be suppressed.

Wednesday, March 4, 1998

US Supreme Court Illinois v. Lafayette 81-1859

Decided 6-20-83.

   Lafayette got into a fight with the manager of a theater, and was arrested for it.  He had a "purse-type shoulder bag" with him. :)

   At the station, Lafayette was ordered to empty his pockets (and purse) onto a table to be inventoried.  The arresting officer searched the purse as part of the inventory, and found meth.  Lafayette was charged with possession, but the state courts suppressed the evidence (holding that the search of his property wasn't valid either as a search incident to arrest, or as an inventory because Lafayette had a greater expectation of privacy in his purse than he would have in a car, and the purse could have just been secured without being searched).  The US Supreme Court reversed this decision.

   The court discussed the dwindling of a suspect's expectation of privacy during an arrest: At the time of an arrest, the police may search the suspect's person and the area under his immediate control.  This authority doesn't rest on the likelihood that the suspect is armed or in possession of evidence, but on the lawfulness of the arrest.  When an arrested person is subsequently taken to a police station (which is not always the case), the government's interests in searching the suspect may be even more compelling than the government's interests in searching at the time of the arrest.  Searches that would be too invasive to reasonably perform at the place of the arrest may reasonably be conducted at the police station.  The court also applied the reasoning of Opperman (vehicle inventories) to a prisoner's personal property, and held that inventories of a prisoner's property are a proper means for protecting that property while in police custody, protecting the police from allegations of theft, etc...

   The court also held that it didn't matter whether or not less intrusive means were available to protect the government's interests.  The relevant question is only whether or not the means actually employed by the police are reasonable.

US Supreme Court Texas v. Brown 81-419

Decided April 19, 1983.

   Brown was stopped at a driver's license checkpoint.  After the officer requested his license, he took a tied-off balloon full of something out of his pocket and dropped it in the car, then opened the glove compartment (which contained drug paraphernalia), rummaged around in it for a moment, and then admitted he didn't have a license with him.  Why he chose to proudly display the incriminating contents of his glove box to the officer, we will never know.

   The officer told him to get out of the car, and he did.  Knowing that balloons like that are often used to package controlled substances, the officer retrieved the balloon and then arrested Brown.  The balloon was later found to contain heroin, and an inventory of the car revealed a "green, leafy substance."  Brown argued that none of this should be admissible as evidence, and that the plain view doctrine did not apply to this case, and the case found its way to The Supreme Court.

   In its decision, the court explored some exceptions to the warrant requirement (there's actually a nice little laundry list of landmark cases in the middle of the decision).  Focusing on plain view: the court stated that the question whether property in plain view of the police may be seized must turn on the legality of the intrusion that enables them to perceive and physically seize the property in question, and plain view provides grounds for seizure of an item when an officer's access to an object has some prior justification under the Fourth Amendment.

   In other words, the plain view doctrine allows officers to seize evidence which they already legally have access to (such as if the evidence is in a public place, or if the evidence is discovered while they're executing a search warrant or conducting a search pursuant to an exception to the warrant requirement).  The decision also notes that the evidence has to be inadvertently discovered, which specifically means that the police can't use plain view as a ruse to discover evidence that they already knew the location of.  Finally, the decision states that the incriminating nature of the evidence must be immediately apparent.

   That last one was a sticking point for one of the lower courts, which had incorrectly suppressed the evidence in this case.  The lower court had interpreted "immediately apparent" to mean that the police must have iron-clad proof that something is incriminating before they could seize it under plain view.  The supreme court clarified that in order to seize something under plain view, the police need only have probable cause to believe that it was evidence.

   There's also some discussion in this decision of the probable cause standard: "As the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief, that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false."

   Other than that, the most interesting part of the decision spells out that using flashlights to illuminate the interior of a car (like using a "marine glass or field glass") is not a search, and neither is moving around to get a better vantage point to see what is inside a car.

   The Supreme Court ruled that the evidence in this case was admissible under the plain view doctrine.

US Supreme Court Michigan v. Long 82-256

Decided July 6, 1983

   Long was speeding through a rural area when two deputies saw him swerve into a ditch.  When they caught up to him, he had gotten out of his car.  He seemed to be under the influence of something, and was slow to respond to questions.  He eventually gave them his license, then headed back towards his open car door in response to a request for his registration.  One of the deputies noticed a hunting knife on the floorboard, so they stopped Long from entering the car and searched him for weapons.  Then one of the deputies visually inspected the interior of the car, looking for more weapons.  Instead, he found pot.

   Long was arrested, and the car was impounded.  During an inventory of the car, the deputies found 75 lbs of pot in the trunk.  Long was later convicted of possession.  He appealed his conviction, arguing that Terry v. Ohio only authorized the deputies to search his person for weapons, not his car.

   The US Supreme Court held that where circumstances justify a protective frisk, that search extends to the suspect's person and to the area under his immediate control.  Under these circumstances, the areas of the car which the deputies first searched (basically, what you could get to through the open driver's door) were held to be sufficiently under Long's control to justify the search even though Long was being prevented from accessing the car.  The court recognized that if Long were to break free of police control, or if he were to be allowed back into his car at the completion of the stop or during the stop (such as if he were allowed to retrieve his registration), then he would have access to any weapons that might have been concealed there.

Tuesday, March 3, 1998

Colorado Supreme Court People v. Bartowsheski 81SA556

Decided March 7, 1983

   Bartowsheski and Tarwater were living with a guy who ran the landscaping business where they worked, when there was an argument over money.  Bartowsheski and Tarwater thought their boss owed them money, he thought they owed him money.  After a night of drinking, the two decided to handle their dispute by stealing a bunch of guns from their boss and leaving town.  Tarwater stayed in the car, ready to drive away, while Bartowsheski went into the house to get their stuff (and their boss' stuff).  When Bartowsheski didn't come out for a while, Tarwater fell asleep.

   Meanwhile, Bartowsheski was inside murdering their boss' eight year old daughter.  Apparently, she was in the front room and he had to walk past her to get to the guns, and he was too stupid to come up with a less final way around her than to stab her eight times and slit her throat.  After that, he went outside and woke Tarwater up and the two of them left.

   They made it as far as Kansas, but they were arrested there.  Tarwater had apparently been unaware of the murder and testified against Bartowsheski.  Bartowsheski was convicted of 1st Degree Murder (after deliberation), 1st Degree Murder (Felony Murder), and Robbery.  He appealed, arguing insufficiency of the evidence (among other things).

   Bartowsheski argued that the evidence didn't show that there was deliberation before the murder, but circumstantial evidence suggested that he had killed the little girl so that she couldn't interfere with the theft.  Deliberation doesn't have to be something that takes a long time, it's just a matter of the defendant taking a moment to evaluate what he is going to do and then deciding to do it.

   Bartowsheski also argued that the evidence didn't support robbery.  He acknowledged that there was evidence to support the unlawful taking of property from the house, but contended that the taking didn't happen at the same time as the use of violence.  The court held that it doesn't have to, though.  Robbery is basically the use of violence or intimidation at any point in a transaction which culminates in the unlawful taking of property.  It doesn't matter if the victim is even aware of the taking, or if the taking and the violence occur at different times or places within that transaction.  So long as the victim would have been able to retain control of the property but for the use of violence or intimidation, the elements of robbery are met.  In this case, the eight year old girl was killed so that she would not interfere with the taking of some guns, so even though the guns were taken from a different part of the house and even though they weren't taken at the same time as the girl was killed, the elements are met.

   And finally, Bartowsheski made some double jeopardy arguments.  The court held that robbery is a lesser included offense of felony murder, and so the robbery conviction had to be vacated.  On the other hand, since felony murder and murder after deliberation have distinct elements, both of those convictions stood.

Thursday, January 8, 1998

US Supreme Court New York v. Belton 80-328

Decided July 1, 1981.

   This case had already been overturned when I started this website, but I'm including it because it's referred to so often in other cases that I've added, so I thought it'd be worth reading.

   An officer stopped a car for speeding, found that none of the four occupants owned the car, and smelled burnt marijuana from inside the car.  He noticed an envelope in the car that said "supergold," which he associated with marijuana (different world in the 80's huh?).  He ordered all four occupants out of the car and arrested them for possession of marijuana.

   He searched the car incident to arrest, found that the envelope did in fact contain marijuana, and found a jacket belonging to Belton (one of the passengers), which had cocaine in the pocket.  He took all four occupants to jail.  Belton took a plea bargain after the court refused to suppress the cocaine, but he reserved the right to appeal that judgment.  And appeal he did.

   So here's where it really gets funny.  Before ruling that an officer could search the entire passenger compartment after the arrest of a recent occupant of the car (holding that the passenger compartment was under the control of any given occupant), this is what they said: "Fourth Amendment doctrine, given force and effect by the exclusionary rule, is primarily intended to regulate the police in their day-to-day activities and thus ought to be expressed in terms that are readily applicable by the police in the context of the law enforcement activities in which they are necessarily engaged. A highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be `literally impossible of application by the officer in the field....[a] single familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront." (emphasis added)

   In other words, we had the Belton bright-line rule because the Supreme Court of the early 80's figured that cops were too dumb to deal with anything more complicated!  Now, I'm all about keeping things as simple as possible (even though that often isn't very simple at all), but this just made me laugh.

   It seems that court has stepped up its expectations of public servants somewhat.

Tuesday, January 6, 1998

US Supreme Court Michigan v. Summers 79-1794

Decided June 22, 1981

   Police obtained a warrant to search Summers' home.  When they arrived, they found that he was just leaving.  He was detained, brought back into the house, and the search of the premises was conducted.  After incriminating evidence was found, Summers was arrested.  During a search incident to arrest, an envelope containing heroin was found in his pocket.  Summers was charged with possession of the heroin found on his person, but the court suppressed the evidence after finding that Summers' initial detention was unreasonable.  The prosecution appealed.

   The US Supreme Court reasoned that a search warrant is a finding by a detached magistrate that there is probable cause to believe that incriminating evidence will be found in a particular place, and that this sort of finding confers suspicion on the occupants of that same place.  This means that the police have the authority to detain people found on the premises where they execute a search warrant, which means that Summers' detention was reasonable.  The suppression was reversed.

Sunday, January 4, 1998

US Supreme Court Steagald v. US 79-6777

Decision here.

   The facts: Lyons had a warrant for his arrest.  DEA agents received an anonymous tip which led them to Steagald's house.  They spent a couple of days planning the raid, but they didn't get a search warrant because they expected Lyons' arrest warrant to justify entry into the house.  Agents went to Steagald's house, gunpointed everybody and searched for Lyons.  They didn't find him, but they found cocaine.  They searched again while applying for a warrant, and found more evidence.  When the warrant was issued, they searched a third time and found a lot of cocaine.  Lyons wasn't found, as has no further relevance to this case.  Steagald was convicted of federal drug offenses, and appealed his conviction on the grounds that the entry and search of his house violated the fourth amendment.

   In Payton, the court had held that an arrest warrant allows the police to make entry into the defendant's home in order to arrest him, when there is reason to believe that he is within.  When an arrest warrant has been obtained, the defendant's right to be free from unreasonable search and seizure is already protected by involving the detached scrutiny of a judicial officer.  But that's when the defendant is arrested in his own home.  In this case, the court pointed out that a warrant for Lyons' arrest did nothing to protect Steagald from unreasonable search and seizure.  The court compared using an arrest warrant to justify a search of someone else's house to the writs of assistance which the Fourth Amendment was originally designed to prevent.  In order to render the search reasonable in the instant case, the agents would have had to obtain a search warrant for Steagald's house.

   This decision doesn't diminish police authority to make entry where there are exigent circumstances, or to make arrests in a public place.

Friday, January 2, 1998

Colorado Supreme Court McCall v. People 79SC298

Decided 2-2-81.

   In 1977, David Raley went missing.  He had last been seen with McCall, McCarthy, and Steenbarger.  At some point during the investigation, Raley's body was found in an isolated field in Arapahoe County and the Coroner determined that the cause of death was strangulation.  In a recorded meeting between the Arapahoe County DA and representatives of several nearby agencies, it was decided that a team of officers and deputies would go to the suspect's houses and pretend to interview them as witnesses rather than as suspects in the hopes of getting incriminating statements.  The point of this plan was to elicit incriminating statements before taking the suspects into custody.  Although everyone agreed that there was PC to arrest McCall & Co, they did not obtain warrants for their arrest.  Incidentally, McCall was 18 and lived with his parents, and McCarthy lived with McCall.  So a team of deputies and officers went to McCall's house, and another team went to Steenbarger's house.

   At McCall's house, the cops gained consent from McCall's parents to come inside and talk to the kids by falsely assuring them that McCall and McCarthy were not suspects and were only going to be interviewed as witnesses.  Meanwhile, they ordered McCall and McCarthy to sit on a couch, and wouldn't let them leave the living room.  Eventually, the parents agreed to let the cops do their interview in private, and they headed off to another part of the house.  The cops separated McCall and McCarthy by taking McCall out to the police car.  They read McCall his rights, and he agreed to talk to them.  The interrogation lasted about 40 minutes, and McCall denied any involvement in the murder.

   Meanwhile, another team of cops was trying the same approach with Steenbarger.  Steenbarger confessed, and also incriminated McCall.  The cops interrogating Steenbarger informed the cops who were interrogating McCall.  They stopped the interrogation and took McCall to jail (his parents were still hanging out in the basement, unaware of the arrest).  At the jail, McCall was interrogated again and informed that Steenbarger had confessed.  Faced with that, McCall confessed too.

   When Mccall's parents realized that he had been arrested, they called a lawyer.  He called the station and told McCall to shut up.

   McCall was convicted of the murder, and appealed his conviction (arguing that his confession should have been suppressed).  The Colorado Supreme Court reversed the conviction and remanded the case back to the district court for a new trial.  In its decision, the court spelled out two possible justifications for a warrantless arrest in a suspect's home: exigent circumstances, and consent.

   Exigent circumstances: The court referred to Payton v. New York and Warden v. Hayden for an explanation of this requirement, and held that the record in this case was devoid of any suggestion of exigency.  The decision not to apply for a warrant wasn't based on any emergency, but as part of a plan to elicit incriminating statements.

   Consent: The court held that " A voluntary consent by an occupant of premises authorizing entry by the police for the purpose of effecting an arrest inside the home may constitute, under appropriate circumstances, a valid waiver of the warrant requirement."  Unfortunately for the police, that's not what happened in this case.  "Where, as here, entry into the home is gained by a preconceived deception as to purpose, consent in the constitutional sense is lacking."  In other words, you can't trick someone into waiving their rights by telling them that you're there for something else.

   Since there was neither exigency nor consent, the arrest was unlawful.  Since the confession was a direct result of the unlawful arrest, it had to be suppressed as the fruit of the poisonous tree (it didn't matter that McCall had been read his rights and waived them).  So the case was sent back to the district court for a new trial without the confession.

Thursday, January 1, 1998

US Supreme Court Payton v. New York 78-5420.

Decision here.

   This is an old case, but it's an important one... I've known a lot of cops who don't really understand the principles spelled out in this one.

   Anyway, this decision actually involves two separate cases that revolve around the same issue. Early on, it states that the Fourth Amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest (that one sentence speaks volumes). The facts of each of the two cases are laid out. In one, the police made a warrantless forced entry into Payton's residence to arrest him for murder. He wasn't present, but a gun was found and seized (he was later arrested elsewhere). In the other, police went to Riddick's house to arrest him (without a warrant) for robbery. Riddick's child answered the door, the officers saw Riddick in the house, and then they entered the house and arrested him without giving him a chance to consent or object to their entry. Drugs were found in the house, and he was charged with possession. In each case, there was probable cause for the arrest but no warrant. In each case, the warrantless entry was made at the suspect's own residence. Both defendants moved to suppress the evidence obtained as a result of the warrantless entry into their respective homes.

   After that, the decision explores the origins of the Fourth Amendment, and English Common Law. Read at your own risk, but it's interesting if you like history.

   The last part is as important as the first. Particularly the passage "If there is sufficient evidence of a citizen's participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law. Thus, for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within."

   While I was reading the decision, I kept wondering why it referred specifically to felony arrests. Then I remembered that not every state authorizes warrantless misdemeanor arrests the way Colorado does... New Mexico, at least, requires a warrant for most misdemeanor arrests (unless there is a specific statutory exception).