Thursday, August 12, 1999

Colorado Court of Appeals People v. Foster 97CA1340

Decided December 24, 1998.

   This case is an older one, and it's a Colorado appellate court decision, so ordinarily I probably wouldn't write it up.  But today, we're going to make an exception.  Why, you ask?  Because it makes me look stupid.

   So the other day (a few months ago, actually), I got into an argument with someone at work.  I was handling a shoplifting case where the suspect assaulted a loss prevention officer who tried to stop him.  I figured that since the taking of the vacuum (it was a Dyson, taken from the store rather than from the guard) occurred separately from the assault (he pepper sprayed the guard on his way out of the store), we essentially had a misdemeanor theft and a misdemeanor assault.  The person who I was arguing with said that shoplift + assault = robbery.  Our argument fell short of namecalling, but only because I left the room before this guy started calling me names.

   And the worst part?  He was right.  Shoplift + assault does in fact = robbery.  Thus saith a 1998 decision of the Colorado Court of Appeals.  Ladies and gentleman, it is my pleasure to introduce you to the case of People v. Foster.

   A loss prevention officer noticed that Foster (who he recognized from previous shoplifts) was stealing bed skirts.  Yes, bed skirts of all things.  Anyway, he chased after Foster to recover the merchandise, and almost got him.  He grabbed onto Foster's jacket as Foster was getting into a van, and Foster slammed the door on his hand.  Three times.  The guard let go, and away Foster went.

   Foster was eventually arrested for and convicted of robbery.  He appealed, making much the same argument that I did.  He argued that the bed skirts (really?) weren't taken from the person or presence of the security guard, and therefore this was not a robbery.  Now, clearly, the bed skirts were not taken from the guard's person.  They were taken from a shelf.  But presence?  The Court of Appeals, relying on People v. Bartwoshesk... bartsoshew...BARTOWSHESKI, held that property is taken from the presence of another where it is "so within the victim's reach, inspection, or observation that he or she would be able to retain control over the property but for the force, threats, or intimidation directed by the perpetrator against the victim."

   The court also mentioned other cases where it had held that the theft of the contents of a safe in a movie theater was not robbery, because the clerk did not have access to or authority over the contents of the safe.  However, in this case, the security guard was specifically charged with maintaining (or regaining) control of store merchandise.  He was essentially the custodian of the property of the store, to include bed skirts.  To also include bed skirts which he would have been able to retain control of were it not for the fact that Foster crushed his hand in a car door.

   So there you have it: shoplifting + assault = robbery.  Foster's conviction stands.

Thursday, August 5, 1999

US Supreme Court Knowles v. Iowa 97-7597

Decided December 8, 1998.

   Knowles was stopped for speeding, in Iowa.  The law in Iowa authorized police to make a full custodial arrest for traffic offenses, or to simply issue a traffic ticket.  The law in Iowa also specified that if an officer chose to issue a traffic ticket rather than make an arrest, this would not diminish their authority to conduct an "otherwise lawful search."

   So Knowles was issued a ticket for speeding, and the officer conducted a "search incident to citation" of the car, discovering weed and a pot pipe.  Knowles was then arrested for real, and later convicted.  He appealed his conviction.  The US Supreme Court explained that the reasoning for the incident to arrest exception to the warrant requirement is twofold: 1- to protect the officer by allowing him to disarm his prisoner, and 2- to preserve evidence for later use at trial.  The court held that these justifications do not apply to issuing citations to the same extent that they do to making arrests, so they don't really merit an exception to the warrant requirement here.  The court noted that in cases where there is a heightened concern for safety, there are other doctrines that justify a search (but those didn't apply to this stop, either).

   Iowa's "search incident to citation" law was held to violate the 4th amendment, the evidence was suppressed, and Knowles' conviction was reversed.

Thursday, July 15, 1999

US Supreme Court Maryland v. Wilson 95-1268

Decided February 19, 1997

   In this case, Wilson was a passenger in a car which was stopped for speeding.  The car took a while to actually stop, the passengers kept ducking out of view of the officer, and the driver (when he finally did stop) jumped out of the car, met the officer halfway, and was generally acting like a spaz.  All of this made the officer suspicious, and he ordered the passengers out of the car.  When Wilson got out, he dropped some crack.  He was arrested, but the trial court held that it was unlawful for the officer to order Wilson out of the car because he was only a passenger.  Maryland appealed.

   The US Supreme Court expanded it's decision in Pennsylvania v. Mimms to include passengers, using pretty much the same reasoning.  In other words, the court held that it is reasonable for officers to remove passengers from the car on traffic stop because the government's substantial interest in the officer's safety outweighs the minimal potential inconvenience to the passenger of waiting out the detention outside of the car instead of inside it.

Thursday, June 10, 1999

US Supreme Court Whren v. US 95-5841

Decided 6-10-96.

   This is really a funny decision to read, the court was NOT amused with the petitioners' nonsense.

   Basically, plainclothes officers in an unmarked car were out looking for shit to do in a high crime area.  They saw a pickup truck which was stopped at a stop sign for a long time, which aroused their suspicions (Whren was the passenger in the truck).  When they turned around and drove towards the truck, it suddenly sped off after turning without signalling.  The plainclothes officers caught up to the truck (which had to stop with other traffic at a light), approached on foot, and identified themselves as officers.  The justification given for the contact was to warn the driver of the truck for the traffic violations.  When the police approached, they saw that both the driver and passenger had crack cocaine and they arrested them both.

   Both were convicted, and appealed their conviction because even though the officers had PC for the traffic violations, they asserted that a reasonable officer wouldn't have stopped them under those cicumstances and that the traffic stop was actually a pretext for a criminal investigation.  The court held that as long as the facts of the case objectively constitute probable cause, it doesn't matter what the officers subjective intent was.  The convictions were upheld.

Thursday, March 11, 1999

Tenth Circuit US v. Purdue 92-3140

Decided November 1, 1993.

   Numerous officers (at least 20 on the ground, plus two helicopters) executed a search warrant of a remote farm where a marijuana grow had been located.  During the search, some of the officers found guns and broadcast this to other officers involved in the search.

   While the search was going on, Purdue showed up.  This particular location was apparently so remote that anyone driving down this particular roadway was obviously visiting it, so by virtue of the fact that he was there the police considered him a suspect (the courts were good with that).  When Purdue got close enough to the property to see the police were already there, he turned around and took off.  Some of the perimeter officers conducted a high risk stop, ordering Purdue and his girlfriend onto the ground at gunpoint.  Purdue complied, although his girlfriend didn't because she was nine months pregnant.

   During the high-risk stop, one of the officers asked Purdue some incriminating question about why he was there, whose marijuana it was, etc.  Purdue made some incriminating statements (it was his grow, and he was there to check on it).  To be clear: by "during the high-risk stop," I'm not saying that they cuffed Purdue up, stuffed him in a car, and started interrogating him.  The officer asked him all of these questions whilst standing over him and holding him at gunpoint!  And given that the prosecution didn't learn about this interrogation until the case went to court (leading to some discovery issues with this case), the officer probably neglected to mention any of this in his report.  All around, this was incredibly sloppy work.

   Anyway, Purdue made some incriminating statements.  Then he and his girlfriend were ushered off to speak with some other investigator who read him his rights and continued interrogating him, along with a county attorney who was there for some reason.  During the interrogation, they threatened to charge Purdue in federal court instead of state court if he didn't cooperate (and told him this would mean more jail time, and more time away from his unborn child).  Purdue made a few more incriminating statements, but eventually decided that his smartest course of action was to STFU.  So he invoked his right to remain silent.

   Pretty impressive, that someone could go to all the trouble of getting a search warrant and then still screw up the case this badly, right?  Anyway, this went to trial.  The trial court held that all of Purdue's statements were admissible, and he was convicted.  He appealed on several grounds.  There was some courtroom procedural stuff and the aforementioned discovery issues, but I won't go into that too much.  The important part for cops to know is that if someone confesses, you should probably include that information in your report.  That way, the prosecution knows that it happened and they can disclose that information to the defense attorney (which they are required to do).  And hopefully you can keep yourself out of the appellate courts that way.  Purdue also argued that his statements should've been suppressed because they were involuntary, because they were in violation of Miranda.

   In case I've put you to sleep, this is where it gets interesting again: the tenth circuit recognized that the police had reasonable suspicion to detain Purdue (based on his arrival at the premises where a search warrant was being executed, particularly in light of the fact that it was such an isolated location).  Further, the court recognized that because of the firearms which had been discovered on the premises, it was reasonable for the police to fear that Purdue was armed and dangerous and to conduct a high risk stop.  The court did point out that gunpointing suspects is a level of force more commonly associated with formal arrest, and that if it hadn't been for the discovery of the firearms then this level of force would have converted the Terry stop to an illegal arrest, but in light of the circumstances the police were behaving reasonably.  So far, the police are in the clear.

   But the court also recognized that being under arrest (for Fourth Amendment purposes) is not the same thing as being in custody (for Miranda purposes).  Although stopping Purdue at gunpoint did not convert the stop to an arrest, the stop interfered with Purdue's freedom to the degree normally associated with a formal arrest, and for Miranda purposes he was very much in custody.  So interrogating him without advising him of his rights was illegal (and asking him "what are you doing here?" qualified as an interrogation, as did asking him questions about the "stuff" he was there to check on and whose it was).  Also, the court held that the statements he made while laying face down on the ground while an officer stood over him with a gun pointed at him were involuntary.  Go figure.

   Here's the way the court put it: "if police officers choose to use forceful methods to detain a suspect for investigation, they must back off before interrogating him."

   As far as the second (post-Miranda) interrogation, the court held that this interrogation was so closely connected to the coercive pressures of the first one that the Miranda warnings weren't enough to save it.  Essentially, everything in that interrogation was held to be involuntary and was suppressed.

   Purdue's conviction was reversed, and the case was remanded for a new trial without Purdue's incriminating statements.