Tuesday, August 31, 2010

Tenth Circuit Mascorro v. Billings 10-7005

Decision here.

   In this case, Deputy Billings saw his 17 year old neighbor driving without headlights.  Billings had had previous enforcement contact with the kid, and thought he might have drugs (although there was no PC for this; all he had was traffic charges).  He tried to make a traffic stop, and the kid instead drove home and then ran into his house and hid.  There is no mention in the decision of any recklessness that would have given rise to eluding charges.  The house apparently only has one entrance (maybe it was a really little apartment?).

   Deputy Billings started banging on the door and demanding that the occupants come out.  Christina and Jose Mascorro (the kid's mom and step-dad) answered the door.  Billings gun-pointed them, demanded to know where that little motherfucker was, etc.  According to Billings' testimony, Christina tapped him in the chest with her finger at some point.  Christina, Jose, and their 14 year old kid were all pepper sprayed, and Billings made entry into the residence over their objection, kicked the bathroom door in, and arrested the 17 year old who was hiding there.  The Mascorros were transported to a hospital for treatment of their pepper spray (apparently over Billings' objection...) and then taken to jail where they were charged with interference.  Christina was also charged with aggravated assault on a peace officer for tapping Billings' chest with her finger.

   At some point during all of that, officers from the local PD arrived to assist.  Testimony conflicts as to when they arrived... the Mascorros say they were there the whole time, the officers say they showed up when shit was already out of control.

   Anyway, all charges against the Mascorros were dropped because the court held that there were no exigent circumstances justifying the entry into their home.  The Mascorros sued, and the officers involved tried to invoke qualified immunity.  The court denied qualified immunity, and the officers appealed.

   The Tenth Circuit affirmed, holding that although there was probable cause to arrest the juvie for a traffic offense, this offense was not serious enough to create exigent circumstances on it own.  Hot pursuit is generally applied to fleeing felons, although it can also apply to misdemeanants (I think the court made that word up) if there are additional aggravating factors.  Hot pursuit into a suspect's home can overcome the presumptive unreasonableness of in-home arrests when it is necessary to prevent the destruction of evidence, or when there is a substantial flight risk, or when the offense is serious, or if there are other officer or public safety concerns.  Given that the suspect in this case was fleeing from a warrantless arrest for a minor traffic charge, and that he was already identified, and that he fled into a house with no other exit, and that there was no articulated danger to the public, the court was having none of this hot pursuit.  The court held that Billings' entry into the home was unreasonable, and that any reasonable officer in his place would have known this, so he was denied qualified immunity.

   There's more.  The court held that whether or not the other officers had participated in this violation of a clearly established right was a question of fact rather than a question of law (it depends on when they showed up, and that fact is in dispute).  So they were also denied qualified immunity.

   Sometimes we are our own worst enemies.

Tuesday, June 1, 2010

US Supreme Court Berghuis v. Thompkins 08-1470

Decision here.

   Thompkins was the passenger and shooter in a drive-by in Michigan, hitting two victims.  One of his victims died, the other survived (and later testified against him, identifying him as the shooter).  Thompkins stripped and abandoned the van and fled the state.  He was apprehended in Ohio, and two Michigan detectives interrogated him there.

   At the beginning of Thompkins' interrogation, he was advised of his Miranda rights.  He was given a form with the standard warnings, he read one of the warnings out loud and a detective read the rest of them.  He refused to sign the form, and there was conflicting testimony as to whether or not he verbally acknowledged that he understood his rights.  Thompkins was then interrogated for about three hours.  He didn't speak much at all during the entire interrogation, but in the last fifteen minutes one of the detectives asked him if he prays to God for forgiveness for shooting that boy down.  Thompkins answered "yeah."

   Thompkins was later convicted of first degree murder (among other things).  Evidence of his confession was used against him at trial, as was the testimony of the driver (who had been convicted of violations of some firearms laws, but acquitted of the murder).  Thompkins appealed his conviction.  He argued that his confession (such as it was) should have been suppressed because by remaining silent during the interview he had invoked his Miranda rights, or alternately that the police should not have interrogated him because he did not waive his Miranda rights (there's a subtle distinction there).  He also argued ineffective assistance of counsel based on a minor flaw with the jury instructions which his lawyers didn't catch (the Supreme Court held that this lacked merit because there was plenty of evidence with which to convict him).

   The US Supreme Court upheld Thompkins' conviction, and clarified some issues surrounding Miranda advisements.

   The Court had previously ruled that when a suspect invokes his Miranda rights, the police must stop the interrogation.  Previous decisions had also held that when an invocation of the right to counsel has to be made unequivocally.  If a suspect makes an ambiguous or unclear reference to this right, then the police are not required to stop the interrogation or to clarify the suspects intent.  In this decision, the court extended that same reasoning to the right to remain silent; in order for a suspect to stop an interrogation he must clearly state that he wants a lawyer or that he is invoking his right to remain silent.  Simply remaining silent does not end the interrogation.

   On the other hand, simply remaining silent is also not an effective waiver of one's rights.  In order for a waiver of one's rights to be valid, it must be voluntarily (meaning "the product of a free and deliberate choice rather than intimidation, coercion, or deception"), and the waiver must be made "with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it."  But there is no requirement that the waiver be expressed, a waiver of ones rights can be implied by ones actions.  The court held that there was no evidence of coercion during this interview (there was nothing inherently coercive about the three hour length of the interrogation, no other coercive tactics employed, and Thompkins wasn't in fear of the detectives.  The detective's reference to God also did not render the confession involuntary; the court pointed out that "the Fifth Amendment privilege is not concerned 'with moral and psychological pressures to confess emanating from sources other than official coercion.").  The court also held that there was sufficient evidence that Thompkins understood his rights (and his understanding of his rights was never disputed at trial), and that by answering some of the detectives' questions (even if it was after almost three hours), he engaged in a course of conduct which implied a waiver of his rights.  All of this was enough to satisfy the requirements of Miranda.

Tuesday, February 16, 2010

Colorado Supreme Court People v. Disher 07SC1088

   Decision here.

   Disher, who had been dating M.P., called her over 100 times between a couple of days less than a month after the two of them broke up.  He also showed up at her workplace, but left when asked to.  Then he came into her apartment, refused to leave when asked to, and got into an argument with her.  M.P. went outside and found a security guard who she asked for help.  The security guard tried to remove Disher from M.P.'s apartment, but Disher called 911 (dumbass!).  The police showed up and arrested Disher after a brief struggle.

   At the trial, M.P. testified that she and Disher had dated exclusively, but did not testify that they had had a sexual relationship.  Disher was convicted of harassment and obstructing an officer, but because there was no evidence that M.P. and Disher had been sexually intimate, the court held that this was not a crime of domestic violence.  The people appealed.

   The relevant portion of the Colorado DV statute define domestic violence as "an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship. 'Domestic violence' also includes any other crime against a person, or against property, including an animal, or any municipal ordinance violation against a person, or against property, including an animal, when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship."  And intimate relationship is defined as "a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time."

   The court held that nowhere in all of that does it say that sexual intimacy is a prerequisite of an intimate relationship.  The court held that sexual intimacy may be an indicator, but not a requirement.  The court described that in order to qualify as an intimate relationship, the  relationship must be more than that of a roommate, friend, or acquaintance; there must be a romantic attachment or shared parental status between the parties.

   (I've known some officers who take the "sexual intimacy" misunderstanding even farther, and believe that it is the final test whether or not there is an intimate relationship.  I once heard one such officer explain straight faced to a suspect that if someone sleeps with a hooker who he has never met, and then sees her again years later and gets in a fight with her, that this is DV.  Although that wasn't quite the issue before the court in this case, I think the court's decision makes it pretty clear that circumstances like that would not fall under the DV statute.  This is why I don't ask people in possible DV cases if they have been sexually intimate, I usually just ask if they were ever a couple.)