Thursday, February 28, 2013

Tenth Circuit US v. Bateman 11-4054

Decision here.

   Bateman was pulled over for a cracked windshield.  The officer suspected that Bateman was drunk, and got him out of the car for FSTs.  Bateman was generally uncooperative and may have resisted arrest (the decision only alludes to some of the most important facts here and doesn't really put them in context.  Strange that the court would do that, since the stop was recorded, but whatever.  At some point Bateman pulled his hand away from the officer and said "No" while the officer was trying to put him in some kind of wrist lock.  But at a later point, Bateman put his hands on the car and said "I'm not resisting.")

   Eventually, Bateman was thrown to the ground and suffered a traumatic brain injury.  He sued the officer and the department.  The trial court dismissed the suit based on qualified immunity, and Bateman appealed.

   The tenth circuit held that there was a legitimate factual dispute over whether or not the force used was excessive, but that whether or not the level of force used would have been excessive hadn't been clearly established in 2005 (when the stop took place).  The court made a point of mentioning that this case was decided before Novitsky v. City of Aurora (which related to the amount of force that can reasonably be used against intoxicated people.  It's one of those that I'll eventually be adding to this website).  I don't think Novitsky is all that on point, but apparently the tenth circuit wanted to draw parallels.

   Anyway, the Tenth held that the officer was entitled to qualified immunity because this happened before Novitsky, but that the lawsuit against the city can proceed.

Tuesday, February 26, 2013

Colorado Supreme Court People v. Theander 12SA123

Decision here.  This one hits on a couple of separate (but related) interrogation issues.

   Stephanie Theander's ex-husband was found stabbed to death, and his new girlfriend told the police that she though Theander was involved.  Later in the morning, Theander attempted suicide by overdose.  Police officers (who knew that Theander was a homicide suspect) assisted EMTs on that call.  The semi-conscious Theander was taken to the hospital by ambulance.  A cop rode with her, but she was so out of it that she probably didn't know that.  She probably also didn't know that while she was at the hospital, the police ordered a SANE exam, disconnected the phone in her room, and had her admitted to the hospital under an alias (which eventually prevented her family and their lawyer from contacting her to tell her not to talk to the cops).

   Theander didn't properly wake up until 11 at night.  She was still being guarded by a uniformed officer at that time.  When she finally woke up, had something to eat, and seemed coherent, plainclothes officers arrived to interrogate her.  She was not given Miranda warnings, but the tone of the interrogation was polite and conversational with open-ended questions.  One of the officers was about 12 inches from Theander the whole time, but that was only because she was speaking very quietly.  During the interrogation, she admitted that she had let some guy named Rick into her ex's house (Rick was there to hurt Theander's ex, and in exchange Theander was going to sleep with Rick).  She claimed that she didn't actually kill Theander, though.

   Towards the end of the interview, she asked a couple of times to talk to a lawyer.  The cops told her that she was welcome to do so, reminded her that she wasn't in custody, and kept on talking to her.  They got a little more information about Rick, and then concluded the interview.

   The next morning, one of Theander's family members told the police not to talk to her and that he was trying to hire a lawyer for her.  This family member hadn't actually spoken with Theander about any of this.  The cops went back to talk to Theander some more in the afternoon.  Still no Miranda warnings, although they reminded her that she was not in custody.  She asked for a lawyer a couple more times, and asked the police to leave her alone.  After urging her to talk to them, they left her alone.

   A week later, Theander was arrested for first degree murder and first degree burglary.  The trial court suppressed her statements, finding them involuntarily made and finding that Miranda was violated.  The prosecution appealed.

   The Colorado Supreme Court ruled that Theander was not in custody.  They contrasted this case with Effland v. People, a recent case where they held that a hospital-bed interrogation was custodial.  Unlike Effland, in this case the police never restrained Theander, the interrogation was polite, the officers were in plain clothes, Theander was repeatedly told she wasn't in custody and that she could talk to a lawyer, etc.  Also, Effland had repeatedly requested a lawyer and asked to terminate the encounter.  Theander asked a couple of times, and her requests to be left alone were honored much more quickly.  And some of the factors which the trial court relied on to show that Theander was in custody (like the disconnected phone and the cop riding in the ambulance) were things which Theander was not aware of and therefore they were irrelevant to custody analysis.  After all, the important question for Miranda is whether a reasonable person would perceive... (you know the rest, right?).  Circumstances that a person isn't aware of don't affect what they would perceive.

   Next, the Court moved on to whether or not the statements were voluntary.  Even if someone isn't in custody, or even if they are and they waive Miranda, their statements still can't be used against them if the statements are involuntary.  The test for voluntariness is whether or not coercive conduct by the police played a significant role in inducing the statements.  Specifically, the courts have to ask whether or not "the defendant's will has been overborne."

   The decision gives a few examples from other cases of coercive conduct that renders statements involuntary: threatening to take the defendant's children; threatening immediate arrest, a high bond, and prison unless the defendant confessed; threatening charges against a family member; offering to try to get the defendant's boss to re-hire him if he confessed; offering to let the defendant see his girlfriend if he confessed.  There's more in the decision, but the point is that we really aren't allowed to either bribe or browbeat  people into confessing.  It has to be said.

   But in this case, the sort of mild psychological pressure that the cops used (things like asking Theander to give more info so they could tell her children that she was cooperating) wasn't coercive.  And even if it was, it didn't play a significant role in getting Theander to incriminate herself.  So her statements were not involuntary.

   The suppression order was reversed, and the case sent back to the lower courts for more proceedings.  Theander also argues that the police denied her access to counsel, but the Supreme Court didn't decide that question one way or the other.  

Wednesday, February 20, 2013

United States Supreme Court Bailey v. US 11-770

Decision here.

   The police had obtained a search warrant for an apartment where they expected to find a gun and drugs.  While the search team was making preparations, a couple of detectives in an unmarked car conducted surveillance.  They saw Bailey and another guy leave the apartment and drive away.  The detectives followed the suspects for about five minutes and stopped them a mile away while the search team hit the residence.

   The detectives stopped Bailey and his friend incident to the search warrant, based on the Summers rule.  I'll talk more about that in a second.  They were searched and handcuffed, and the officers took a set of keys from Bailey.  Both guys initially said they were coming from Bailey's house, but when they found out it was being searched Bailey changed his mind and said he didn't live there.  The detectives called for a marked car to transport Bailey and his friend back to the apartment (for some reason, one of the detectives drove Bailey's car back to the scene).

   When they got there, they learned that a gun and drugs had, in fact, been found.  Bailey was arrested, and now his keys were seized incident to arrest, and the detectives found that one of the keys fit the front door (I think the keys had already been seized and the cops were just trying to justify the seizure after the fact, but that issue wasn't before the court; the Justices wanted to talk about something else that went wrong in this case).

   Going back to Summers for a second... in that case, the Supreme Court ruled that when the police execute a search warrant, they can detain anybody who is in the immediate vicinity, even if they don't have a specific reason to suspect that person of involvement in a crime.  The three justifications for this rule are: 1- Officer Safety (the police can exercise control over the scene to prevent the occupants from being dangerous, disruptive, going for help, etc..), 2- Facilitation of the search (the police can detain people so that they don't just sneak away with whatever contraband the police are looking for, or otherwise interfere with the search), and 3- Preventing flight (the police can detain people during the search so that they don't take off once they see that incriminating evidence is found).  The Summers decision also pointed out that if someone's house is already being searched, then the additional intrusion of detaining that person there is minimal.

   The trouble with this case is that none of those rationales apply to detaining someone a mile away from the scene of the search.  Bailey, who didn't even know about the search, didn't pose any immediate danger to the search or to the officers conducting it.  And although allowing him to leave could potentially mean that the officers wouldn't have found him later, the court pointed out that you could use that kind of reasoning to detain anyone with any connection to the house, no matter where they happened to be at the time.  That isn't what the Summers rule was intended for.

   So the court held that the Summers rule is constrained by location: a person who is in the immediate vicinity of the premises being searched pursuant to a warrant may be detained, one who is not in the immediate vicinity may not be detained unless there's another justification.  Also, while being detained in your already-being-searched home isn't all that intrusive, being pulled over a mile away, searched, handcuffed, and transported against your will is pretty damn intrusive.  The Summers rule did not apply here.

   Since Bailey was well outside of any reasonable understanding of "immediate vicinity," the court didn't narrow down exactly what they mean by that.  They did say that the factors to consider include the limits of the premises, whether or not the person is in line of sight of the dwelling, and how easy it would be for the person to re-enter the premises.  But Bailey was too far away for any of that to be a consideration.  This case was sent back to the court of appeals for a ruling on whether or not Bailey's initial detention was justified under Terry.

United States Supreme Court Florida v. Harris 11-817

Decision here.

   Ofc. Wheetley was a K9 handler who stopped Harris for having an expired license plate.  During the stop, Harris refused consent to search his car so Wheetley walked his dog (Aldo) around the car.  When Aldo alerted to the door handle, Wheetley searched the car and found meth precursors (it's worth noting that Aldo was trained to detect meth, but not meth precursors).  Harris was arrested.  After waiving Miranda, Harris admitted that he routinely cooks meth and that he can't go for more than a few days without using.

   Later on, Wheetley stopped Harris again.  Aldo alerted to the door handle again, but this time nothing was found.

   Harris moved to suppress the results of the search, arguing that Aldo's alert was not probable cause.  At trial, the prosecution presented evidence of Aldo's and Wheetley's ongoing training and testing (during which Aldo apparently did very well).  The defense didn't attack the training, focusing instead on Aldo's field performance and especially on the two false alerts with Harris.  Eventually, the Florida Supreme Court ruled in favor of Harris, finding that in order to establish probable cause the prosecution had to present a laundry list of items including training and certification records, explanations of those records, and especially records of field performance.  The court was very concerned with numbers of false positives, and held that without every item on the list there was no way to establish probable cause.  Since Wheetley didn't keep exhaustive field performance records, the court held that Aldo could therefore never establish probable cause.

   The US Supreme Court reversed that.  This decision discusses the nature of probable cause, specifically that "probable cause" describes a fair probability, based on the totality of the circumstances.  It is not reducible to precise definition, it doesn't lend itself to checklists or mechanical tests, and it's not so rigid a standard as proof beyond reasonable doubt or preponderance of the evidence.  In the context of a search, an officer has probable cause when the facts available to him would a warrant a person of reasonable caution in the belief that contraband or evidence of a crime is present.  The court also mentioned that probable cause is not applied in hindsight: you can't decide whether or not there was probable cause based on whether or not something was found.

   Relating all that to drug dogs, the Court held that the prosecution doesn't have to present a specific list of items in order to show PC.  They should present what evidence they have, and the defense can attempt to refute that or present their own evidence, but there isn't a particular list of criteria (like field performance records) which have to be met.  Also, the US Supreme Court criticized the Florida Supreme Court for it's fascination with field performance records.  The Court noted that while they can certainly be evidence, they aren't really all that reliable compared to training records.  The reason for that is that training and evaluation is conducted in a controlled environment, where the accuracy of the dog's alerts can actually be determined.  Field records probably won't reflect the dog's false negatives.  More pertinent here, false positives may not be false: the dog may have alerted to drugs that were hidden too well for the handler to find, or the dog may have alerted to the odor of drugs which were present but no longer are (such as all the meth that Harris admitted to doing).  The court reasoned that neither of those circumstances would be an error on the dog's part, although it would be recorded as one.  Hence the unreliability of field performance records.

   In this case, the Court ruled that there was ample evidence from Aldo's training to show that his alert created a fair probability that contraband would be found (or, as the Justices put it, his sniff was up to snuff).  The suppression of the evidence was reversed.

Thursday, February 14, 2013

Tenth Circuit US v. Garcia 11-2233

Decision here.

   Police received information from a reliable informant that Garcia had a lot of meth in his trailer.  A more-than-personal-use amount.  A few days later, the investigating agent obtained a search warrant based on this information.  The affidavit for the warrant included an accurate description of Garcia's trailer, a photograph of Garcia's trailer, and the incorrect address for Garcia's trailer.  A warrant was granted, commanding the police to search the trailer "forthwith."

   A different cop supervised the search of Garcia's trailer, nine days after the issuance of the warrant.  Prior to conducting the search, he noticed that the address on the warrant was actually the address for a different building.  He assumed that Garcia's trailer and the other building must share an address, and he searched Garcia's trailer (he knew which one to search because of the description, the photograph, and because the investigator had pointed it out to him).  They found a lot of meth, which Garcia was trying to put into the garbage disposal. 

   In court, Garcia moved to suppress the meth.  He argued that the search warrant was stale and therefore invalid, and that the search warrant listed the wrong address and was therefore invalid.  The trial court denied his motion, and he appealed.

   In its decision, the Tenth Circuit explains the idea behind staleness in search warrants: a search warrant is only valid for as long as the information in the affidavit supports probable cause to believe that whatever you're looking for will be found when the search is conducted.  So timing can be a sensitive issue... if you're searching for something that can easily be removed from wherever it's hidden, then you'd have to either move pretty quickly or have a good reason to believe that it's not being moved.  But timing isn't always critical.  In cases where the affidavit indicates ongoing criminal activity (such as continuous drug trafficking from a residence), time is less critical because it's expected that due to the ongoing nature of the crime there will still be evidence to be found.

   In addition to the above requirements, there are limits on how long a search warrant is valid written into the rules of evidence (for the feds it used to be ten days, but now it's fourteen.  Same goes for Colorado).

   So Garcia argued that the information in the warrant was stale (both because the cops waited three days to get a warrant, and because they waited nine to serve it).  The Court held that due to the continuous nature of drug trafficking the warrant was not stale.  Garcia also argued that the word "forthwith" in the search warrant was a special command from the judge to get on it right away.  The Court recognized that "forthwith" is just anachronistic standard language on the form that New Mexico uses for search warrants, and therefore it was not a special command, and that even if it had been it wasn't important.

   That leaves the whole "wrong address" issue.  There's no getting around that the affidavit lists the wrong address, but it also contains a pretty detailed description (and picture) of the right address.  The test that the court uses to determine whether a warrant particularly describes the place to be searched is whether the description would allow an officer to identify the correct place with reasonable effort, and whether or not it's reasonably likely that the wrong place will be searched.  In this case, even though there was an incorrect address, there was plenty of correct information which narrowed the search down to the right place.  So the warrant was good enough for government work.

   And that means that the evidence was admissible, and Garcia's conviction was upheld.

Monday, February 4, 2013

Colorado Supreme Court Webb v. Black Hawk 11SC536

Decision here.

   This is one of those decisions where you would swear that judges are paid by the word... here's the short version: Black Hawk had a law which prohibited people from riding bikes through their city.  The ordinance only applied to people who entered the city on bicycles.  People whose trip originated within the city could ride wherever they wanted, but people who rode in from somewhere else weren't allowed to pass through Black Hawk.  Pretty stupid, right?  It's even stupider considering that it conflicts with state traffic regulations (you can't prohibit bikes on a street unless you provide an alternate path, which Black Hawk did not.  Black Hawk's solution was to simply un-enact that portion of the state law within their boundaries).

   Anyway, some cyclists did ride through Black Hawk as part of a long distance ride that began in Golden.  They were stopped and ticketed.  They fought the charges, and the muni court found them guilty (although it did strike down the exception for local cyclists, meaning that now the law would have to apply to everyone).  They appealed all the way to the state Supreme Court.

   The Supreme Court held (using every conceivable rationale, and a lot of extraneous information) that bicycle regulation is a matter of both local and statewide concern, that the Black Hawk bike ban was in conflict with state law, and that since this is not a purely local matter the state law trumps the local law.  Therefore the bike ban is unconstitutional.

   ...but the Supreme Court said it in 7,681 words!