Wednesday, May 28, 2014

Colorado Supreme Court People v. Begay 14SA18

Decision here.

   This case reads a little like it was written by a teacher who is getting impatient after having tried to explain the same concept thirty times.  For whatever reason, trial courts screw this one up A LOT.

   Anyway, someone known to the victims as "Rabbit" tried to strangle a couple of people at a park in Boulder.  Responding officers aired a description of Rabbit, who had left the area with someone named Bo.  Shortly afterwards, three plainclothes officers spotted a couple guys who matched the suspect description.

   One of the officers called out "Hey Rabbit," and then Rabbit approached him in a friendly manner and tried to hug him.  The officers identified themselves and instructed Rabbit to sit down.  While they were waiting for the victim to arrive for a show-up, they asked Rabbit (whose real name is Begay) why someone might have reported that he was involved in a strangulation.

   Begay claimed that Bo had been attacked and that he had intervened.  Bo denied that any altercation had happened.  And then the victimes identified Begay as their attacker.  He was subsequently arrested for assault.  He moved to suppress his statements, since he had not been read his Miranda rights at the time that he made them.

   The trial court suppressed Begay's admission that he had been involved in an altercation, and the people filed an interlocutory appeal.  The reasoning the trial court used was that Begay would not have felt free to leave, and that if he had tried to leave then the police would have stopped him.  Both of these lines of reasoning are incorrect.  

   What the officers would have done if Begay tried to leave is irrelevant, unless the officers told him what they would have done.  Custody for Miranda purposes is an objective question, so the subjective intent of the officers doesn't matter.  What matters is what they actually said and did.

   The other mistake the trial court made is a really common one, though.  The trial court applied Fourth Amendment reasoning to a Fifth Amendment question.

   The Miranda warning requirement is designed to protect a suspect's Fifth Amendment right against self incrimination.  Whenever a suspect is subjected to custodial interrogation, the police are required to warn him of his rights.  Everyone agrees that Begay was being interrogated (the police were asking questions to elicit incriminating information).  The question is whether or not he was in custody at the time.

   The trial court held that because he would not have felt free to leave (or otherwise terminate the encounter), he was in custody.  But it doesn't matter whether or not Begay would have believed that he was free to go; that's only important in determining whether or not someone is seized for Fourth Amendment purposes.  Miranda custody is determined by asking whether or not someone's freedom has been interfered with to the degree associated with formal arrest.  In this case, it had not.  Begay had been instructed to sit down, but he had not been searched, had not been handcuffed, had not been told he was under arrest, was not in a police dominated atmosphere, the police were speaking to him in friendly tones, he had only been detained for a few minutes, he wasn't taken to a different place by the police... the list goes on.  Although Begay was seized for Fourth Amendment purposes (he was clearly being detained), none of that says "under arrest."  He was not in custody for Miranda purposes.

   The Supreme Court reversed the suppression order.

Colorado Supreme Court People v. McIntyre 13SA235

Decision here.

   McIntyre was accused of fondling his ten year old niece.  After speaking to a detective (and denying the allegations), he agreed to meet with another deputy to take a lie detector test.  Prior to the administration of a lie detector test, the deputy talked to McIntyre about the way the test would be run (things like the need to tailor the questions to the allegations in a very specific way), the legal ramifications of taking or not taking the test, what McIntyre remembered about the incident, how much the test would cost and whether it would be admissible or not, etc, etc, etc.  Not all of what the deputy told McIntyre was accurate.  For example, he told him that the test would not be used in court unless McIntrye wanted it to be (when it actually would be per se inadmissible).  He told him that the test was very expensive, but that he wouldn't have to pay for it unless he was found guilty and they came after him for the fees (when in truth he wouldn't have to pay for the test under any circumstances).  

   The deputy also suggested that they weren't trying to ruin his life, and that they were interested in treatment and rehabilitation in cases where it's appropriate.  He made some statement that could be looked at as being promises of either leniency or immunity if taken out of context.  But all of this was peppered with copious reminders of McIntyre being free to leave, of the deputy's plan to discuss this interview with the detective, Miranda warnings, and explanations that the deputy couldn't make any legal promises.  Also, the deputy didn't actually promise leniency or immunity at any point.

   The lie detector test never happened.  McIntyre made some incriminating statements without it, wrote a letter of apology to his niece, and then made an appointment for another interview with the detective (but by then, he had a lawyer and didn't want to talk).

   The trial court suppressed McIntyre's incriminating statements, holding that they were involuntary because of some implied promises of immunity made by the deputy who was going to run the lie detector.  The people filed an interlocutory appeal, and the Colorado Supreme Court reversed the suppression order.  The Court held that under the totality of the circumstances, McIntyre's statements were voluntarily made and not the result of police coercion.

US Supreme Court Plumhoff v. Rickard 12-1117

Decision here.

   A police officer pulled Rickard over for having a broken headlight (there was also a suspicious head-sized indentation in his windshield).  Rickard had a passenger.  Rickard was acting nervous, didn't provide identification, and when he was told to get out of the car, he sped away.

   This began a high-speed chase which lasted five minutes and exceeded 100 mph.  During those five minutes, Rickard and the pursuing officers passed over a dozen other motorists.  Eventually, Rickard lost control of his car after being struck by one of the pursuing police cars.  His car was pinned by bumper-to-bumper contact with a police car, and officers approached on foot.  He kept accelerating and rocking his car to try to break free of the pin, and one of the officers fired three shots into the car.

   Rickard broke free of the pin, and started to drive away again.  Officers fired on the car 12 more times.  Rickard continued to flee, but crashed shortly afterwards.  Both Rickard and his passenger died from a combination of gunshot wounds and injuries from the car crash.  Rickard's family sued the police, arguing that they used excessive force.  After lower courts denied the officers qualified immunity, this case made it all the way up to the Supreme Court.

   There were actually two parts to the excessive force argument: the first was that the police violated the Fourth Amendment by using deadly force to end the pursuit.  The second was that even if the police could reasonably have used deadly force to end the pursuit, firing on the car 15 times was excessive.

   The Supreme Court held than in light of Rickard's extreme reckless driving during the pursuit, he posed a grave risk to public safety.  At the time that the shots were fired, it was apparent that even though he had crashed Rickard was intent on continuing his flight.  A reasonable officer would have concluded that if allowed to flee he would continue to endanger the lives of others.  The police acted reasonably when they used deadly force to terminate the pursuit.  Regarding the firing of 15 shots, the court said "It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended."  In this case, all of the shots were fired within about a ten second time frame.  After the last shots were fired, Rickard still fled a short distance before crashing.  The threat had not ended.

   The Court held that the police did not violate Rickard's Fourth Amendment rights by using deadly force to end the pursuit.  The Court chose not to express an opinion on whether or not his passenger's rights were violated (the lower courts have gone both ways in similar cases), but that's not at issue in this case; Fourth Amendment rights are personal rights which can not be vicariously asserted.  Rickard's estate can't sue on the basis of Rickard's passenger's rights, and even if the force used against her were unreasonable this does nothing at all to enhance Rickard's rights or render the force used against him unreasonable.

   In addition to ruling that the police did not violate Rickard's rights, the court ruled that even if they had the officers would be entitled to qualified immunity because there was no case law clearly establishing that they couldn't use deadly force to end a pursuit. 

US Supreme Court Wood v. Moss 13-115

Decision here.

   During a campaign trip, President Bush and his motorcade were driving down a particular street in Jacksonville, Oregon.  There were demonstrators on both sides of the street (pro-Bush on one side, anti-Bush on the other).  Bush made an unexpected decision to have dinner at a restaurant with a patio.

   With the change in plans, the anti-Bush demonstrators were now within weapons range of Bush with an unobstructed line of sight.  The pro-Bush demonstrators were not.  The anti-Bush demonstrators were required to move (twice) for security reasons.  When the motorcade eventually continued, it passed by the location where all the demonstrators originally had been, but now that they had been moved the anti-Bush demonstrators were a couple blocks away from the motorcade.

   They sued the secret service agents, alleging violation of their First Amendment rights.  The agents tried to claim qualified immunity, but the Ninth Circuit wasn't having it.  The agents appealed.

   The First Amendment doesn't allow the government to interfere with someone's speech because the government doesn't like what that person has to say.  But it also doesn't guarantee people the right to publicize their message wherever, whenever, and however they wish.  In a case like this, where there is a legitimate security reason for moving a group of protesters, the government is allowed to do so.  The Ninth Circuit had denied qualified immunity because only the protesters were moved (while the Bush supporters were allowed to remain where they were and eventually had better access to the president because of that).  But there is no case law which establishes any responsibility on the part of the secret service to keep groups with opposing views equidistant from the president in the case of sudden changes of plans.  There's also no case law which establishes any responsibility of the government to restrict a second group's speech absent a security concern just because a first group's speech has already been restricted because of a security concern.  And in this case, there was never any valid security reason to move the pro-Bush demonstrators.

   The Supreme Court held that the agents were entitle to qualified immunity, reversing the judgment of the Ninth Circuit.

Tuesday, May 20, 2014

Colorado Supreme Court People v. Webb 14SA37

Decision here.

   Webb's adult son lived with her while he was on parole.  During a home visit from the parole officer and a cop, spoons with meth residue were found under his bed and he was determined to be under the influence of meth (as was a guest, who was in possession of syringes that tested positive for meth).  So the cops seized the paraphernalia and then got a warrant to search the house for more.

   At the beginning of the next search, they told Webb that she could leave if they wanted.  She chose to leave, and wanted to take her purse with her.  An officer went into her unlocked bedroom with her to retrieve the purse, and told her they were going to have to search it before she left with it.  A search of the purse revealed straws with meth residue.  More meth paraphernalia (with residue) was found elsewhere in her room.

   Webb was charged with possession of methamphetamine and drug paraphernalia.  She moved to suppress the evidence found in her bedroom.  The trial court accepted that the search of the bedroom was reasonable, but held that because she had a heightened expectation of privacy in her purse the search of the purse was unreasonable.  The People filed an interlocutory appeal.

   The Colorado Supreme Court held that the search of the purse was reasonable, but they used a couple of different rationales to get there.  On one hand, they pointed out that once a warrant has been obtained, the scope of a search is defined by the scope of the warrant rather than by any person's expectation of privacy.

   The court also discussed the actual parameters of a search of a house pursuant to a warrant (this is the part that threw me, I thought the other explanation was much easier to grasp).  Basically, if the police have a warrant for a house then they can search any areas of the house which the suspect (defined as the person whose actions gave rise to the probable cause justifying the search) has the ability to access.  Since Webb's bedroom was not locked, her son would have had the ability to access it (to include her purse).  And since the purse was capable of hiding the contraband named in the warrant, the search of the purse was valid.

   The suppression order was reversed and the case was sent back to the trial court for further proceedings.

Monday, May 19, 2014

Tenth Circuit US v. Garcia 13-2155

Decision here.

   Garcia was a passenger in a car that Ofc. Devos was towing.  He was towing because the windshield was too badly cracked for it to be safely driven (hence the traffic stop in the first place), and the driver was under arrest for driving on a suspended license (and for giving Devos a fake name, although the name he gave also came back to a suspended license).

   Garcia and Devos knew each other.  Devos knew that Garcia was a drug user with a conviction for armed robbery.  Two weeks ago, Devos had chased Garcia down an alley on foot while trying to arrest him for a warrant.  At the end of that chase, Garcia had turned to confront Devos with his fists up, and Devos had tased Garcia.

   The current traffic stop was taking place during the night on a road in the middle of nowhere, and there was no other officer available to assist Devos.  In light of all of the above, he decided to search Garcia before turning his back on him for the inventory.  During the search, he found a handgun magazine.  He handcuffed Garcia, had him sit on the curb, and then released him after the inventory.  Later, he arrested him for being a felon in possession of a weapon (based on the magazine).

   Garcia moved to suppress, arguing that the pat down was unjustified.  The Tenth Circuit held that under the totality of the circumstances, Devos had reason to believe that Garcia was dangerous and that he had the ability (based on his criminal history) to procure a weapons.  So the search was upheld.

   There's a dissenting opinion that would have suppressed the search, holding that Devos knew Garcia was dangerous but didn't have reason to believe that he was armed.  The majority opinion criticizes the dissent for isolating the
"armed" and "dangerous" prongs of the test from each other, and for ignoring the effect that one prong can have on the other (meaning that an officer's knowledge that someone is dangerous may suggest to them that that person is armed, or vice versa).  

   From a law enforcement perspective, it's obvious that Devos did the right thing.  I'm not interested in turning my back on someone who tried to fight me a couple weeks ago without first searching and cuffing him, either.  But the fact that this opinion had a dissent does show the importance of being able to properly explain our actions, and also shows that even something as entrenched as a Terry search could get screwed up tomorrow.

Tuesday, May 6, 2014

US Supreme Court Tolan v. Cotton 13-551

Decision here.

   Tolan and his cousin were driving to Tolan's house in a black Nissan.  As they got out of the car, an officer cleared the plate through NCIC.  Or he thought he did... he actually had a typo in the plate number.

   The incorrect plate number came back to a stolen vehicle of the same make and model.  And what happened next was a MESS.  Tolan and his cousin were given orders at gunpoint to get on the ground, more officers responded to assist, Tolan's parents came out of the house to voice their objection (calling out to the officers with hands up, saying that Tolan was their son, that was their car, the car wasn't stolen, etc..).  Basically a high-risk stop gone bad because of a lot of interference and limited compliance.

   Tolan's mother didn't comply with instructions to stand by the garage door, so Sgt. Cotton physically moved her out of the way.  There's conflicting testimony as to how much force he actually used, but the worst version says that he shoved her against the door hard enough to leave bruises.  Then Tolan got to his feet (or to his knees, depending on who you believe) while telling Cotton "get your fucking hands off my mom."

   Then Cotton shot Tolan.  Because we don't do less lethal force in Texas?  I don't know, but Tolan survived (with a life-altering injury).  Cotton was indicted for (and later acquitted of) aggravated assault by a public servant.  Tolan & family sued.

   The trial court and the Fifth circuit each held that Cotton was entitled to qualified immunity.  The trial court held that the force used was reasonable, and the Fifth held that whether or not the force used was reasonable, Cotton did not violate any of Tolan's clearly established rights.  I haven't read those decisions, so I can't speak to how they arrived at those conclusions.

   The US Supreme Court held that the Fifth circuit did not view the facts in the light most favorable to Tolan, the plaintiff (which the courts are required to do when deciding whether or not to grant qualified immunity).  Expressing no opinion of the reasonableness of Cotton's actions, SCOTUS simply vacated the decision of the lower court and sent it back for them to decide again using the correct standard.

Colorado Supreme Court People v. Knedler 13SA292

Decision here.

   Knedler sometimes lived under a bridge with two other people, perhaps because the money that might have otherwise paid for a home was going towards alcohol (by his own statements, he drank about a case plus a pint of alcohol every day).  One day Knedler beat the crap out of his, uh... roommates with a stick.  He was arrested later, whilst drinking at a hair salon where he also lives sometimes.

   Couldn't have been a very upscale salon...

   Anyway, Knedler agreed to speak to investigators, but didn't want to talk in the police car.  The took him to headquarters and advised him of his rights.  He initialed every line of the waiver, said that he knew his rights, and went on to confess.  After his interrogation, the jail nurse gave him a breath test which registered a BAC of .284.  However, she noted that he was alert and oriented.

   At trial, Knedler moved to suppress his confession.  His argument was that the Miranda waiver was invalid because of his extremely high BAC.  The trial court agreed and suppressed the confession, and the people filed an interlocutory appeal.

   The Colorado Supreme Court reversed, holding that simply having a high BAC doesn't render a waiver invalid.  The question is whether a waiver is knowing, intelligent, and voluntary (knowing and intelligent mean that the waiver is made with full understanding of the right in question and of the consequences of abandoning it.  Voluntary means that the waiver is free from governmental coercion).  These questions require the court to focus not on what a breathalyzer says, but on what the facts show regarding the defendant's cognitive ability.  Someone who is lucid and rational can validly waive their rights no matter what their actual BAC is.

   The court described some of the factors used to weigh the ability of an intoxicated person to waive his rights as: 1- whether the defendant was oriented to his or her surroundings and situation; 2- whether the defendant's answers were the responsive product of a rational thought process; 3- whether the defendant was able to appreciate the seriousness of his or her situation and the possibility of incarceration; 4- whether the defendant had the foresight to attempt to deceive the police to avoid prosecution; 5- whether the defendant expressed remorse for his or her actions; and 6- whether the defendant expressly stated that he or she understood his or her rights.

   The court also listed the following factors which are used more generally to decide whether a defendant's waiver is knowing and intelligent: 1- the length of time between the initial Miranda advisement and the interrogation; 2- whether the defendant or the interrogating officer initiated the interview; 3- whether and to what extent the interrogating officer reminded the defendant of his or her rights before the interrogation; 4- the clarity and form of the defendant's acknowledgment and waiver; 5- the defendant's background and experience with the criminal justice system; and 6- any language barriers and the defendant's age, experience, education, background, and intelligence.

   Most of those factors weighed heavily in the prosecution's favor, and the court recognized (as it has repeatedly) that there's a wide individual variation in people's ability to function after heavy drinking.  Knedler's waiver was held to be valid, and this case was send back to the trial court.