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.

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.

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.

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
situation.

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.  

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.

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.

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.