Tenth Circuit Koch v. Dell City 10-6105

Decision here.

   An officer in Oklahoma arrests Koch for obstruction for not answering questions (he was asking about the whereabouts of an elderly woman in Koch's care for a welfare check).  Charges are dropped, and Koch sues.  The officer is somehow granted qualified immunity.  After this case, it's probably clearly established that you can't arrest someone for refusing to answer questions, so don't do that.

Tenth Circuit US v Chavez 10-2273

Decision here.

   This decision relates in part to a motion to suppress evidence, and in part to sentencing guidelines.  I'm really not all that interested in sentencing guidelines, so I'll only be discussing half of the case here.

   The facts: Police in New Mexico were dispatched to a call of a disturbance in a Wal-Mart parking lot, with people urinating and (gasp!) littering.  Officers arrived as Chavez was driving away, and a Wal-Mart employee flagged them down and pointed out the car that Chavez was driving away in.  Chavez was detained for the investigation of the disturbance.

   During the officers' contact with Chavez, they noticed indicia of intoxication and Chavez failed the field sobriety tests (much as I would right now, so you might have to forgive a little rambling).  Rather than arrest him for DUI, they threatened to arrest him and then asked for consent to search the car and interrogated him about the ownership of the car (Chavez said it was his friend's car, but the registration listed to another name that Chavez was unable to explain).  At various points during the investigation, Chavez consented to the search, denied consent, then consented to a K9 searching the outside of his car (the dog arrived half an hour into the stop), then the inside of his car, and then refused to consent to a search of his trunk after the K9 alerted.  Eventually, Chavez was arrested for DUI and the car was impounded.  Later the police ran a K9 on the outside of the car again, which alerted on the trunk, then obtained a search warrant for the trunk where they found cocaine.

   That last part makes more sense if you know that the Carroll doctrine doesn't apply in NM, because the NM constitution affords more protection against search & seizure of automobiles than the federal constitution.

   Anyway, Chavez was charged with possession with intent to distribute, and suddenly the DUI was the least of his problems.  He filed a motion to suppress the cocaine on several grounds: 1- there was no reasonable suspicion to stop him in the first place, 2- the police had no probable cause to arrest him for DUI 3- the scope of his detention was unreasonable, and 4- his consent to search the car was involuntary (and not attenuated from the illegal stop and arrest),

   Before we get to the court's opinion, here's mine (it's my blog, after all): 1- fuck off.  The police were responding to a call of a disturbance, and the reporting party pointed to Chavez's car, identifying it as the suspect vehicle.  There was reasonable suspicions.  2- fuck off.  The police had probable cause to arrest Chavez for DUI.  Frankly, I'm not sure why they didn't just skip over making threats to arrest him and just arrest him.  I don't do that... if I've got enough to take you, I'm taking you now.  If I don't have enough to take you, I'm not taking you.  But I don't mess around with telling people repeatedly that they're "this close" to going to jail.  What's the point? 3- Chavez almost has a point.  Extending a detention for 30 minutes to get a dog is probably unreasonable, except that the police had PC to arrest at that point so they can extend the stop all day if they want to. 4- Chavez DOES have a point.  The consent to search was clearly involuntary... If I tell you that you're an inch from going to jail and then ask you for consent to search something, who could possibly miss the implied threat?  I don't know if the evidence should have been suppressed, though, since if the police were to just go ahead and make the arrest that they had PC for then they would have likely found it during an inventory of the car...

   Here's what the court says: 1- The stop was justified by reasonable suspicion.  2- The police had PC to arrest Chavez for DUI.  3- Because the police had PC to arrest, the court doesn't care about the extension of the stop.  PC isn't always required to extend a stop, but it is sufficient (although the court does note that even if there hadn't been PC, the extension of the stop would have been reasonable.  The court and I disagree on this, but when the court and I disagree, the court wins). 4- Since the stop and arrest were both reasonable the court didn't see fit to address Chavez's consent argument at all.

   So there you go.  Although I don't much care for the way this call was handled, I do like the court's take on it.

Colorado Court of Appeals People v. King 08CA1123

Decision here.

   I've got nothing to say about this one.  The decision says that a search warrant for a residence doesn't automatically confer the authority to conduct a strip search of the occupants of said residence (unless it says it does).  Happy reading.

US Supreme Court Perry v. New Hampshire (10-8974)

Read the decision here.

   When I first heard about this case, I thought the Supreme Court was going to rule on whether or not show-up field identifications were permissible.  After I read the decision, it turned out that wasn't quite the issue (but close enough).

   Here's the facts: Police in New Hampshire were investigating a call of suspect breaking into cars.  While an officer waited with the suspect in the parking lot, another officer met with the reporting party.  When asked to describe the suspect, the reporting party instead walked over to her window and pointed the suspect out.  He was subsequently arrested and charged with... doesn't really matter.  He was convicted, and he appealed.  The defendant (Perry) wanted the court to suppress his identification as the suspect because the manner in which the identification was carried out was too suggestive and therefore unreliable.

   A couple of things stood out for me about this case.  First, this wasn't a typical field identification.  There's a somewhat formal process in place for those... a suspect is detained, and then a witness is brought to the suspect after being informed that the person being detained may or may not be the person the police are looking for, and care is taken to make sure that we don't say anything suggestive to the witness or talk them into making an identification that they aren't really sure of.  Voila!  Field identification.  That isn't what happened in this case, though... the police never gave that kind of advisement, and they never asked the witness to look at Perry.  They just asked her to describe the suspect and then she pointed him out on her own.  The second point that stood out for me was that a month after the arrest the police showed the same witness a photo line-up which included Perry, and she couldn't pick him out.  I'm not really sure why they did that, especially so late in the game.

   Anyway, Perry wanted the eyewitness identification to be suppressed because it was unreliable.  In previous cases, the court has held that eyewitness identifications will be suppressed when the police obtain that identification using procedures that are so unnecessarily suggestive that they create a substantial likelihood of irreparable misidentification.  Even when procedures are unnecessarily suggestive, the identification might be allowed in court if there are sufficient indicia of reliability to mitigate the improper procedure.  But that's the exact opposite of the instant case.  In Perry, there was nothing suggestive about the police procedures.  The identification was suggestive because of factors outside of police control, and unreliable because they had an unreliable witness to work with (and because eyewitness identifications are inherently unreliable).

   The court held that the reason for suppressing unnecessarily suggestively obtained identifications is to discourage police conduct.  More importantly, the court held that simple unreliability is not a reason to suppress evidence; it is the jury's role to weigh the evidence and decide what is reliable and what is not.  The proper way for the defense to undermine unreliable evidence isn't to use the exclusionary rule, but to educate the jury on the unreliability of the evidence (which they did, and Perry was convicted anyway).  So the field identification in this case was properly admitted into evidence.  

   So like I said, show up identifications aren't quite the issue in this case, after all.  Although this case would still be on point for a show up... here's my take (not necessarily the court's): when we do a show up identification, the process is inherently suggestive.  We do what we can to mitigate that (by telling the witness that the person detained may not be the suspect, and by being careful not to ask leading questions or reveal other evidence to the witness), but we're still taking a witness to see some guy who (hopefully) matches the suspect description and is surrounded by cops.  That's okay because it's necessary, but also because we're relying on other indicia of reliability to make sure that the identification is solid (indicia like the level of certainty the witness expresses, the degree to which the suspect matches the descriptions that witnesses have already given, the suspect's proximity to the crime scene, and the level of familiarity between the suspect and the witness).  We're leaning very heavily on all of that to overcome the necessary suggestiveness of the field ID procedure.  This is why it kills me when cops bring every witness they can find for a show up... seems to me like it would be better practice to just bring one or two to establish PC (or not), and then let the other witnesses identify the suspect later through less suggestive means (like a photo array).

Intro

   I'm kinda excited about this project.

   Like it says in the "about the honorable court" page, I'm a cop.  My choice of career makes staying current on case law important to me.  I think that it should be a higher priority for police in general, but none of the departments that I've worked for have offered any programs to make staying current easy.  Every so often, your supervisor will discuss a recent case (which they may or may not interpret correctly).  Maybe once a year you'll go to a legal update class where someone will try to condense twelve months of statutory and case law changes into a couple of easily digestible hours.  Either way, you're going to miss a lot of important information.  Fortunately, thanks to the magic of the internet, it's not all that hard to go to the horse's mouth.  So I've been following the courts on my own by subscribing to legal blogs and watching the courts' web sites for new decisions.

   I've been pretty happy with that approach, but it wasn't complete.  I wanted a database that help me keep track of the decisions that I was reading, maybe even one that would help like-minded people benefit from my research.  Hopefully, that's what this blog will be.  I'll begin by posting some of the recent decisions that I've read, and I'll update the blog whenever another interesting case crosses my monitor.  Maybe a little later I'll go back further and add some old cases that should still be required reading for people in my field.  Most of the posts on this blog will be a link to a court decision along with a few paragraphs explaining my understanding of that decision.  If something is particularly interesting, or if you've got a different understanding of the decision than I do, then I'd love to hear from you in the comments for that post.  After all, i'm no more qualified than the next guy to interpret these decisions, and I could benefit from everyone else's take on the law as much as they could benefit from mine.

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.

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.