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.

US Supreme Court Tennessee v. Garner 471

Decided March 27, 1985

   Police responded to a call of a burglary in progress, and found the suspect (Garner) fleeing from the house.  The officer attempting to stop Garner could see that he was 17 or 18, and appeared to be unarmed.  He identified himself as an officer and ordered Garner to stop.  Garner instead continued to flee, and began climbing over a fence.  In order to prevent him from escaping, the officer shot him in the back of the head.  He died, and was found to have stolen $10 and a purse during the burglary.

   The officer was acting under the authority of a state statute which authorized the use of any necessary force to effect an arrest (although most police departments of the time had policies that would have prohibited this use of force, this particular department did not).  The state argued in this case that the reasonableness of a seizure depends only on the facts justifying it, and not on how the seizure is actually carried out.  The court held that "to determine the constitutionality of a seizure we must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion."

   The court also explored the justifications for the old common law rule that allowed deadly force to be used to apprehend a fleeing felon, but that rule came from a time when most felonies were punishable by death, and when the use of deadly force generally involved  closer combat and therefore was justified in part by the risk to the officer.  None of those justifications were found to be appropriate for the modern world, where many felonies are less violent and dangerous than some misdemeanors.

   The court ruled that "whenever an officer restrains the freedom of a person to walk away, he has seized that person.  While it is not always clear just when minimal police interference becomes a seizure, there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment," and that "where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given."

   Obviously, under the facts of this case, the use of deadly force was unreasonable.

US Supreme Court Oregon v. Elstad 83-773

Decided March 4, 1985.

   Police obtained a warrant for Elstad's arrest after a witness reported seeing him burglarize someone's home (Elstad was 18).  The police went to his house, where his mother showed them to his room.  One officer then stayed with Elstad while another went with his mother to another room to inform her of the warrant for his arrest.  The officer who stayed with Elstad informed him that he believed he had been there for the burglary, and Elstad admitted that he had been.

   Elstad was arrested and taken to the station, where he waived his Miranda rights and confessed.  At trial, he sought to suppress his confession.  He argued that his confession was the fruit of the poisonous tree, being tainted by his earlier unwarned statement that he had been there.  The court had none of it, he was convicted, and he appealed.  The court of appeals took Elstad's side and reversed his conviction.  The prosecution appealed.

   The US Supreme Court ordered Elstad's conviction reinstated.  Here's why: Miranda warnings (like the exclusionary rule) are not actually required by the Constitution.  They are a judicially created measure designed to protect a constitutional right.  Where a Miranda violation has occurred, a suspect's statements will be presumed to be involuntary and suppressed, but if the statements were not actually made as the result of coercive police conduct the 5th Amendment isn't actually being violated so the fruit of the poisonous tree doctrine doesn't apply.  In this case, the prosecution had already conceded that Elstad was in custody at the time of his first incriminating statement (I don't think they should've conceded that.  If they had argued the point, then I think they would have won this case on those grounds), so the Court accepted that conclusion.  But even without Miranda warnings, the Court held that the statement was obviously voluntary.  It was made in Elbert's home (hardly a police dominated atmosphere), there was no show of force or other coercive police conduct, it was made in response to an off-hand comment rather than after extensive interrogation.  Obviously voluntary.  Since the prosecution conceded the issue of custody, and since there was no Miranda warning given, the statement was inadmissible in court, but since the statement was not coerced there was no actual violation of Elstad's rights.

   If Elstad's rights had been violated, then the second confession could have been admissible anyway if there was a sufficient break in the causal chain between his earlier statement and his later one.  But since his rights weren't violated, no break in the causal chain was necessary.  All that was necessary was that his second statement also be voluntary (and, of course, made after a Miranda waiver).  Since that requirement was met, the statement should not have been suppressed.

Colorado Supreme Court People v. Berow 83SA498 83SA506

Decided October 9, 1984.

   Berow and her husband lived in a hotel, and went on a vacation to California.  Before leaving, they asked the manager to watch their room and "arrest any intruders."  While they were gone, the manager found the door had been tampered with and thought he saw someone inside.  He called the cops.  Even though the door had been tampered with, it was apparently still secured from inside by a chain lock.  Believing that a burglary was in progress, the officer forced entry.

   No one was found inside, but while searching only in areas where a person could hide the officer found a hash pipe and some marijuana plants.  He left the apartment, got a search warrant, returned and seized the evidence.  The trial court suppressed the evidence and the people appealed.

   The Colorado Supreme Court held that the apparent in-progress burglary constituted exigent circumstances justifying the officer's entry, and that additionally the hotel manager had apparently been given authority to consent to the officer's entry.  Once inside, the officer found the items in plain view and did not deviate from the original purpose of the search until he had obtained a warrant.  The order suppressing the evidence was reversed.