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.
Tuesday, December 8, 1998
Friday, December 4, 1998
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.
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.
Thursday, September 17, 1998
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.
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.
Wednesday, July 8, 1998
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.
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.
Monday, July 6, 1998
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.
Thursday, June 11, 1998
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.
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.
Wednesday, May 6, 1998
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.
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.
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