Tenth Circuit Felders v. Malcom 12-4154

Decision here.

 Dear fellow officers,

   Please don't Gant the fellow officer rule.

  Sincerely,

   The Author of This Blog.

   So Felders was stopped for speeding in Utah while she was driving from California to Colorado.  The trooper (Bairett) who stopped her thought that she was hauling drugs.  Why, you ask?  Because she had an air freshener (like many 54 year old ladies), she didn't maintain eye contact (like 80-90% of people on traffic stops), and the kids in the car didn't have the details of the trip straight (like most 17 & 18 year olds).  Oh, and she had a Jesus bumper sticker or something.

   I'm not even kidding, Bairett thought all of that was PC to search the car.  But he didn't search it right away.  First, he asked for consent (denied).  Then, he called for a K9.  Before running the dog on the car, he explained what was going on to the handler (Malcom), and then had the occupants of the car get out.  When they did get out, he prevented them from closing the doors (and then he and Malcom pretended that they had left the doors open voluntarily).

   When Malcom ran the dog on the car, it jumped in and alerted on the beef jerky in the center console.  Then the two cops spent two hours searching the car and finding nothing.  Quite correctly, Felders sued.

   Both officers moved to dismiss the suit based on qualified immunity, and they were denied.  Malcom appealed.  And these are his ridiculous arguments:

   1- He argued that he was entitled to rely on Bairett's assertion that there was probable cause to search the vehicle, based on the collective knowledge doctrine (sometimes known as the fellow officer rule).

   2- He alternately argued that he independently had probable cause to search the vehicle because he could arrest Felders for obstruction for lying to Bairett in order to obstruct his drug investigation.

   3- He argued that the law was not clearly established that his conduct during the search violated Felders' rights.

   So first, let's talk about collective knowledge.  The courts have described that it works "vertically" and "horizontally."  Vertical collective knowledge is where an investigating officer informs another officer that there is probable cause to search/arrest/whatever and the second officer carries that out.  Horizontal collective knowledge is where several officers act independently in an investigation, then they can pool their knowledge and if putting all the pieces together gets them to PC they can act on that (this only works if they actually do communicate with each other, though).  

   Malcom couldn't rely on vertical collective knowledge because Bairett didn't have PC (the court is willing to humor the idea that he had reasonable suspicion, but I think they're being generous).  He couldn't even make a good faith reliance on Bairett's assertion of PC, because he knew too much about the case.  Or, as the court put it: "Accordingly, the good faith defense shields objectively reasonable good faith reliance on the statements of a fellow officer, but does not protect deliberate, reckless, or grossly negligent reliance on the flawed conclusions of a fellow officer."

   He also didn't have PC to arrest Felders for obstructing Bairett, because the facts communicated to him by Bairett wouldn't lead a reasonable officer to believe that she had committed that crime.

   The court also ruled that by facilitating the dog's entry into the car (even though Bairett was the one who actually kept the door open when the passengers wanted to close it), he violated Felders' clearly established rights.

   Qualified immunity denied.  

US Supreme Court Abramski v. US 12-1493

Decision here.

   Abramski was (is) a former cop (having been fired two years prior to the following events).  His uncle wanted to buy a gun, and Abramski offered to use his old police ID card to get a discount.  He bought the gun using his uncle's money and then gave his uncle the gun.  This after signing a form declaring that he wasn't doing exactly that.

   When the feds found out (because they were searching his house because he was a suspect in something else), he was charged with making a false statement on the form.  His conviction was appealed all the way to the supreme court.

   Abramski's argument was that his false statement was immaterial either because a) his uncle was eligible to own a gun anyway, or b) federal law doesn't prohibit someone from buying a gun on behalf someone else.  The Supreme court held that a) doesn't matter and b) yes, it does.  So Abramski's false statement was material and his conviction was upheld.

Colorado Supreme Court People v. Schaufele 13SA276

Decision here.

   Schaufele caused an accident and was transported to the hospital, where an investigating officer noted indicia of alcohol intoxication.  Since he was lapsing in and out of consciousness, express consent was not explained to him.  A blood draw was conducted without a warrant, and his BAC turned out to be .2something.

   The trial court did not find that there were exigent circumstances justifying a warrantless blood draw, and suppressed the BAC evidence.  The people appealed.  The Colorado Supreme Court, with frequent references to the SCOTUS case of Missouri v. McNeely, held that the trial court had made the correct decision.  Even though the express consent statute might have allowed for the blood draw (since Schaufele was unconscious), the express consent statute does not trump constitutional law.

   The people's argument centered around the time that it would have taken to get a warrant.  The court ruled that this is just one factor in determining whether or not there are exigent circumstances, and that the trial court had already correctly determined that the totality in this case weighed against that one factor.  

We now return to your regularly scheduled research project

   The next few hours (days?) will teach me to take a month off from blogging.  Some interesting stuff happened in the courts while I was on vacation!  So I'll be glued to my computer for a while.

   But the vacation was totally worth it.

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.