Case Law Update

Case Law UpdateTOPIC: EXIGENT CIRCUMSTANCESWARRANTLESS ENTRY INTO HOME

SCENARIO: ATF agents went to the home of Ms. Moore in early 2012 after receiving an anonymous tip about high volume of traffic. They had watched the home for a few hours and confirmed the high volume of short term traffic. Agent Stephens had previous contact with Ms. Moore in 2010.

A week later Agent Stephens and three other officers did a “knock and talk” at Ms. Moore’s home. After knocking officers could hear ‘scurrying and shuff ling within the residence. Prior to opening the door a voice asked who it was. Police was the reply. Again officers heard scurrying and loud movements inside the home. After a short delay the door was opened. There had been no sounds of toilets flushing or voices heard.

Mr. Mongold (who had been living at this home for several months) opened the door and Agent Stephens immediately smelled marijuana and immediately recognized what he believed to be prison tattoos on Mongold. Agent Stephens asked for Ms. Moore. Mongold said he would go get her and turned to walk to the back of the house. Agent Stephens and police walked in behind Mongold without permission.

Once inside Agent Stephens saw ammunition in a bedroom. He knew Ms. Moore was a convicted felon. After directing four occupants from the home to the porch both Mongold and Moore, post Miranda, signed consent search forms. Marijuana, drug paraphernalia, bags of white powder, ammunition, a shotgun, and a revolver were found. Both Mongold and Moore were charged with federal firearms violations.

  1. Was this warrantless entry lawful?
  2. What are the exigent circumstances for warrantless entry into a home?
  3. What is the four-part test to determine the likelihood of destruction of evidence justifying an officers’ warrantless entry?

ANSWERS: United States v. Mongold and Moore 10th Circuit Court of Appeals July 10, 2013. PATC Legal & Liability Risk Management Institute, Brian S. Batterton, Attorney, October 2013 Marijuana Does Not Support Exigent Home Entry

  1. No, it was not. Agent and officers’ walked in without permission or consent.
  2. Prosecutor’s argument was the entry was to prevent the destruction of evidence-marijuana and officer safety.
  3. Exigent circumstances that may justify warrantless entry into the home are:
  4. To prevent the destruction of evidence;
  5. To aid an individual during an emergency;
  6. To prevent an individual from imminent injury;
  7. Hot pursuit
  8. The 10th Circuit Court of Appeals employs a four-part test to determine whether the likelihood of destruction of evidence justifies an officers’ warrantless entry.
  9. Pursuant to clear evidence of probable cause;
  10. Available only for serious crimes and in circumstances where the destruction of the evidence is likely;
  11. Limited in scope to the minimum intrusion necessary to prevent the destruction of evidence, and
  12. Supported by clearly defined indicators of exigency that is not subject to police manipulation or abuse.
  13. In United States v. Carter, another 10th Circuit case the court said: “possession of a small quantity” was likely a misdemeanor and as such did “not reach the level of ‘serious

crime.’”

  1. The court went on to say that destruction of evidence did not apply in this case, there were no indication of any heightened danger, and no weapon was seen so officer safety, as well, did not apply in this case.
  2. The court said (emphasis added) “If marijuana possession is the only crime for which the officers in this case had probable cause, the exigency exception for destruction of

evidence should not apply because marijuana possession is not a serious crime.”

  1. Addressing the signed consent forms the court said that if consent follows immediately after a Fourth Amendment violation, “the government must prove not only the voluntariness of the consent under the totality of the circumstances, but the government must also establish a break in the causal connection between the illegality and the evidence thereby obtained.” United States v. Melendez-Garcia 10th Circuit 1994. There was no ‘break’ in this case.
  2. Conviction overturned.

 

TOPIC: LEVELS OF CONTACT

SCENARIO: Orem City Police Sergeant Bryan Robinson was working Major Crimes Task Force April 27, 2010. Sgt. Robinson and two of his team were working narcotic interdiction by watching a parking lot known for its high crime and unlawful narcotic activity.

Cassandra Anderson and her daughter drove into the parking lot of this business and parked in a far corner of the parking lot. No other cars were around them. Andersons’ daughter went into the convenience store and then returned to her mother’s car.

Ten minutes later another car pulled into the parking lot and parked a couple of stall away from Anderson. Again there were no other cars parked close to their two cars. Anderson exited her vehicle and walked to the driver’s door of the second vehicle and

leaned in to talk with the driver. Sgt. Robinson observed Anderson make a “hand-to-hand transaction” with the other driver and then place something in her right front pocket. Sgt. Robinson did not see Anderson give anything to the driver of the second car.

Anderson stood up spoke brief ly to the driver of the second vehicle and returned to her car. Both cars then left the parking lot. Elapsed time from first contact to leaving the parking lot was less than two minutes.

Sgt. Robinson then made an investigatory stop on Anderson. After questioning and consent search she was arrested for possession of methamphetamine and other pills (Oxycodone) found on her person. Anderson had told Sgt. Robinson she had met with this woman to collect a $100 debt owned her. A $100 bill was found in Andersons’’ planner.

  1. Was this investigatory stop legal?

ANSWERS: Utah Court of Appeals State of Utah v. Cassandra Anderson 11/21/13.

Yes it was lawful. The court enumerated several reasons for ruling this stop legal. All of these reasons come back to the articulation in the officer’s police report. Without a carefully prepared report this case would not have been affirmed. Below are several of the reasons the court ruled in favor of the state.

  1. “Because Anderson is not challenging the scope of the stop following the detention, we address only whether Sergeant Robinson was justified in stopping Anderson in the first place.”
  2. “A brief investigatory stop of a vehicle constitutes a level two encounter, for which…reasonable, articulable suspicion is required. A police officer has reasonable, articulable suspicion when the officer is able to point to specific and articulable facts which taken together with rational inferences from those facts reasonably warrant th[e] intrusion.”
  3. “…a court considers the totality of the circumstances to determine whether, taken together, the facts warranted further investigation by the police officer.”
  4. “In conducting this analysis, courts must accord deference to an officer’s ability to distinguish between innocent and suspicious actions, even if that distinction depends on

inferences drawn from the circumstances that might elude an untrained person.”

  1. “Sergeant Robinson described the circumstances that led him to detain Anderson and explained why he considered those circumstances suspicious.”
  2. …received hands-on training in narcotics interdiction from more experienced detectives including specific training on methods to distribute controlled substances such as hand-to-hand transactions…attending conferences for narcotic officers twice a year, observed hundreds of drug transactions and had become familiar with the manner in which they take place.
  3. Anderson parked at some distance from the store despite the availability of parking near the store front, an indication she was waiting to meet with someone. Once the second car arrived they also parked at a distance from the store. Anderson then approached the second car whose driver’s window was down. iii. Paying close attention as he expected this to be a narcotic transaction he was looking for the “sleight of hand.” Anderson slipped something small into her pocket and then both cars left.
  4. Based on observing hundreds of these transactions

this was how a drug transaction takes place. It contained the ‘hallmarks’ of drug transactions he had previously observed: sleight of hand, brief encounter, known drug activity area, previous arrests made in same location.

  1. Sergeant Robinson admitted on the stand that Anderson actions ‘could’ have had an innocent explanation, however the court ruled:

vii. “…we accord deference to an officer’s ability to distinguish between innocent and suspicious actions.”

viii. “An officer is not required to rule out innocent explanations for behavior that he deems suspicious so long as his suspicion has a basis in reason.”

  1. “…even if that distinction depends on inferences drawn from the circumstances that might elude an untrained person.”
  2. This appeal challenged that observing a hand to hand transaction, alone, does not constitute reasonable suspicion to make a stop. Numerous courts have ruled that it does not constitute reasonable suspicion. Here the sergeant’s observations enumerated in his report and testimony was the foundation for our Court of Appeals to rule in the state’s favor.

 

TOPIC: PC FOR A TRAFFIC STOP

SCENARIO: Officers on routine patrol randomly run license plates and find the registered owner has a suspended license or the registered owner has a failure to appear warrant out for their arrest. In the alternative if an officer is running a license plate reader and a hit comes up on a vehicle where there is a wanted person associated with that car are these ‘hits’ enough to make a traffic stop on the car?

Are these individual ‘hits’ enough to make a lawful traffic stop?

If the registered owner is a male and the driver is female will that make a difference?

ANSWERS: Georgia Court of Appeals Hernandez-Lopez v. State February 2013, Humphreys v. State and Rodriquez v. State. Delaware v. Prouse United States Supreme Court 1979. Brian S. Batterton, Attorney PATC Legal & Liability Risk Management Institute November 2013 ‘Does a “hit” from a license plate reader provide grounds for a traffic stop?

  1. Yes they are. The court said “Stopping and detaining a driver to check his license and registration is appropriate when an officer has a reasonable and articulable suspicion that the driver or vehicle is subject to seizure for violation of the law.” (Delaware v. Prouse)
  2. The Court of Appeals further said: “The information retrieved by the system’s recognition of the license-plate number-i.e., identifying information of a wanted person, the offense allegedly committed by the wanted person, and a photograph of the relevant license plate and vehicle-gave the officer reasonable, articulable suspicion to justify a traffic stop of the vehicle driving by Hernandez-Lopez.”
  3. In Humphreys v. State an officer was on patrol randomly checking tags via NCIC/GCIC when one popped that the registered owner had a suspended driver’s license. The court ruled on this traffic stop as: “The officer was authorized to stop the vehicle Humphreys was driving because of the perceived traffic violation and continue his investigation because Humphreys did not have a driver’s license.”
  4. No it will not make a difference. In Rodriguez v. State the court said: Here…, the State did provide the particularized factual basis for suspicion: that the GCIC had returned information linking Sanchez, a person who was the subject of an active arrest warrant, to Rodriguez’s vehicle. Knowing that fact, the officer had a reasonable suspicion that Sanchez could be found driving or riding in the vehicle, and thus, the officer was authorized to initiate a stop of the vehicle.

 

TOPIC: SCOPE-DURATION OF STOP

SCENARIO: In November 2010 dispatch received a call from an anonymous caller that two Hispanic men had exchanged money and plastic baggies in the parking lot of a local grocery store. The caller said a gray Dodge truck was involved. The last name of the registered owner was ‘Luna.’

Officer Flores and Detective Anderson recognized the Luna name and the gray Dodge ‘as having past drug involvements.’

After arriving at the store officers did not see the described Dodge truck. A few minutes later a Hispanic male exited the store and got into a black Ford truck. Flores recognized the Hispanic male but could not remember his name until running the plate. It was then that he recognized the name Craig Gurule. Citizen informants and other detectives had told Flores that Gurule was ‘possibly involved in drug activity.’

Following Gurule’s truck they observed two traffic violations and initiated a traffic stop. Gurule did not immediately stop but was seen to glance down to his left side, observe the officers, not pay attention to the roadway and again continued to glance down the left side of his body. Only after Flores initiated the audible siren did Gurule stop.

While making the lawful stop Flores remembered that Gurule was on parole. Flores instructed Gurule from his vehicle and asked why he didn’t pull over immediately. Gurule said he was on his cell phone. Flores did not see Gurule on a cell phone. Based on not stopping immediately, watching the officers instead of the road, giving undue attention to his left side Flores was concerned for his safety. Detective Anderson did a frisk of Gurule while Flores did a plain view search of the driver’s side of the vehicle for weapons or anything Gurule was attempting to conceal. Nothing was found in the truck or on Gurule, weapon or contraband.

At this point a call out to K-9 was made. No K-9 was available. Detective Anderson then called the on call AP&P agent and relayed the circumstances of the officers’ detention of Gurule. Agent Todd Dixon then instructed the officers to perform a search of the vehicle for AP&P. Inside the driver’s side door was found a canvas bag with 2.9 grams of methamphetamine and other paraphernalia. After Gurules’ arrest they found over $2300 in cash on his person.

After the arrest AP&P was contacted again and responded to Gurules’ home where they asked police assistance in a search of the home. Additional narcotics and other contraband were found to include surveillance equipment for the perimeter of the home.

Gurule appealed his conviction on grounds that after being stopped for a minor traffic infraction he was unlawfully detained.

Was Gurule unlawfully detained?

Was Gurule unlawfully frisked?

ANSWERS: Utah State Supreme Court v. Gurule October 1, 2013

  1. No when it comes to the lawful stop for a traffic infraction. Yes when the stop was extended past the reason for the stop.
  2. The Court ruled: “During the pendency of a traffic stop, if officers gain reasonable suspicion of additional criminal activity, they may turn their attention from the original purpose of the traffic stop to expediently investigate [their] new suspicion.” Baker, 2010 UT 18. “But officers must diligently pursue a means of investigation that is likely to confirm or dispel their suspicions quickly.” State v. Morris 2011 UT 40
  3. The Court further said: “To justify extending a detention, such reasonable suspicion requires an objectively reasonable belief that an individual is engaged in or is about to be engaged in criminal activity.” State v. Brake, 2004 UT 95
  4. Continuing “In determining reasonableness, due weight must be given, not to [an officer’s] inchoate and unparticularized suspicion of hunch, but to specific reasonable inferences which [an officer] is entitled to draw from the facts in light of his experience.” (quoting Terry v. Ohio, 1968)
  5. No. The conclusion of the court on both questions 1 & 2 are: “The officers were justified in stopping Gurule for a traffic infraction committed in their presence and their safety concerns justified their separation of Gurule from his vehicle and the subsequent protective frisk and plain-view search. But without reasonable suspicion that Gurule was then engaged in any criminal activity, the officers unconstitutionally extended the duration of the stop when they undertook a sustained investigation of possible illegal drug activity.”
  6. The conviction was reversed and sent back to District Court.
  7. The court sustained the frisk and plain view search of the vehicle by saying: “Under a totality of the circumstances analysis, we conclude that the officers observed ‘specific and articulable facts which, taken together with the rational inferences from those facts,’ would lead an officer to the reasonable conclusion that Gurule was armed and dangerous. Terry, 392 U.S. at 21. Our conclusion is bolstered by the fact that ‘the inherent dangerousness of all traffic stops…should be considered under the totality of the circumstances analysis.” Warren, 2003 UT 36

 

TOPIC: ADA & INTERROGATIONS

SCENARIO: Travis, a male in his 30’s with a diagnosis of ‘severe’ mental retardation with an IQ of 50 was the subject of an investigation of inappropriate conduct with a neighbor’s son. Travis’ disability “would be obvious to anyone, including any police officer, who engaged in conversation with Travis.”

A patrol officer, who knew Travis and his disability, spoke with him alone. He called a detective (Schneider) for advice. Travis provided a phone number for his case worker (for follow up). Travis was read Miranda after which is said ‘yes’ he understood. The officer then left a voice message with the case worker and submitted an ‘information only’ report.

Detective Schneider visited Travis the next day, alone, at his apartment. Again Travis was read the Miranda rights which were more fully explained “to accommodate for his limitations.” Schneider knew Travis had a mental disability but claimed not to have known its “full limitations.” Schneider continued his interrogation of Travis at the police station in a ‘conference room’ which Schneider believed was less intimidating that the station’s regular, smaller interview room.

Schneider asked non-leading questions “because it seemed apparent that it would be easy to get him to say something that he did not do.”

At Travis’ request, Schneider phoned Idella Folkerts (Travis’ mother) who spoke with Travis who said he was “nervous.” Idella asked Schneider if he wished her to come down. Idella was told it was up to her. Idella then told Schneider he would probably be less nervous if she was not there after which the phone call ended.

Schneider then continued the interrogation after which Travis incriminated himself. Schneider consulted with the county attorney and filed a complaint with a misdemeanor. Schneider arranged alternative and friendlier booking procedures, and one parent accompanied Travis during booking.

The Folkertses sued the City of Waverly and the detective and alleged violations of Travis’ Fourteenth Amendment substantive due process rights and violations of the ADA

SUPERVISOR DISCUSSION:

  1. Was Travis’ Fourteenth Amendment rights violated?
  2. Was there a violation of the ADA in this investigation?

ANSWERS: Folkerts v. City of Waverly February 2013 Eighth Circuit Court of Appeals, PATC/LLRMI E-Newsletter Brian S. Batterton, Attorney, Legal & Liability Risk Management Institute December 2013

  1. No it was not. To violate the Fourteenth Amendment the officer’s conduct must “shock the conscience.” This occurs with “egregious” and “outrageous” conduct.
  2. The court ruled in this case the detective made several modifications to his normal procedure which included modified questioning style, more fully explained the Miranda rights, interviewed in a less intimidating room and called Travis’ mother at his request during the interview.
  3. The detective sought the advice from the county attorney.
  4. No there was not. The Folkerts claimed that the defendants failed to provide communicative assistance, failed to professionally evaluate his level of functioning, interrogated him without his parents/guardians and several other minor issues.
  5. The court applied the ADA standard in this case noting the police did make reasonable accommodations for Travis. They cited everything mentioned in the Fourteenth Amendment explanation as well as driving Travis to his parents, explaining the situation to them and arranging an alternative booking procedure.
  6. The court affirmed summary judgment for the detective and the city.
  7. Travis was found incompetent to stand trial and dismissed the case.