TOPIC: BREACHING CURTILAGE
SCENARIO: An officer met with an informant who told him he was very familiar with Chavez, knew he was a member of a gang and went by the name of “Wizard.” CI told the officer Chavez lived at 154 West Westwood Avenue and there was a for sale sign in the front window. CI said the home was owned by one of Chavez’s family members and was vacant because there was no running water.
The officer verified an outstanding warrant for Chavez but the address on the warrant did not match the Westwood address. Driving to the Westwood address the officer verified the address, for sale sign and was there when a vehicle arrived which was registered to a female whose address on the car registration matched the Westwood address.
No attempt was made to find out who owned the house and/or whether the female driver of the car, Jenny Lopez, was related to Chavez. The officer called JCAT for help in serving the warrant on the Westwood house on Chavez.
Containment was set up and a JCAT member took up a position at the rear of the house, passing through an open gate in a fence that enclosed the backyard. This officer looked through a gap in the blinds and observed Chavez retrieve a handgun from under a sofa. Communication was initiated, Chavez failed to surrender and tear gas was used at which time Lopez exited the home. After some time Chavez surrendered and was charged with possession of a firearm by a restricted person.
Was there enough reasonable suspicion to believe Chavez lived at that residence?
Was the officer taking up position at the rear of the home and looking through the window blinds a violation of the 4th Amendment?
ANSWERS: 10th Circuit Court of Appeals United States v. Chavez April 10, 2014 PATC/LLRMI E-Newsletter Brian S. Batterton, Attorney, Legal & Liability Risk Breaching Curtilage to Execute Arrest Warrant: What are the Rules? July 2014.
No, there was not a reasonable belief that Chavez lived at the Westwood address. For entry into a private residence to serve a lawful arrest warrant the officers are justified in entering the home if the “officers must have a reasonable belief the arrestee (1) lived in the residence, and (2) is within the residence at the time of entry.” United States Supreme Court, Payton v. New York
The court further ruled “courts must be sensitive to common sense factors indicating a resident’s presence.” Valdez v. MaPheters (10th Cir. 1999). Officers are not required to actually view the suspect, but the circumstances must give them a reasonable belief the suspect is present in the home.
Relevant facts leading up to this reasonable belief are the presence of an automobile, the time of day, and the operation of lights at night.
Yes, the entry into the back yard was a violation of the 4th Amendment.
The court ruled in this case that even if officers proved that Chavez did live at this residence there was no reasonable belief that Chavez was present at the time law enforcement was there (midnight).
The court went on saying: “at the time of the intrusion into the curtilage, the officers did not see any visible indication that anyone was in the house. Then, when the car arrived, it was not registered to Chavez and there was no indication Chavez was driving…” Further comments were the CI never indicated what days of the week or time Chavez stayed at this residence.
With no reasonable belief Chavez was present the entry into the curtilage without a warrant was a violation of the 4th Amendment.
TOPIC: EXIGENT CIRCUMSTANCESWARRANTLESS ENTRY INTO HOME
SCENARIO: Officer Robert DeBellis was dispatched on a 911 call about a women being held inside (an apartment) against her will and being injured. DeBellis arrived and met with the complainant who said her friend was ‘in distress, in fear for her life, and…being held against her will.’ Complainant had received ‘text’ messages from the women in the apartment.
Two back up officers arrived. The landlord unlocked a porch door which allows access to a first and second floor apartment. The bottom door was occupied and told officers the ‘Wood’ apartment was the one upstairs. For a period of time there was no answer at the Wood door.
Wood eventually appeared and stepped out into the “porch” area. After a few questions Wood “abruptly” told officers that he had a child upstairs he needed to care for and turned to leave. DeBellis grabbed Wood’s shoulder. As he did so, it exposed a gun tucked into the back of Wood’s pants. Wood’s shoved De-Bellis and was then taken into custody.
After being convicted of possession of a firearm by a restricted person he appealed saying he was illegally seized and there was no probable cause for officers to enter his home without a warrant.
Was this warrantless entry lawful?
Was being in the ‘porch’ area considered part of the apartment?
Was Wood seized when the officer grabbed his shoulder?
ANSWERS: United States v. Wood Third Circuit Court of Appeals October 2013. PATC Legal & Liability Risk Management Institute, Brian S. Batterton, Attorney, July 2014 Protection of Life and Exigent Home Entry.
Yes. Exceptions to the warrant requirement are consent & exigent circumstances which include protection of life, to prevent destruction of evidence and hot pursuit. The court cited several cases including Brigham City v. Stuart (2006) “One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury.” Parkhurst v. Trapp (3d Cir. 1996) “If the officers have probable cause to believe an individual in the home is in imminent danger, they may enter it without a warrant.”
Not decided. The court did not address whether the ‘porch area’ was part of the home area. The court ruled that exigent circumstances were present making the determination of whether the porch area was part of the home moot.
Yes, Wood was seized the moment DeBellis grabbed his shoulder. The court ruled that based on the exigency of the threat of imminent danger to someone inside the apartment the seizure of Wood was justified during the course of this investigation.
TOPIC: TERRY STOP & FRISK
SCENARIO: Officers Bailey, Jamieson and Dimartino responded to a suspicious person armed with a gun at a bus stop. The caller saw a man with a gun on his person while riding the bus. The suspect was described as a black male with tan pants, a white t-shirt and wearing a black hat.
Bailey arrived first and observed a man matching the description leaving the bus stop. Upon calling on him to stop the individual failed to comply and was taken to the ground whereupon Bailey and the other two officers who just arrived recognized him as a known homeless person who was intoxicated whom they had dealt with before. It was not the person they were looking for.
Jamison contacted the 911 caller by phone for further information. The caller said he had observed the officers take the wrong person down. The person with the gun was one of the two black male individuals seated at the bus stop. One had on a black hat the other a camouf lage hat. The caller said he had seen the butt of a gun on one of the two men.
Officers contacted both men at the bus stop frisking the first subject with the black hat. This individual had a gun concealed on his person. They next frisked the person with the camouf lage hat finding a concealed handgun on him.
Both were charged.
Woods (the person wearing the camouf lage hat) appealed his conviction citing Florida v. J.L. (2000) citing the court ruling that an anonymous tip that a person possessing a gun, standing alone, does not provide sufficient reasonable suspicion to justify a stop and frisk. His attorney also cited Terry v. Ohio that there was no justification to stop and frisk Woods as there was no reasonable suspicion to believe that he was involved in any criminal activity and/or was armed and dangerous.
Was there enough reasonable suspicion to stop, detain, and frisk Woods for weapons?
What is different about this case than the two cases cited by
ANSWERS: United States Supreme Court Terry v. Ohio, United States Supreme Court Florida v. J.L. 2000, Eighth Circuit Court of Appeals United States v. Woods April 1, 2014, Brian Batterton, Attorney PATC Legal & Liability Risk Management Institute June 2014
Yes. The court commented on the ‘totality of the circumstances’ involving this call. They quoted ‘being a companion of an armed person is one factor that can be considered along with the totality of all circumstances present.’
In the 2000 J.L. case the caller was anonymous and it was unknown how the caller received the information J.L. was armed. In this case the officer was able to call the complainant back (and who was still on scene viewing the incident). The caller recited how they had seen the butt of the gun. This additional information distinguishes it from the J.L. ruling.
The court further ruled that ‘Given that, during Jamieson’s phone conversation with the 911 caller, the caller, who was still present on the scene, directed the officers to the two individuals sitting together at the bus stop, without identifying which one he saw carrying the gun, and given that the officers had just recovered a gun on the individual in the black hat, Officer Jamieson had reasonable suspicion to support her frisk of Woods.’
SCENARIO: Hargis and his girlfriend are indicted for manufacturing meth. Hargis fails to show in court and a warrant is issued for his arrest. Months go by and an anonymous tip comes in Hargis is back frequenting the house he and his girlfriend were arrested out of. You notice that the house now shows signs of occupancy.
Neighbors say Hargis is in a beige truck. Watching the house police view a beige truck approach the house but then turn around and speed away. Officers canvas the area. One officer spots a beige truck in the parking lot of a convenience store with its light on. An individual exits the store and enters the drivers’ side of the truck.
Approaching the truck before it leaves the officers inform the driver they are looking for someone in a beige truck and could he see some ID. Opening his wallet the officer spots two picture ID’s of which the driver refuses to show and refuses to give his name. The officer has seen Hargis before and believes this to be him.
Asking the person to exit his truck the man leaves the wallet on the seat of the truck. Attempting to take him into custody a fight ensues and Hargis was handcuffed and put into leg restraints as he continued to resist.
The officer reached into the truck and found one of the picture ID’s was of Hargis. The other picture ID was a forged Georgia driver’s license with Hargis’s picture on it. The officer then told Hargis he was under arrest for the warrant and obstruction of a law enforcement officer.
An investigator arrives a few minutes later and is briefed by the officer on all of the events leading up to Hargis’ arrest. The investigator looks into the truck and observes two pharmacy bags on the passenger seat in plain view. Entering the truck and opening the bags he finds several items used in the manufacturing of meth. The investigator then spots a zippered blue bag in the vicinity of the passenger seat. He opens this and finds 15 more forged ID cards with Hargis’s picture on them.
Hargis was still at the scene and secured with hand and leg restraints in a patrol car.
The investigator took all this evidence and information, obtained a search warrant for the home, served it and found additional manufacturing of methamphetamine at the home.
When did the actual arrest of Hargis take place?
Was the officer’s search of the wallet a violation of GANT?
Was the investigators search of the truck a violation of GANT?
ANSWERS: United States Supreme Court Arizona v. Gant 2009, Georgia Supreme Court v. Hargis March 2014, Brian Batterton, Attorney PATC Legal & Liability Risk Management Institute June 2014
Hargis argued that his arrest on the warrant and obstruction did not give the officer authority to search his wallet that was in the truck. His wallet had nothing to-do with his warrant or obstruction charge. This they said was a violation of GANT.
The court ruled that while a search incident to arrest may not typically come before the arrest in this case the officer had PC to arrest Hargis at the time he told him to get out of the truck. Just because the officer wanted to be thorough and further ID Hargis before telling him he was under arrest it was not necessary.
The court further said the wallet had been ‘on’ Hargis person and in his hands during interaction with the officer. Under this type of circumstance the police could consider the wallet “as an effect on the person of arrestee at the time of the arrest.”
No. The court ruled, as stated before, that the wallet was an effect that was on the person at the time of his arrest. Under the Fourth Amendment the seizure of the wallet was ruled lawful.
No. The court ruled, again, that since the seizure of Hargis’ wallet was lawful then the finding of the false identification was admissible. Once the false document was found in the wallet there was PC to arrest Hargis for possession of false identification.
Following this line of thinking the court ruled there was PC to search the truck for evidence of the crime of false identification. Upon finding the false ID in the zippered blue bag, and the items purchased from the pharmacy that fall in line with material to manufacture meth there was enough PC for the investigator to obtain a search warrant for the home. This case reinforces the GANT guidelines as well as how good police work overcomes what some may believe as an obstacle.
TOPIC: TERRY FRISKS OF MOTOR VEHICLES
SCENARIO: Officers responded to a call about a suspicious vehicle parked close to an intersection with the driver’s door open. It had been there for quite a while.
Officer Hensley arrived and walked up to the vehicle as Snead, apparently awakened by the headlights, moved to close the driver’s door. Snead had been lying across the front seat. When questioned Snead said he was visiting a friend, appeared impaired (confused, thick and slurred speech, jittery and visibly shaking). Hensley observed an empty holster above the seat and asked if their was a gun in the car. Snead said the holster belonged to a friend and there was no gun in the vehicle.
Officer Michael Croyle arrived as back up and approved on the opposite side of the vehicle. Upon looking into the open window Croyle observed a silver handgun beside Snead’s hand in a location Hensley would not have been able to see. Croyle called out a ‘code’ word to Hensley to alert as to the presence of a gun. Snead grabbed the gun.
Hensley and Croyle both drew their weapons and ordered Snead to drop the weapon. After he did Hensley took him from the car and walked him to the read of the truck. He was not handcuffed.
Croyle opened the passenger door to secure the weapon. Croyle had also observed a pipe with residue on the seat by the firearm and a spoon with a white powdery substance on the f loorboard. After securing the weapon Croyle continued to search the passenger compartment of the vehicle. In the glovebox was found several needles, small baggies, empty prescription bottles one of which had an Oxycodone pill in it.
Sneads defense was that officers had no right to enter the truck and search. The Trial Court agreed and suppressed the evidence.
Was the trial court right in suppressing the evidence?
If not, why not? (Discussion)
ANSWERS: United States v. Long 1983. Georgia Court of Appeals v. Snead March 19, 2014. PATC/LLRMI E-Newsletter Brian S. Batterton Attorney April 2014 ‘Terry Searches of Motor Vehicles.’
The trial court was wrong for a number of reasons. Those listed by the Appeals Court were: Snead was NOT secured at the time the officer entered the truck. The officer entered the truck simultaneously at the time of Snead’s removal from the truck. This was not a case which simply involved a ‘legally possessed’ weapon in the vehicle.
Snead’s defense was when he was removed from his truck he did not pose a threat and as such the entry into his vehicle was unlawful. The Appeals Court said that officers had to tell Snead to drop his weapon. This demonstrates the officer’s reasonable belief that Snead posed a danger to their safety.
The Appeals Court went on to state that the entry into the truck to secure the weapon and seize the pipe and spoon was authorized “… to secure the known weapon and conduct a Terry-style protective sweep for others, and the officer’s potentially ulterior motive of searching for contraband does not play a part in our Fourth Amendment analysis.”
- The court went on to comment that this case was distinguishable from others where officers come upon individuals with legally possessed weapons in their vehicle (hunters for example). Articulation is needed to justify a Long frisk of a vehicle. The court cited other cases were the articulation mentioned furtive movements or some other indication of danger to the officer must be shown.