TOPIC: Privacy in a patrol car
SCENARIO: Responding to an anonymous tip officers went to a residence. Upon walking up they heard a door shut and went around to locate that door. Upon doing so they came upon Webster. Webster smelled of marijuana as did an odor of marijuana emanate from the house.
Webster and one other individual were placed in the caged area of a patrol car while officers obtained a search warrant for the house. This lasted about two and a half hours. While an officer was with them most of the time at other times the officer was out of the car. While out of the car Webster made incriminating statements to the other person in the car as well as made phone calls which also yielded incriminating statements. All were recorded on the vehicle’s interior microphone and later introduced as evidence.
Webster was convicted of drug and firearms charges and appealed citing an expectation of privacy in the patrol car.
• Does a detained person have an expectation of privacy in the rear caged portion of your patrol vehicle?
ANSWER: Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (LLRMI.com), United States v. Webster January 5, 2015 Seventh Circuit Court of Appeals.
1. No they do not. The Court first said that “A reasonable expectation of privacy exists when the defendant manifested a subjective expectation of privacy and society recognizes that expectation to be reasonable.” This means there is a subjective and objective component to this issue.
a. The subjective component only means Webster THOUGHT he had an expectation of privacy evidenced by the fact he did not make any incriminating statements until the officer left the patrol car.
b. The objective component means that the expectation of privacy is “one which society accepts as reasonable.” Here the court drew upon several other federal court of appeals (including our 10th Circuit of Appeals) which had already ruled that there is no expectation of privacy in the rear seat of a patrol vehicle.
c. In summation the court said: “given the nature of the vehicle and the visible presence of electronics capable of transmitting any internal conversations, the expectation that a conversation within the vehicle is private is not an expectation that society would recognize to be reasonable.
We agree with those circuits, and hold that conversations in a squad car such as the one in this case are not entitled to a reasonable expectation of privacy, and therefore the recording of the conversation is not a violation of the Fourth Amendment.”
TOPIC: FAILING TO STOP
SCENARIO: Salt Lake City officers were dispatched to a disturbance where several men were reported ‘wrestling’ in an alleyway. Two were wearing red clothing. The area was described as a high crime area. As one officer was arriving in his marked unit he saw a vehicle driving away. He followed the vehicle that went around the block and stopped across from a home at the address to which the officer was responding.
Two men, one of them wearing a red shirt exited the vehicle. The officer hit them with the car’s spotlight and shouted “Gentlemen, stop.” Both failed to comply and went into the house.
The officer then saw Gallegos and one other man in the adjacent alleyway. Gallegos was wearing a shirt with red stripes. After making eye contact with the men the officer started to point but before anything else both men turned and ran/fled. Once in foot pursuit the officer yelled, “Police, stop.” Gallegos continued to run and was blocked by another police car and turned into an adjacent parking lot and hid. While searching the area Gallegos came out from behind a shed and surrendered saying he was sorry he didn’t realize he was a cop. No drugs, paraphernalia, weapons or other contraband was found on Gallegos. He did smell of alcohol.
Gallegos was charged with failure to stop at the command of law enforcement (nothing else).
“A person is guilty of a class A misdemeanor who flees form or otherwise attempts to elude a law enforcement officer: (1) after the officer has issued a verbal or visual command to stop; (2) for the purpose of avoiding arrest.” Utah code ann. § 76-8-305.5.
• Was there probable cause to arrest Gallegos for failure to stop at the command of a law enforcement officer?
ANSWER: Utah Court of Appeals Salt Lake City v. Anthony Mark Gallegos April 2, 2015.
1. No there was not. The court went into great length to explain why they reversed the trial court and vacated Gallegos’s conviction. To condense to bullets the court said:
a. The mere fact of taking off from a police officer is insufficient to meet the requirements of the statute
b. The City had to present evidence supporting an inference that Gallegos thought he was at risk for arrest and therefore motivated to flee
c. The mere presence at the scene of a crime (flight) by itself is not sufficient to establish guilt…it is merely a circumstance to be considered with other factors There must be evidence separate from flight itself from which a jury could conclude beyond a reasonable doubt that a defendant’s motivation in fleeing form an officer was to avoid arrest
e. Gallegos was not cited for intoxication, was not combative with the officer, was not observed being disruptive, being violent, or endangering anyone else
f. The City presented insufficient evidence from which the jury could conclude beyond a reasonable doubt that Gallegos fled from the Officer “for the purpose of avoiding arrest.”
TOPIC: ARMED BANK ROBBERY
SCENARIO: After an armed bank robbery, officers learned that one of the stacks of stolen money contained a GPS tracking device. Fourteen minutes after the robbery law enforcement isolated the GPS signal to a general area and barricaded an intersection which prevented 20 cars containing 29 people from leaving. About 30 minutes later officers ordered Paetsch out of his car and handcuffed him after he kept shifting in his seat and failed to keep his hands outside his car as ordered. After clearing all 20 cars law enforcement began a secondary search by looking through the cars’ windows to ensure no one was hiding inside them. Inside Paetsch’s car, officers saw a money band and a slip of colored paper that banks use to wrap stacks of money.
About an hour later law enforcement isolated the GPS signal to Paetsch’s car. After his arrest a search of his car yielded the stolen cash, the GPS tracking device, two handguns and other evidence linked to the bank robbery.
• Was the initial police barricade a violation of the Fourth Amendment because of the lack of individualized suspicion of any particular person stopped at that intersection?
ANSWER: Tenth Circuit Court of Appeals, 2015 U.S. App. LEXIS 5624 (10th Cir. Colo. apr.8, 2015)
1. No it was not. The court held Paetsch’s initial thirty-minute seizure at the barricade did not violate the Fourth Amendment because the public interest in apprehending an armed bank robber outweighed the minimal intrusion on Paetsch’s liberty.
The court further held that when the officers directed Paetsch out of his car and handcuffed him, they had established reasonable suspicion to believe Paetsch was involved in the robbery. His additional one hour detention was reasonable until the officers confirmed the GPS tracking device was located in his car.
TOPIC: CONSTRUCTIVE POSSESSION
SCENARIO: Armondo Lucero was lawfully pulled over with a female passenger. The car was recently purchased and was not registered to Lucero. Neither Lucero or his passenger had a lawful drivers license. The car was not reported stolen and the previous owner could not be contacted.
Police impounded the car. A sling backpack was located on the floor behind the front passenger seat. Lucero told the officer who started inventorying the backpack that it was not his. Numerous narcotics, digital scales, a stolen handgun with the serial number filed off and thank you cards were found in the backpack.
The passenger had narcotics in her purse and hidden in her bra. Lucero had no contraband on him.
Lucero claimed to be transporting the contents of the car for his ex girlfriend. This included a variety of household goods to include bags of clothing, a suitcase, folded clothes brooms, hairdryer and more. The ex-girlfriend came to the scene and claimed all-but the sling backpack.
Lucero was charged with and convicted of possession or use of a controlled substance, theft by receiving stolen property, possession of a dangerous weapon by a restricted person, and use or possession of drug paraphernalia. All charges were based on what was found in the backpack.
• Was Lucero in constructive possession of the contraband in the backpack?
ANSWER: Utah Court of Appeals, Utah v. Lucero, May 14, 2015.
1. No, Lucero was not in constructive possession. Several issues were brought up to identify what requirements may help support a person being in constructive possession. They are:
a. A case to establish constructive possession cannot be established solely by non-exclusive ownership or occupancy of the place where the contraband is found. (Spanish Fork City v. Bryan UT 1999)
a. A defendant’s joint occupancy of the premises where the contraband is discovered must be combined with other
evidence sufficient to establish the defendant’s knowing and intentional control over the contraband. (Gonzalez-Camargo, 2012 UJT)
a. The Utah Supreme Court noted that shared occupancy of the house was insufficient by itself to establish the requisite nexus for constructive possession. However, the supreme court determined the “other evidence” existed that was sufficient for that purpose (personal items intermingled with contraband. (State v. Workman)
There were several cases mentioned in this opinion (available on request). All indicated there had to be more than just being in a car, home, hotel room, etc with contraband to show constructive possession. These convictions were reversed.
TOPIC: PROBABLE CAUSE
SCENARIO: An officer stopped Snyder for a traffic violation. While standing outside Snyder’s car, the officer smelled burnt marijuana emanating from inside the car. The officer searched the car and while he did not find any marijuana, he found a firearm under the driver’s seat. The officer arrested Snyder for being a felon in possession of a firearm.
Snyder filed a motion to suppress the firearm, arguing the officer’s warrantless search of his car violated the Fourth Amendment.
• Was this search lawful?
ANSWER: The Federal law Enforcement Informer August 2015 issue (FLETC-Legal Training Division) United States v. Snyder, 2015 U.S. App. LEXIS 12510 (10th Cir. Okla. July 20,2015)
a. The court said: When an officer establishes probable cause a car contains contraband, the Fourth Amendment does not require him to obtain a warrant before searching the car and seizing the contraband. In addition, Tenth Circuit case law provides, “the smell of burnt marijuana alone establishes probable cause to search a vehicle for the illegal substance.” Consequently, once the officer smelled the odor of burnt marijuana emanating from Snyder’s car, he was entitled to conduct a warrantless search of the car in an attempt to locate marijuana.
TOPIC: UNLAWFULLY DETAINED
SCENARIO:A UHP Trooper stopped Pettit after driving across the fog line multiple times. Petitt was extremely nervous, with his whole arm shaking when he handed the trooper a Missouri driver’s license which was labeled “Nondriver.” During the conversation Pettit said he was driving his friends car from California to Kansas. Pettit also had a California driver’s license.
Both were suspended. Pettit gave consent to search the car. No contraband was found in the cursory search of the luggage located in the trunk. About 11 minutes into the stop the trooper completed his paperwork and wrote a ticket; however the trooper did not return Pettit’s driver’s licenses or hand him the ticket. Instead, the trooper questioned Pettit further about his travel plans and his relationship with the owner of the car. The trooper then obtained consent to search the entire car and found $2,000 in a suitcase in the trunk. Dispatch notified the trooper that Pettit had multiple arrests for felonies and other drug offenses. Fifteen minutes after the trooper completed Pettit’s original traffic ticket, two canine officers arrived, and their drug-sniffing dog alerted on Pettit’s vehicle. A further search revealed over two kilograms of cocaine hidden in a spare tire in the trunk. Pettit moved to suppress the cocaine, arguing the officer violated the Fourth Amendment by unreasonably prolonging the duration of the traffic stop without reasonable suspicion to believe Pettit was involved in criminal activity.
• Was Pettit unlawfully detained?
ANSWER: United States v. Pettit, 2015 U.S. App. (10th Cir.
Utah May 13, 2015)
a. The court concluded the trooper’s justification for the stop ended when the trooper completed his paperwork and wrote Pettit’s ticket, eleven minutes into the stop.
b. However, the court found during this time, the trooper established reasonable suspicion to believe that Pettit was engaged in criminal activity, which allowed the trooper to extend the duration of the initial stop to conduct his investigation.
c. The court noted that Pettit’s abnormal nervousness, unusual travel plans, and multiple suspended driver’s licenses by themselves might not provide reasonable suspicion; however when taken together they established reasonable suspicion to support Pettit’s extended detention.
TOPIC: UNLAWFUL SEIZURE
SCENARIO: In the even hours (1900) of February 4, 2013 four officers of the Washington, D.C. Metro PD gun Recovery Unit were on ‘gun patrol.’ Their goal was to take guns off the street by patrolling high crime areas in an unmarked car but wearing tactical vests that said ‘POLICE’ on both front and back. Officer Bagshaw slowed their vehicle to come alongside Gross who was walking along the sidewalk. Bagshaw shined his flashlight on Gross to get his attention after which he said “Hey, it is the police, how are you doing? Do you have a gun?”
Gross stopped but did not answer. Bagshaw stopped their car but remained parallel with Gross. Bagshaw then asked Gross, “Can I see your waistband?” Still not speaking he lifted his jacket slightly to show his left side, looking back over his shoulder in the process. Bagshaw, apparently satisfied with the interaction, began to roll the car forward.
Officer Katz, sitting behind Bagshaw asked him to stop the car. Katz while stepping out of the vehicle asked “Hey man, can I check you out for a gun?” As soon as Katz began to exit the car Gross turned and ran with Katz in foot pursuit. While in pursuit Katz noticed Gross patting his right side with his hand as he ran, behavior that Katz later testified “can mean someone is trying to hold a gun in their waistband.” After catching Gross and putting him in handcuffs a loaded .40 caliber semiautomatic handgun was taken from his waistband. Gross appealed that he was initially subjected to an unlawful seizure, absent reasonable suspicion. He was followed by four officers in TAC vests, subjected to accusatory questioning that implied he was not free to leave until he proved his innocence.
• Was this contact by the TAC officers legal? If yes, why. If no, why.
ANSWER: United States Court of Appeals District of Columbia
v. Gross April 21, 2015. PATC/LLRMI E-Newsletter Brian S. Batterton Attorney May 2015 edition.
1. Yes this was a Level I police citizen encounter. Here is why the court ruled this a Level I police citizen encounter.
a. A Fourth Amendment seizure occurs only when an officer, “by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Terry v. Ohio 1968
b. “Gross’s argument runs into the settled principle that a “seizure does not occur simply because a police officer approaches an individual and asks a few questions.” Florida v. Bostick 1991
c. “Even when officers “have no basis for suspecting a particular individual, they may generally ask questions of that individual… as long as the police do not convey a message that compliance with their requests is required.” Florida v. Bostick 1991
d. “And “while most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.” United States v. Drayton 2002.
2. The court went further with their explanation that this was a consensual encounter.
a. In Michigan v. Chesternut the court held that officers did not seize the defendant when they drove parallel to him as he ran. They went further “The act of approaching a person in a police car “does not constitute a seizure where the officers do not use their siren, or flashers, do not command the person to stop, do not display their weapons, and do not drive aggressively to block or control the person’s movement…”
b. “The nature of a police officer’s questions can bear on whether a person has been seized Gomez v. Turner 1982. Questions alone however, ordinarily do not amount to a “show of authority” sufficient to constitute a seizure.” “Officer Bagshaw’s questions (“Do you have a gun?”, “Can I see your waistband?”) did not accuse Gross of possessing a gun or committing a crime.
c. Gross was not seized. This was a police citizen contact (Level I).
TOPIC: PROBABLE CAUSE
SCENARIO: Moore was stopped for speeding. While speaking with Moore the trooper noticed Moore seemed extremely nervous, as his hands were shaking when he handed over his driver’s license, he rarely made eye contact, he kept fidgeting, and he immediately asked if he could smoke. When asked why the registration was in his name and that of a woman with a different name he said they had known each other for years and his name was added the previous week. Even when told he was only going to be given a warning ticket Moore continued to act nervous. The trooper completed the ticket and returned all documentation to Moore and told him to have a good day.
The trooper then asked Moore if he could speak to him for a little while longer. After Moore agreed he was asked about being in trouble before. Moore said he didn’t want to talk about it. When asked if there was anything illegal in the car, such as weapons or drugs, Moore said no. Finally when he trooper asked for consent to search the car Moore refused. Moore was then told he was going to be detained until a dog sniff of his car could be completed. A few minutes later the dog arrived and alerted to the outside of the car. Through an open window the dog even jumped through the window into the interior of the car. No drugs were found but a sawed-off shotgun and ammunition was found in the trunk.
Moore argued the evidence seized should have been suppressed because the trooper unlawfully detained him without reasonable suspicion after the traffic stop had ended. Moore also argued the dog’s entry into his car constituted an unlawful search.
• Was Moore unlawfully detained?
• Was there reasonable suspicion to detain Moore after he denied permission to search?
• Was the dog’s entry into the car illegal?
ANSWER: The Federal law Enforcement Informer August 2015 issue (FLETC-Legal Training Division) United States v. Moore, 2015 U.S. App. LEXIS 12510 (10th Cir. Okla. July 20,2015)
1. No he was not. The trooper returned all documents to Moore and even told him to have a good day.
a. Yes, the court said the trooper had reasonable suspicion to believe Moore was involved in criminal activity after returning the documents
b. “The court found Moore’s extreme nervousness, his prior criminal history and the fact that Moore’s name had recently been added to the car’s registration, when considered together, justified Moore’s further detention and dog sniff of his car.”
c. The court said that the dog’s entry into the car was not an illegal search.
TOPIC: SCHOOL USE OF FORCE
Incident #1: A SRO heard a nine year old female tell a coach that she would ‘bust her in the head’ after the coach reprimanded her for failing to participate in jumping jacks. Another coach who heard the same threat called to the girl to reprimand her for her threat. The SRO intervened and insisted that he would handle the threat. The SRO handcuffed the girl behind her back and told her ‘This is how it feels when you break the law,’ and ‘this is how it feels to be in jail.’ The girl began to cry and was released five minutes later. Both coaches said they did not fear the girl would carry out her threat.
Incident #2: An eight year old male student, who was being reprimanded, allegedly threatened to ‘beat the crap’ out of the teacher and swung his fist at her but did not hit her. After being escorted to the principal’s office he allegedly again threatened the principle and SRO. This eight year old was larger than most at 5 1/2 feet and 112 pounds. The SRO handcuffed the student with the intent of taking him to juvenile detention. He realized he knew the parents from previous encounters and called them to come pick up the boy. The boy remained handcuffed until being released to his parents 45 minutes later.
• Was this excessive force?
• Was there a violation of the Fourth Amendment?
ANSWERS: PATC Legal & Liability Risk Management Institute November 2015 Newsletter, Brian Batterton, Attorney. Eleventh Circuit court of Appeals Gray v. Bostic 2006, USSC Graham v. Connor 1989, New Jersey v. T.L.O 1985.
1. Yes. On the first incident the Court first examined if the SRO’s detention was justified at its inception. Since the SRO heard the threat this reasonable suspicion prong was met. The second prong was whether the seizure was reasonable related in scope to the circumstances that justified interference in the first place.
a. The SRO admitted he did not handcuff to arrest her only as subject to an investigatory stop.
b. The Court said there was no threat to anyone’s safety. The incident was over, the girl had promptly complied with her teachers instruction. There was no evidence that the girl wasgesturing or engaging in any further disruptive behavior.
c. Lastly the Court said that the SRO candidly admitted that he handcuffed the girl to persuade her to get rid of her disrespectful attitude and to impress upon her the serious nature of committing crimes. In fact the handcuffing was a punishment the Court said.
2. Yes. On the second incident the court applied the Graham standard. First, the officer must consider the seriousness of the offense at issue. Second, the officer should consider whether the suspect poses a threat to the officer or others. Third, the officer should consider whether the suspect is actively resisting arrest or attempting to evade arrest by flight.
a. Here the Court ruled the initial handcuffing was not objectively reasonable, and his leaving the child handcuffed for forty-five minutes was even less reasonable. The SRO violated the child’s Fourth Amendment rights.
b. The Court further indicated even if the initial handcuffing had been reasonable the scope of the seizure, leaving the child handcuffed for forth-five minutes, even after the parents had arrived, was unreasonable.
3. Based on established case law both SRO’s lost their qualified immunity.
There are two standards that apply to the Use of Force in Schools. Both come from the United States Supreme Court. The first is New Jersey v. T.L.O. Under this standard the use of force
(1) be justified at its inception, meaning supported by reasonable suspicion, and (2) be reasonable in scope in light of the nature of the violation and the age and sex of the student. The second legal standard is Graham v. Connor which was mentioned earlier in this 6-minute training: (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the officer or others, and (3) whether the suspect was actively resisting or attempting to evade arrest by flight.