by BL SMITH POST REGION III, training coordinator.
UTAH PEACE OFFICER ASSOCIATION REGION A REPRESENTATIVE
SCENARIO: While assisting on a fatal accident where the driver was killed by decapitation in a one car accident you think it won’t hurt to take some of the pictures at the scene and e-mail them to your friends as a joke (since it is Halloween).
1. If you took pictures with your own camera or cell phone would that be OK?
ANSWER: Christos Catsouras et al, Plaintiffs and Appellants, v. Department of the California Highway Patrol et al., January 2010.
a. No, and that is a big NO! I would venture to bet that ‘most’ law enforcement agencies would have some type of policy against this. It would come under something like prohibited speech, conduct, or expression. Common sense comes to mind here as well.
b. The Catsouras incident mentioned in the scenario above had a tremendous impact on the CHP (not to mention the family of the deceased who received several e-mails from around the country that were hurtful and mean in their content). The court case mentioned that there would be cause for action even if the troopers had only shown the photo’s to coworkers “Liability can attach even if photographs or videos are viewed only by curious coworkers.”
TOPIC: INDEPENDENT SOURCE DOCTRINE
SCENARIO: While on patrol you make traffic stop, find warrants on the driver, arrest him and impound his car. While searching the trunk you find drugs and add a possession charge. You write your report and it is submitted to the prosecutor’s office that declines to file the charge of possession on the driver.
Why would that be?
1. The police report written indicated the drugs were found incident to arrest. Would that be the reason the case was declined?
2. How could the report have been written to allow the drugs found in the trunk to be admitted into evidence and the case filed?
ANSWERS: Devallis Rutledge, prosecutor and special counsel to the Los Angeles County district attorney. From
his article ‘The Independent Source Doctrine’ January 2012 Police Magazine-Point of Law.
The case was declined because under New York v. Belton; and Arizona v. Gant search incident to arrest extends only to the passenger compartment-not the trunk.
The report did not contain enough information. Had the report indicated the car was impounded pursuant to inventory policy of the officers department the drugs would have been admissible and the case filed by the DA’s office.
a. “The independent source doctrine allows admission of evidence that has been discovered by means wholly independent of any constitutional violation.” (Nix v. Williams)
b. “It is clear from our prior holdings that the exclusionary rule has no application where the government learned of the evidence by means wholly independent of any constitutional violation.” (Segura v. U.S.)
c. “The ‘independent source’ doctrine permits the introduction of evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from lawful activities untainted by the initial illegality.” (Murray v. U.S)
2. In the hypothetical scenario above had the police report contained information on both the search incident to arrest and the impound inventory search the prosecutor could have used that information to file possession charges.
3. “Whether a Fourth Amendment violation has occurred turns on an objective assessment of the officer’s actions in light of the circumstances confronting him at the time and not on the officer’s actual state of mind at the time the challenged action was taken.” (Maryland v. Macon)
a. What this means, as an example, if you are serving a search warrant on a parolee with his parole officer the search warrant can be found tainted and thrown out you would still have the ‘parole search’ as lawful. Hence you were not going in on the strength of the parole search but the search warrant. Any evidence would still be admissible because the parole search would still be legal.
SCENARIO: Responding with other officers to a call of suspicious men you approach the group to view two smoking marijuana. Detaining the group you frisk the two smoking marijuana and find weapons on them. Based on this you prone out the other six where a bulge is seen in the small of Williams back. A gun is found.
1. Was the detention of all eight lawful?
2. Was the frisk of the two smoking marijuana lawful?
3. Was the detention & frisk of the other six lawful?
1. Yes, of course, these two men were openly committing a crime by smoking marijuana.
2. Yes, again, they were openly committing a crime in public place and can be arrested immediately.
3. Yes. The argument by Williams is there was no particular suspicion that he (they) were armed and dangerous (Which would permit a Terry Stop and Frisk).
4. Here there was no ‘suspicion’ that a crime as afoot. The crime was openly being committed by two of the eight men present.
The court differentiated between ‘suspected’ criminal activities with actual criminal activity being committed. Here actual criminal activity was ‘afoot’ so the detention of all present was lawful
Here the court addressed the ‘detention’ of Williams which led to his frisk after the officer spotted the bulge in the small of his back. The court did not address whether a frisk of the other five was lawful.
TOPIC: DETENTION/ SCOPE/CONSENT ON TRAFFIC STOP
SCENARIO:Officer Speeth makes a lawful traffic stop for a tail light violation. Three occupants were in the car (a rental car) with Gomez in the back seat not wearing his seatbelt. The driver’s license was suspended and he had a history of drug trafficking. While issuing the traffic citation a drug dog arrived (within 5 minutes). The drug dog indicated the possible presence of narcotics.
The car and occupants were searched without finding any narcotics. During the search of the car a parking permit for a hotel not 100 feet away was found on the dashboard along with $4000 in cash in the shoe of the driver.
Gomez denied visiting any hotels and said his mother lived in Provo. Speeth called the hotel and found there was a room registered in Gomez’s name. 3040 minutes have elapsed by this time.
Gomez was asked why he lied about the hotel room. Gomez stammered a bit and gave inconsistent explanations.
It was at this time that Speeth felt that in all likelihood there were narcotics inside the hotel room. He based this on: Driver’s criminal history, Gomez rented a hotel room notwithstanding his mother lived in Provo, the rental car, the dog alert, the $4000 in the driver’s shoe, the inconsistent explanations, and the initial lie about the hotel room.
Officers asked Gomez for consent to search the hotel room. Gomez replied that he “did not want to be put in that kind of a position.” Feeling that the other two occupants of the car may have something incriminating inside the hotel room and Gomez did not want to expose them officer’s again requested consent to search the hotel room. Gomez’s response, or the gist of it was, that if the other two passengers would agree then he was “okay with it.”
Both of the other occupants denied ever being in the hotel room or having any claim to anything in the room. Gomez then, after hearing this, shrugged his shoulders and agreed to let the officers in.
Speeth walked to the hotel room with Gomez, who was not handcuffed or physically restrained. Gomez used his key card to open the door. After finding cocaine, marijuana, a digital scale and measuring spoon inside the hotel room Gomez admitted the drugs were his and was arrested.
1. Was the use of the drug dog during this traffic stop legal?
2. Was the search of the vehicle and its occupants legal after the alert by the drug dog?
3. After Gomez’s initial denial to search his motel room should the officer’s have released Gomez and his companions?
4. After the ticket was written was there enough reasonable suspicion of criminal activity to transition this traffic stop into an investigative detention?
5. From Gomez’s initial denial of consent 42 minutes elapsed before his arrest. Was 42 minutes too long to detain and outside the ‘scope’ of the detention? If not, why?
ANSWERS: Utah Court of Appeals State v. Gomez, April 5, 2012
1. Yes, the use of the drug dog was legal as it was used during the scope of the initial traffic stop. Gomez appeal stipulated to this fact.
2. Yes, based on the drug dog alert the car and occupants may be searched. Gomez appeal stipulated to this fact.
3. No. Here the court ruled: “Thus, a brief investigative detention of a suspect who has refused consent, like any other official detention, is lawful to the extent it is supported by reasonable suspicion, and the investigating officer acts diligently to pursue a means of investigation likely to quickly confirm or dispel that suspicion.”
4. Yes. The court continued in their ruling: “Gomez’s own response to the officer’s request suggested a further avenue of investigation. When the officer made the original request, Gomez did not consent, but neither did he categorically refuse consent. He gave a response from which the officer inferred that ‘some of the other occupants had something incriminating inside the hotel room.’ That inference cued up the next logical step in the investigation: determining whether Gomez’s companions would object to a search of the hotel room.”
5. No, 42 minutes was not too long. The court ruled:
“Indeed, courts routinely hold post-refusal detentions to be supported by pre-refusal reasonable suspicion under an ordinary totality-of-the-circumstances analysis.” In the final conclusion the court said “The officer had the same reasonable suspicion after the refusal as before. And he had a ready means of continuing to diligently pursue it, which he did by asking Gomez’s companions if they objected to a search of the room. Because Gomez has not shown that his continued detention was illegal, he cannot show that his ultimate consent was involuntary as the product of an illegal detention. Consequently, we affirm.”
a. The court cited several cases of detention up to and
including an 88 minute detention that was affirmed because the officer’s diligently pursued investigative leads.