NO EXPECTATION OF PRIVACY IN PUBLIC CAMPGROUND – PART III

By Marty E. Zemming

Background

 The same facts as before….father (“Basher”) and son are camping on National Forest Service land in Washington.  Nearby campers hear intermittent gunfire coming from a dispersed undeveloped campsite. Campers also observed a campfire when a burn ban was in effect. Among the campers who heard the gunfire were two off-duty law enforcement officers. 

 

The next day, the two officers, a sheriff’s deputy and forest service officer checked into duty and traveled to the campsite to investigate. The deputy noticed that the driver’s side window of a truck was rolled down, and that a box of shotgun shells was lying in plain view. They also observed smoke rising from the fire ring.

 

The deputy announced “Sheriff’s Office” after noticing that the occupants were moving in the tent. The occupants were asked to exit the tent and came out of their own volition.  As they exited, the deputy told them to keep their hands in view. The officers did not have their weapons drawn.

 

The deputy asked Basher where the gun was and he responded “What gun?” The deputy advised him that he had seen the shotgun shells and explained there were reports of gunfire. Basher responded that the gun was in the tent.  The deputy asked Basher if his son could retrieve the gun and Basher nodded affirmatively to his son to get the gun.

 

His son went into the tent and came out with a sawed-off shotgun of illegal length and Basher was arrested and charged for being a prohibited person in possession of a firearm.   Basher filed a motion to suppress. The district court denied the motion finding their interaction with Basher was valid under Terry v. Ohio since they were aware that gunshots had been fired and could determine that the shots came from the dispersed campsite where there was an illegal fire. 

  

Did Basher Consent to the Retrieval of the Shotgun?

Clearly.   In United States v. Basher, the district court found the retrieval of the shotgun was voluntary but did not make a finding on Basher’s consent. The Fourth Amendment provides that people are protected from warrantless searches and seizures. However, consent can be inferred from nonverbal actions, but it must be “unequivocal and specific” and “freely and intelligently given.” United States v. Chan-Jimenez 125 F.3d 1324, 1328 (9th Cir.1997).

 

The deputy asked for Basher’s consent and it was undisputed that Basher affirmatively nodded his head to his son to retrieve the shotgun. Head nods have been found to be express consent and Basher’s consent was specific, clearly defining who would enter the tent (son) and the scope of the activity (get the gun).

 

The totality of the circumstances determines whether consent is “freely and intelligently given.” United States v. Reid 226 F.3d 1020, 1026 (9th Cir.2000). Courts generally look to five factors to determine voluntariness: “(1) whether defendant was in custody; (2) whether the arresting officers had their guns drawn; (3) whether Miranda warnings were given; (4) whether the defendant was notified that [he] had a right not to consent; and (5) whether the defendant had been told a search warrant could be obtained.” United States v. Patayan Soriano 361 F.3d 494, 502 (9th Cir.2004).

 

Basher was not in custody and the officers did not have their guns drawn. The officers did not tell Basher that a search warrant could be obtained if he refused to consent. Basher was not in custody so no Miranda warnings were given. Given, the totality of the circumstances no Fourth Amendment violation occurred.

 

 

 

 

 



Civil Liabilities 101

By:  Dennis E. Wagner

One of the most important concepts for law enforcement officers to learn is what I like to refer to as “Civil Liabilities 101.”  It is recognizing that after an event has occurred that someone might not necessarily need to go to jail. 

As an example, you are on patrol and you see an all terrain vehicle driving on-road and off-road in a reckless fashion.  As you attempt to pursue the all terrain vehicle, the driver gives you the slip because he goes cross country, at the time a helicopter unit has arrived in the area.  The helicopter directs you to the location where the all terrain vehicle has stopped.  The helicopter pilot indicates that the driver of the all terrain vehicle gets out of his vehicle at a residence and an older gentleman comes out of the house and it appears that the older gentleman may have received something from the all terrain driver. 

You arive on scene and gain control of the situation.  You order both parties to the ground.  The older gentleman who is in his 70’s complies and at this time a huge german shepherd comes from the rear of the residence.  The older gentleman starts to put his hand up, you perceive this as an act of resistance and push him back down with your foot, breaking his glasses.  After the dust has settled, the old man tells you he was simply trying to call off the dog with a hand signal.  The dog is not shot in the incident.  A sergeant comes to the scene and decides that the incident should be documented, and no action is taken against the older gentleman. 

In another case, it is believed that a home invasion robbery is ongoing.   You and several officers arrive at the residence which is a condo, garage door is open and the living space is above the garage area.  As you open the door to the residence you hear laughing upstairs.  You order everyone out of the condo at gun point.  Teenagers come down the stairs laughing and joking and then finally an adult male in his 40’s comes down the stairway on a cell phone.  You order him to drop the phone and he starts to become verbal, “What the f * * * are you doing in my house?”  As you order him to stop and put his hands up, he keeps moving toward you and at the base of the stairs, as he steps off towards you, you pull out your pepper spray and give him a blast.  The person is then taken into custody yelling about why you peppered sprayed him.  After the dust is cleared it is determined that the teenagers were filming a school project which involved a bank robbery from the 30’s. You learn that the teenagers did not advise any of the neighbors of what they were doing.  Do you arrest for the 148?

In the first scenario above, there was no arrest made.  The case was no case.  In the second scenario, charges were filed and a criminal case went forward regarding the PC148 violation.  The defendant was found not guilty in the criminal trial and thereafter filed his civil rights lawsuit.  The civil rights case settled before the punitive damage phase against the officers began. 

Moral of the Story:

The moral of the story is that not everyone needs to go to jail.  Just because pepper spray was used or some type of force was used does not mean that an arrest must occur.  The arrest can only compound the situation.  For the alleged home invasion robbery case, instead of taking the dad to jail, had the incident been documented and everyone left, there is no civil rights case remaining.  The actions of the officers can be explained and understood by a jury.  The arrest after the misunderstanding is not so easily understood.

There are many cases that are handled where there is a misunderstanding or mistake which is determined later.  Just because some force was used the person should go to jail? The answer is no.  You have discretion as a peace officer and it is appropriate to utilize that discretion.

NO EXPECTATION OF PRIVACY IN PUBLIC CAMPGROUND – PART II

by Marty Zemming

Background

The same scenario as my last blog.  Father and son are camping on National Forest Service land in Washington.  Nearby campers hear intermittent gunfire coming from a dispersed undeveloped campsite. Campers also observed a campfire when a burn ban was in effect. Among the campers who heard the gunfire were two off-duty law enforcement officers. 

The next day, the two officers, a sheriff’s deputy and forest service officer on duty traveled to the campsite to investigate. The deputy noticed that the driver’s side window of a truck was rolled down, and that a box of shotgun shells was lying in plain view. They also observed smoke rising from the fire ring.

The deputy announced “Sheriff’s Office” after noticing that the occupants were moving in the tent. The occupants were asked to exit the tent and came out of their own volition.  As they exited, the deputy told them to keep their hands in view. The officers did not have their weapons drawn.

The deputy asked the suspect (“Basher”) where the gun was and he responded “What gun?” The deputy advised him that he had seen the shotgun shells and explained there were reports of gunfire. Basher responded that the gun was in the tent and instructed his son to get the gun.

His son went into the tent and came out with a sawed-off shotgun of illegal length and Basher was arrested and charged for being a prohibited person in possession of a firearm.   Basher filed a motion to suppress. The district court denied the motion finding their interaction with Basher was valid under Terry v. Ohio since they were aware that gunshots had been fired and could determine that the shots came from the dispersed campsite where there was an illegal fire.  

Discussion

The parties disputed whether Miranda applied.  Whether Miranda applies depends on whether there has been such a restriction on a person’s freedom as to render him “in custody.” The “ultimate inquiry” underlying the question of custody is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.

Basher argued that he and his son were seized while inside the tent because of the officers’ “show of force.” The Ninth Circuit in United States v. Basher found his arguments unpersuasive.  There was no display of weapons by officers, no use of physical force, no threatening language and no evidence his truck was blocked. Before questioning, Basher and the deputy were making small talk and Basher was smoking a cigarette.

The Ninth Circuit was also unpersuaded by Basher’s claim he was under “duress” because of obscure Forest Service regulations that prohibit campers from interfering with the law enforcement activities. The court found that since the regulation could not trump his Fifth Amendment right against self-incrimination, cooperating out of fear of violating a regulation would be unreasonable.

Basher had not been searched or handcuffed and officers had reliable information that there was at least one gun in the camp. Basher claimed there was no reason to ask about the gun because Basher and his son were unarmed but the officers did not know he was unarmed. “[T]he gun’s actual location is irrelevant because the ‘objectively reasonable need’ for protection is based on what the officers knew at the time of the questioning.” Allen v. Ro, 305 F.3d 1046, 1050-51 (9th Cir.2002)

Regardless, the public safety exception applied to the questioning since there was “an objectively reasonable need to protect the police or the public from any immediate danger associated with the weapon.”

SCENARIO 5

by Tristan Pelayes

The scenario is that you are called to a neighbor dispute over parking vehicles.  You arrive and speak to the reporting party who indicates that her neighbor next door was just at her front door about 30 minutes ago and threatened to hurt her.  The reporting party indicates there is a dispute over a property line and where vehicles can be parked.  The neighbor who allegedly made the threats claims the reporting party is parking on her property, but the reporting party assures you that is not the case and the threatening neighbor is crazy.

You arrive to speak with the threatening neighbor and she comes to the door in her bathrobe.  The front door has a screen door which you opened to knock on the front door to make contact with the neighbor.  The neighbor opens the door to speak with you.  When you ask the neighbor about the threats that were allegedly made she denies making any threats and asks you to leave.  At the same time she tries to close the front door on your person.  As she is trying to close the main door you prevent it from closing with your foot and make entry into the home.  She wants you to leave and you contact a watch commander who is on the way.  At the same time she calls the police claiming that you are breaking into the residence, and dispatch advises that the police are there and she hangs up the phone.  At this point, she decides she wants to go change and says to you that she is going into her bedroom.  You tell her she has to stay in the room and you prevent her from leaving.  She tries to get past you and you try to prevent her from going around you and use pepper spray on her.  After she is sprayed you place her in handcuffs.  By this time her bathrobe is down from the scuffle with her exposed, but you let her 12-year-old son get a towel so she can cover up.

Do you see any entry issues?

Keep in mind the scenario indicates that the alleged threat occurred 30 minutes before you got there.  The reporting party told you that her neighbor threatened to hurt her.  Unfortunately, in this case there was no further inquiry as to what “hurt” meant.  Also, there was not any other inquiry regarding the crazy neighbor’s capability of hurting the reporting party or any background history other than this was a parking dispute.  When the officer went to the front door the neighbor obviously denied making any threats and attempted to close the door.  At that point without any further information or evidence of any actual crime, there was no legal right to prevent the neighbor from closing the door.  Also, there was no legal right to enter the residence.  And of course, the officer in question did not wait for the watch commander before the scuffle began.

Use of force issues?

 Of course, once an entry is made into the house and it is an illegal entry, any use of force thereafter is going to probably be held to be improper.  In this case the scuffle started because the crazy neighbor wanted to go into the bedroom and change.  Naturally, the argument here is that the officer needed to keep an eye on the neighbor because of officer safety reasons.  However, if the entry is improper by then the neighbor has a right to go anywhere in her house.  Without questioning the reporting party about any possible weapons or anything beyond an alleged mere threat, at that point you are basically committing a false imprisonment on the neighbor since you are preventing her from walking around in her own house in a bathrobe.

 Arrest issues?

In this case, because of the scuffle, because of the fact that the neighbor wanted to go change, the officer not only handcuffed her but pepper sprayed her.  The charge: presumably some time of obstruction of justice charge or delaying of an investigation.  However, if the neighbor is free to move around in her own house and you enter her home illegally, any arrest and use of force thereafter would also be illegal.

Now suppose you are the watch commander and you just arrived at the scene.  What do you do as the supervisor, if anything?

The key here is not to compound the problem by actually taking the crazy neighbor to jail and booking her.  I know that a lot of law enforcement officers are taught that if you ever put your hands on somebody, especially if you pepper spray then, well then they have to go to jail.  That is not the case, keep in mind that if all your actions up to that point were illegal you are now just adding a false arrest.  In a civil rights lawsuit if this person has to go through the booking, bail, and then hiring of a criminal defense attorney, you are just compounding the problem.  The booking at the jail does not make all your previous actions legal.  Therefore, as the arriving supervisor sometimes you have to just un-cuff the alleged suspect and apologize.  From that point forward you document as much as you can, and hope the statute of limitations to file a civil rights lawsuit passes.

When is a Person in Custody for Purposes of Miranda?

By:  Dennis E. Wagner

Typically, a custodial interrogation of a suspect requires the advisement of Miranda Rights prior to questioning.  Miranda v. Arizona (1966) 384 U.S. 436.  An interrogation is custodial for purposes of requiring the advisements of Miranda when a person has been taken into custody or otherwise deprived of his freedom in a significant way.  This means that “custody” consists of a formal arrest or a significant restraint upon freedom of movement to such a degree that is associated with that of an arrest.

The interesting issue is when there is no formal arrest, meaning no one has said “You’re under arrest”, whether the officer, understanding all the facts and circumstances, would know Miranda is implicated.  The circumstances concern the interrogation, the location of interrogation, length of time and the form or degree in which the investigation is focused upon the suspect. 

In People v. Moore 2011 D.J.D.A.R. 1725, the case concerned a murder investigation where the defendant was briefly talked to at his trailer, and asked if he would talk further in the deputy’s patrol car.  The patrol car was chosen because it was nighttime, cold and dark and the trailer had no electricity.  In the case, the defendant agreed to the interview in the patrol unit.  The deputy was in full uniform.  At the time, the deputy only believed that the defendant was an important witness because he had stated he had seen the victim that afternoon.  The defendant stated at the beginning of the interview, if he had power he would have invited the police inside his trailer.  The defendant sat in the backseat and asked for the windows to be rolled up and volunteered information about prowlers and missing boards in the backyard fence which led to the house where the murder had taken place.  The Appellate Court looked at whether the statements by the defendant should be suppressed and found that the interview was not clearly a custodial interview which required Miranda Warnings.  The defendant’s participation was requested and the defendant consented.  The location was chosen for a good reason because the residence was not suitable.   The defendant was not searched or handcuffed during the time of the interview; the car doors were locked as he was seated in the backseat, the windows were closed only at his request.  The backdoor to the vehicle was later opened and he was allowed to partially smoke a cigarette with his feet outside the vehicle.  The interview was short and the questions focused on information the defendant had as opposed to questioning the defendant as to his responsibility in the murder.  As a result, the totality of circumstances showed that a reasonable person would believe that the defendant was not in custody for purposes of Miranda.

Contrast this to circumstances which would indicate the person was under arrest, such as not being free to leave, being placed in handcuffs, being searched or other factors such as this.  Had those factors been present, the failure to provide a Miranda Warning may have been fatal in having statements later excluded at trial.

 Moral of the Story:

 The basic information that an officer needs to know is that when the interrogation is custodial, meaning that the person is not free to leave, or is under arrest, then Miranda advisements need to be provided.  When the questioning is background and informational only without factors indicating the person is under arrest, such questioning can take place without the prior advisement of Miranda.

CRIMINALS MAKE THE CRAZIEST ARGUMENTS

By Brandi L. Harper

Not surprisingly, there are several Appeal Court decisions that deal with the crazy arguments made by criminals who are currently incarcerated.  It is likely that so many arguments reach the Court of Appeals because incarcerated individuals have so much time on their hands to come up with creative arguments as to why their convictions are somehow unconstitutional.  The case of United States of America v. Ronald Craig Potter 2011 DJDAR 1488 is no different, but it does provide the perfect example of creative argument by a criminal and the Court’s rejection of it. 

Background

Ronald Craig Potter was convicted under 18 U.S.C. § 924c(1)(a) for possession of a firearm in furtherance of drug trafficking.  Mr. Potter took his case to the Ninth Circuit Court of Appeals arguing that the statute was unconstitutional because it violated his Second Amendment right to bear arms.

Ninth Circuit Court of Appeals Decision

Mr. Potter based his argument on the Supreme Court’s decision in District of Columbia v. Heller 554 U.S. 570, 635 (2008) stated that the right to bear arms was a personal right and therefore the District of Columbia’s ban on firearms in the home violated the Second Amendment, they stated that that case does not cause the statute which Mr. Potter was convicted under to be unconstitutional.

The Supreme Court pointed out that previous rulings as well as the Second Amendment dealt with the lawful possession of a use of a firearm.  The Supreme Court stated “It cannot seriously be contended that the Second Amendment guarantees a right to use a firearm in furtherance of drug trafficking.”  The Court upheld Mr. Potter’s conviction as the Court found the statute he was convicted under to be lawful.

Moral of the Story

Individuals convicted of a crime will make any argument to try and reverse a conviction.  They will also challenge the constitutionality of anything if it could mean freedom.  While this case shows an extraordinarily creative argument in order to overrule a conviction, many criminals don’t need to be quite as creative.  Officers often deal with situations in which criminals are clearly guilty but will try to find a creative legal loophole to either escape a conviction or file civil suit against officers.  While sometimes these creative arguments work, as in this case, the Court will often reject these arguments when the argument is laughable.

SUSPECT DOES NOT ENJOY EXPECTATION OF PRIVACY IN PUBLIC CAMPGROUND

by Marty Zemming

Background

Campers on National Forest Service land in Yakima County, Washington heard intermittent gunfire coming from a dispersed undeveloped campsite on the bank of the South Fork River. Campers also observed a campfire, although a burn ban was in effect. Among the campers who heard the gunfire were two off-duty law enforcement officers.  Campers and one of the officers identified the dispersed campsite as the source of the firing.

The two off-duty officers, a sheriff’s deputy and forest service officer checked into duty the following morning and traveled to the dispersed campsite to investigate.

The deputy noticed that the driver’s side window of a truck was rolled down, and that a box of shotgun shells was lying in plain view on the driver’s seat and was half-empty. They also observed smoke rising from the fire ring.

Upon drawing closer to the tent, the deputy announced “Sheriff’s Office” after noticing that the occupants were moving within the tent. The occupants were asked to exit the tent, and they came out of their own volition.  As the individuals exited the tent, the deputy told them to keep their hands in view. The officers did not have their weapons drawn.

The deputy asked the suspect (“Basher”) where the gun was and he responded “What gun?” The deputy advised him that he had seen the shotgun shells and explained there were reports of gunfire coming from the campsite. Basher responded that the gun was in the tent and instructed his son to retrieve the gun. The officers did not enter the tent at any point.

The son went into the tent and came out with a sawed-off shotgun that was of an illegal length and Basher was arrested and charged for being a prohibited person in possession of a firearm.   Basher filed a motion to suppress.

The district court denied the motion. The court found both officers were aware that gunshots had been fired and were able to determine from witness statements that the firing came from the dispersed campsite where there was an illegal fire.  The officers’ conduct was found lawful under Terry v. Ohio.

On appeal, Basher relied on United States v. Struckman, 603 F.3d 731 (9th Cir.2010), where the Ninth Circuit reversed the conviction of a fleeing felon who threw a backpack over the fence of an unoccupied home.  The court in Struckman ruled a backyard was “curtilage,” subject to Fourth Amendment protections, and held the Terry exception to the warrant requirement did not apply in homes.

SO IS A CAMPSITE CURTILAGE SUBJECT TO FOURTH AMENDMENT PROTECTIONS?

In most cases…probably not.  The Supreme Court has  defined curtilage by reference to four factors: proximity of the area to the home, the nature of the uses to which the area is put, whether the area is included in an enclosure around the home, and the steps taken by the resident to protect the area from observation. While these factors can be employed with reasonable certainty in the urban residential environment, campsites have layouts that are vague or undefined, and individuals often camp in areas that are not predetermined campsites.

In United States v. Basher, the Ninth Circuit found Basher’s seizure claim distinguishable from Struckman because police officers entered Struckman’s backyard, while the Bashers left the tent voluntarily.

Further, classifying the area outside of a tent in a campsite as curtilage is problematic. A tent is comparable to a house, apartment, or hotel room because it is a private area where people sleep and change clothing. However, campsites, such as Basher’s dispersed and undeveloped site, are open to the public and exposed.  Basher’s camp was visible from the developed camping area where the officers had stayed the previous night.

Bottom line was that there was no expectation of privacy in the campsite, and that the area outside of the tent in these circumstances is not curtilage.

BRADY v. MARYLAND AND WHAT IT MEANS TO YOU

by Dennis Wagner

The US Supreme Court decided Brady v. Maryland in 1963 and told that prosecutors have a duty to disclose all exculpatory evidence to an accused who is standing trial.  Subsequent case law interpreting Brady had found exculpatory evidence to include evidence that relates to a witnesses credibility to impeach the witness at trial.  The obligation to turn over this “exculpatory evidence” to the criminal defense is an ongoing duty of the prosecutors, and if violated could jeopardize the criminal case and could form the basis for a later civil rights lawsuit in the future. 

The problem for police officers is that a police officer must always tell the truth.  If you were initially to give a version of events to your department and the department ends up having their internal affairs department examine that same event, if you were to provide a statement that was different, this could now be considered a “Brady” issue. You have been found to be untruthful.

So this means that there is only one version of the events and the event is as described by you the first time.  There’s an old adage from the late Senator Sam Erwin from the Watergate hearings involving the investigation of Richard Nixon where he stated “if you tell the truth the first time it doesn’t matter how many times you tell it”. 

For police officers, it can be a career ending or career threatening to have been determined to have lied to your department.  This effects your ability to testify in criminal cases in the future.  The fact that your were found to have been untruthful is something that would have to be turned over to the defense in every criminal case.  You do not want your credibility ever to be questioned.  It’s difficult enough to do your job and appear in court at the last minute to testify in a criminal case to begin with.   To have the added burden of being subjected to cross examination in a criminal case based upon conduct where you were untruthful lends a whole new meaning to cross examination of you at the time of trial. 

Moral of the story

The moral of the story is that there is but one truth and that is what you say the first time.  There is no other profession that has the same scrutiny as police officers which exposes a police officer to the potential loss of his job if he is untruthful during the performance of his job.  This is something that may not necessarily apply to a doctor or to a lawyer but does apply to a police officer.  Police officers are seen by the public and by jurors as having higher ethical standards.  Forget the fact that in a civil rights case the plaintiff may be lying through his or her teeth; the scrutiny the police officer must go through is more difficult.  But rightfully so, since the officer is being entrusted with the authority that an officer has and the performance of his or her job duties.  So the parting shot is simply…tell the truth and Brady will never been an issue for you.

SEARCH WARRANTS 101

by Risa Christensen

From time to time it doesn’t hurt to review the essentials of search warrant preparation.  Insufficient preparation is the cause of many lawsuits and dismissal of criminal charges. Keep in mind that if the search warrant is too broad and not supported by probable cause, it may be found unconstitutional in a challenge.

Take the recent case of Millender v. County of Los Angeles, 620 F.3d 1016 (9^th Cir. 2010).  In this case the plaintiffs, Augusta Millender, Brenda Millender, and William Johnson filed a lawsuit against the County of Los Angeles, the Los Angeles County Sheriff’s Department, and several individual members of the Sheriff’s Department, alleging violations of their civil rights following a search pursuant to a warrant obtained by LA Sheriff Department detectives. The court determined the search warrant was unconstitutional due to overbreadth.

The officers started out doing the right thing. They responded to a call to help Shelly Kelly who was a victim of spousal abuse at the hands of Jerry Ray Bowen, whom she had been dating. Bowen had physically assaulted Kelly, attempted to throw her over the top railing of the second story landing of their residence, grabbed her, bit her, and tried to drag her by the hair back into their residence. Bowen also shot at her with a “black sawed off shotgun with a pistol grip.”  Kelly reported the shooting, described Bowen’s firearm as a “black sawed off shotgun with a pistol grip.” Kelly identified Bowen from a photo line up and told a Detective of Bowen’s current address.  This was confirmed through police agency records and state records.

A “Ramey Warrant” was completed and a “Search Warrant and Affidavit” prepared for the residence. The warrant listed a search for the black sawed off shotgun, but also included a search for all handguns, rifles, or shotguns of any caliber, or any firearms capable of firing ammunition, or firearms or devices modified or designed to allow it to fire ammunition, all caliber of ammunition, miscellaneous gun parts, gun cleaning kits, holsters which could hold or have held any caliber handgun being sought.  

Sheriff Detectives knew Bowen had a gang affiliation and included “Articles of evidence showing street gang membership or affiliation with any Street Gang to include but not limited to any reference to “Mona Park Crips”, including writings or graffiti depicting gang membership, activity or identity.

The search failed to find Bowen or a black sawed-off shotgun with a pistol grip. However, officers did find and take Augusta Millender’s personal shotgun, and a box of .45 caliber “American Eagle” ammunition, which the court found did not match in any way, the gun described in the search warrant.  Bowen was later arrested.

In their lawsuit the Millenders, (who were Bowen’s foster parents), alleged violations of their Fourth and Fourteenth Amendment rights due to the broad scope of the search warrant. The court found that the arrest warrant was facially valid, but the warrant’s authorization to search for and seize all firearms, firearm-related materials, and gang-related items was unconstitutionally overbroad because the affidavit did not set forth any evidence indicating that Bowen owned or used other firearms, that such firearms were contraband or evidence of a crime, or that such firearms were likely to be present.    The court said that nothing in the warrant or the affidavit provided any basis for concluding there was probable cause to search for or seize a generic class of firearms and firearm-related materials.  The court concluded that “probable cause did not exist to seize all items of those particular types.”

The court reminds us that the Fourth Amendment of requiring “specificity,” has two aspects, “particularity and breadth.” Particularity is the requirement that the warrant must clearly state what is sought. Breadth deals with the requirement that the scope of the warrant be limited by the probable cause on which the warrant is based.” In determining whether a warrant’s description is sufficiently specific to meet these Fourth Amendment requirements, consider the following questions:

(1) whether probable cause exists to seize all items of a particular type described in the warrant; (2) whether the warrant sets out objective standards by which executing officers can differentiate items subject to seizure from those which are not; and (3) whether the government is able to describe the items more particularly in light of the information available to it at the time the warrant was issued.

A broader search warrant may sometimes be valid if the warrant establishes standards that are sufficiently specific to “reasonably guide the officers in avoiding seizure of protected property” and to allow judicial review “to determine whether the instructions were followed and legitimate property and privacy interests were protected.” The court said, “In short, the deputies had probable cause to search for a single, identified weapon, whether assembled or disassembled. They had no probable cause to search for the broad class of firearms and firearm-related materials described in the warrant.”

The court acknowledged that warrants may sometimes authorize a search for classes of generic items if the government was not able to describe the items more particularly in light of the information available to it at the time the warrant was issued, but where the police do have specific information describing the evidence or contraband, a warrant authorizing a search and seizure of a broader class of items is invalid.

The court conceded that deputies do have a valid interest in protecting themselves and the public from potentially violent and dangerous suspects, but this is when the “search incident to arrest” doctrine allows an officer to take into account the inherent hazards raised by an arrestee’s potential access to firearms.  It does not mean that an officer can necessarily assume there will be additional other dangerous weapons and include them broadly into the search warrant.  A police officer’s valid safety concerns do not create a “fair probability” that a broad class of weapons may be found in a suspect’s residence or that such items are contraband or evidence of a crime.

As for the search warrant’s authorization to search for all gang-related items, the court said that assertions that Bowen was a known gang member did not provide probable cause for a magistrate to conclude that “contraband or evidence of a crime,” would be found at the residence. Merely being a gang member or having gang ties is not a crime in California and LASD had no reason to believe that Bowen’s assault on Kelly was related to gangs, nor was there any evidence to suggest it.  The deputies failed to establish any link between gang-related materials and a crime so the warrant authorizing the search and seizure of all gang-related evidence is invalid.

Moral of the Story

Remember that your warrant must be supported by probable cause. If it is later challenged, you are going to have to be able to articulate the basis for probable cause and to show a relationship to the items being seized with the crime.  When you have specifics to seize don’t state general categories since this can lead to the warrant being found invalid.

LIABILITY IN HIGH SPEED POLICE CHASES

by Brandi Harper

Everybody has seen the breaking news reports of high speed police chases.  They are a common occurrence here in California and seem to interrupt any television program.  They all end in different ways, either through police maneuvers or the suspect running out of gas, or in some instances, in crashes.  However, many wonder what the liability of the police agency is in instances in which a suspect loses his life during the course of a high speed police chase.  The Supreme Court, in County of Sacramento v. Lewis has provided the clearest answer as to liability for officers in this regard.

Factual Background

A Sacramento County Sheriff’s Deputy responded to a call to break a fight.  Upon returning to their patrol car, they saw a motorcycle approaching at a high rate of speed.  It was operated by 18-year old Brian Willard and carried Phillip Lewis, the 16-year old decedent as a passenger.  Neither boy had anything to do with the fight that prompted the call to the police.

The officers attempted to pull the motorcycle over.  The motorcyclist failed to stop and a pursuit at high speed began.  For 75 seconds over a course of 1.3 miles, in a residential neighborhood, the motorcycle wove in and out of oncoming traffic and both the motorcycle and patrol car reached speeds of up to 100 miles per hour.  The patrol car was following at a distance as short as a hundred feet.  The chase ended when the motorcycle tipped over as Willard tried a sharp left turn.  By the time the officer slammed on his brakes, Willard was out of the way, but Lewis was not.  The patrol car skidded into him at 40 mph propelling him some 70 feet down the road and inflicting massive injuries.  Lewis was pronounced dead at the scene.

The Summary of the Lawsuit

The parents of the motorcycle passenger killed brought a Section 1983 claim against the County, Sheriff’s Department, and Deputy, alleging deprivation of passenger’s substantive due process right to life.  The United States District Court for the Eastern District of California granted summary judgment for defendants, and the Court of Appeals reversed as to the Deputy.  The Supreme Court held that (1) Fourth Amendment reasonableness standard did not apply, (2) high speed police chases with no intent to harm suspects physically do not give rise to liability under Fourth Amendment, and (3) allegations that pursuit was undertaken with deliberate indifference to passenger survival was insufficient to state substantive due process claim.

The Supreme Court’s Reasoning

The Supreme Court reviewed this case in order to resolve a conflict among the Circuits over the standard of culpability on the part of a law enforcement officer for violating substantive due process in a pursuit case.  The Supreme Court reversed the Ninth Circuit.  The Supreme Court determined that a deliberate indifference standard should not apply to high speed pursuits because officers do not have a chance to second guess.  Therefore, the Court found that to be liable, an officer faced with making an immediate decision must have intended to physically harm the fleeing offender.

The Supreme Court’s opinion gave the following reasoning as to why the officer was not liable under § 1983.  Smith was faced with a course of lawless behavior for which the police were not to blame. They had done nothing to cause Willard’s high-speed driving in the first place, nothing to excuse his flouting of the commonly understood law enforcement authority to control traffic, and nothing (beyond a refusal to call off the chase) to encourage him to race through traffic at breakneck speed forcing other drivers out of their travel lanes. Willard’s outrageous behavior was practically instantaneous, and so was Smith’s instinctive response. While prudence would have repressed the reaction, the officer’s instinct was to do his job as a law enforcement officer, not to induce Willard’s lawlessness, or to terrorize, cause harm, or kill. Prudence, that is, was subject to countervailing enforcement considerations, and while Smith exaggerated their demands, there is no reason to believe that they were tainted by an improper or malicious motive on his part.

Regardless whether Smith’s behavior offended the reasonableness held up by tort law or the balance struck in law enforcement’s own codes of sound practice, it does not shock the conscience, and the officers are not called upon to answer for it under § 1983.

Moral of the Story

In order for an officer to be liable for injuries sustained to an individual during a high speed chase, the plaintiff must show more than deliberate indifference.  While this is not a license for officers to be reckless, it should allow officers the peace of mind to pursue suspects in high speed chases.  However, it is important that officers comply with their department’s policies regarding high speed chases.