TRI-STATE POLICE LEGAL BULLETIN
AZ-CA-NV POLICE LEGAL CASES
Edward J. Cooper, B.A., J.D.
email: ejc_1998@yahoo.com
Laughlin, NV
JULY 2010
FEDERAL
"SHOCK THE CONSCIENCE" CASE
Crowe v. County of San Diego
No. 05-55467, 6/18/10
9th Circuit Court of Appeal
This civil rights case arose from the investigation and prosecution of innocent teenagers for a crime they did not commit. Michael Crowe, Aaron Houser, and Joshua Treadway were wrongfully accused of the murder of Michael's 12-year-old sister Stephanie Crowe in the City of Escondido. After hours of grueling, psychologically abusive interrogation-during which the boys were isolated from their families and had no access to lawyers-the boys were indicted on murder charges and pre-trial proceedings commenced.
A year later, DNA testing revealed Stephanie's blood on the shirt of a transient, Richard Tuite, who had been seen in the Crowes' neighborhood on the night of the murder and reported by several neighbors for strange and harassing behavior. The shirt had been collected as part of the initial investigation, but never fully tested. Charges against the boys were eventually dropped, and Tuite was convicted of Stephanie's murder.
Michael, Aaron, Joshua, and their families filed a complaint against multiple individuals and government entities who had been involved in the investigation and prosecution of the boys. The complaint alleged, amongst other claims, constitutional violations under the Fourth, Fifth, and Fourteenth Amendments, and defamation claims. In two separate orders, the district court granted summary judgment in favor of the defendants as to the majority of the plaintiffs' claims.
The Crowes and the Housers appealed the bulk of those orders and several defendants cross-appealed the district court's denial of summary judgment on qualified immunity grounds as to several claims. The 9th Circuit Court of Appeals, in a 66 page decision, affirmed in part and reversed in part.
Michael and Aaron allege that defendants Blum, Wrisley, Sweeney, Claytor, McDonough, and Anderson violated their Fifth Amendment privilege against compelled self incrimination. In granting summary judgment for defendants, the district court concluded that Michael and Aaron's Fifth Amendment claims failed for two reasons. First, the district court required that a compelled statement be introduced in a criminal trial in order to create a Fifth Amendment cause of action. Second, the district court concluded that a Fifth Amendment cause of action can never arise against a police officer, because the harm is the introduction of the statement at trial and the police officer will never be the proximate cause of that harm. The 9th Circuit reversed the district court.
The prosecution of Michael and Aaron did not cease with the boys' interrogations. Rather, the boys were indicted and the case against them continued for a year, up and until the eve of trial. During this time, statements obtained during the boys' interrogations were used in several pre-trial proceedings.
The 9th Circuit held that the use of Michael's and Aaron's statements in the pre-trial proceedings gives rise to a Fifth Amendment cause of action. The "707 hearing" was held to determine whether the boys would be incarcerated in Juvenile Detention prior to trial. Pre-trial incarceration is a deprivation of liberty and an important part of any "criminal case." A grand jury proceeding is at the heart of a "criminal case." Without an indictment, there is no trial. Thus, all of the pre- trial proceedings in which plaintiffs' Fifth Amendment rights were violated give rise to § 1983 claims.
In summary, the 9th Circuit held that a Fifth Amendment cause of action against the relevant defendants arose when Michael and Aaron's coerced statements were introduced against them during pre-trial proceedings. Further, the defendants are not entitled to qualified immunity. In 1998, when defendants interrogated Michael and Aaron, the clearly established rule in the 9th Circuit was that a § 1983 cause of action for a violation of the Fifth Amendment's Self-Incrimination Clause arose as soon as police employed coercive means to compel a statement. As such, defendants cannot claim the protection of qualified immunity.
Second, the Due Process Clause of the Fourteenth Amendment protects against any government conduct that "shocks the conscience." Michael and Aaron allege that defendants Blum, Wrisley, Sweeney, Claytor, McDonough, and Anderson violated their Fourteenth Amendment substantive due process rights by using interrogation techniques so coercive as to "shock the conscience." The district court granted summary judgment for defendants, concluding that the defendants' actions did not "shock the conscience." The 9th Circuit reversed.
The Crowes and the Housers presented testimony from several expert and lay witnesses in support of their argument that the interrogations of Michael and Aaron violated the boys' substantive due process rights. Dr. Richard Leo, an expert in coerced confessions, described Michael's interrogation as "the most psychologically brutal interrogation and tortured confession that I have ever observed." Dr. Calvin Colarusso, Director of Child Psychiatry Residence Training Program at the University of California, San Diego, conducted a psychiatric evaluation of Michael and characterized his interrogation as "the most extreme form of emotional child abuse that I have ever observed in my nearly forty years of observing and working with children and adolescents." Robert Puglia, former Chief Deputy District Attorney for Sacramento County, testified in a sworn declaration that Michael's statements were the product of a "coercive police scheme." And finally, a juror in Tuite's criminal trial, who viewed the videotapes of the boys' interrogations, described the interrogations as "brutal and inhumane" and "psychological torture."
The Court stated that one need only read the transcripts of the boys' interrogations, or watch the videotapes, to understand how thoroughly the defendants' conduct in this case "shocks the conscience." Michael and Aaron-14 and 15 years old, respectively - were isolated and subjected to hours and hours of interrogation during which they were cajoled, threatened, lied to, and relentlessly pressured by teams of police officers. "Psychological torture" is not an inapt description. The interrogations violated Michael's and Aaron's Fourteenth Amendment rights to substantive due process.
STREET STANDING ORDINANCE UPHELD
Comite De Jornaleros De Redondo Beach v City of Redondo Beach
No. 06-55750, 6/9/10
9th Circuit Court of Appeal
This case raises a First Amendment challenge to Redondo Beach Municipal Code § 3-7.1601, which prohibits the act of standing on a street or highway and soliciting employment, business, or contributions from the occupants of an automobile.
In 1986 the 9th Circuit Court of Appeal previously upheld a virtually identical ordinance against a constitutional challenge. (ACORN v. City of Phoenix). The Court reached the same result in this case and held that the Redondo Beach ordinance is a valid time, place, or manner restriction. Accordingly, the contrary decision of the district court was reversed.
INVOKING MIRANDA MUST BE UNAMBIGUOUS
Berghuis v. Thompkins
No. 08-1470, 6/1/10
United States Supreme Court
After advising respondent Thompkins of his rights, in full compliance with Miranda, Detective Helgert and another Michigan officer interrogated him about a shooting in which one victim died. At no point did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. He was largely silent during the 3-hour interrogation, but near the end, he answered "yes" when asked if he prayed to God to forgive him for the shooting.
He moved to suppress his statements, claiming that he had invoked his Fifth Amendment right to remain silent, that he had not waived that right, and that his inculpatory statements were involuntary. The trial court denied the motion.
At trial on first-degree murder and other charges, the prosecution called Eric Purifoy, who drove the van in which Thompkins and a third accomplice were riding at the time of the shooting, and who had been convicted of firearm offenses but acquitted of murder and assault. Thompkins' defense was that Purifoy was the shooter. Purifoy testified that he did not see who fired the shots.
During closing arguments, the prosecution suggested that Purifoy lied about not seeing the shooter and pondered whether Purifoy's jury had made the right decision. Defense counsel did not ask the court to instruct the jury that it could consider evidence of the outcome of Purifoy's trial only to assess his credibility, not to establish Thompkins' guilt. The jury found Thompkins guilty, and he was sentenced to life in prison without parole.
On appeal, the Michigan Court of Appeals rejected both Thompkins' Miranda and his ineffective-assistance claims. A federal district court denied hearing, but the Sixth Circuit reversed, holding that the state court was unreasonable in finding an implied waiver of Thompkins' right to remain silent.
The United States Supreme Court reversed. The state court's decision rejecting Thompkins' Miranda claim was correct under de novo review. Thompkins' silence during the interrogation did not invoke his right to remain silent. A suspect's Miranda right to counsel must be invoked "unambiguously." If the accused makes an "ambiguous or equivocal" statement or no statement, the police are not required to end the interrogation, or ask questions to clarify the accused's intent.
There is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel. Both protect the privilege against compulsory self-incrimination by requiring an interrogation to cease when either right is invoked. Had Thompkins said that he wanted to remain silent or that he did not want to talk, he would have invoked his right to end the questioning. He did neither.
Thompkins waived his right to remain silent when he knowingly and voluntarily made a statement to police. A waiver must be "the product of a free and deliberate choice rather than intimidation, coercion, or deception" and "made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Such a waiver may be "implied" through a "defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver."
If the State establishes that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver. The record here shows that Thompkins waived his right to remain silent. First, the lack of any contention gave up when he spoke. Second, his answer to the question about God is a "course of conduct indicating waiver" of that right. Had he wanted to remain silent, he could have said nothing in response or unambiguously invoked his Miranda rights, ending the interrogation. That he made a statement nearly three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver. Third, there is no evidence that his statement was coerced. He does not claim that police threatened or injured him or that he was fearful. The interrogation took place in a standard-sized room in the middle of the day, and there is no authority for the proposition that a 3-hour interrogation is inherently coercive.
The fact that the question referred to religious beliefs also does not render his statement involuntary.
Thompkins argues that, even if his answer to Helgert could constitute a waiver of his right to remain silent, the police were not allowed to question him until they first obtained a waiver. However, a rule requiring a waiver at the outset would be inconsistent with prior holding that courts can infer a waiver "from the actions and words of the person interrogated." Any waiver, express or implied, may be contradicted by an invocation at any time, terminating further interrogation.
When the suspect knows that Miranda rights can be invoked at any time, he or she can reassess his or her immediate and long-term interests as the interrogation progresses. After giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived Miranda rights. Thus, the police were not required to obtain a waiver of Thompkins' Miranda rights before interrogating him.
SECOND AMENDMENT IS FUNDAMENTAL RIGHT
McDonald v. City of Chicago
No. 08-1521, 6/28/10
United States Supreme Court
Two years ago, in District of Columbia v. Heller, the United States Supreme Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense and struck down a District of Columbia law that banned the possession of handguns in the home.
Chicago and the village of Oak Park, a Chicago suburb, have laws effectively banning handgun possession by almost all private citizens. After Heller, petitioners filed this federal suit against the City, which was consolidated with two related actions, alleging that the City's handgun ban has left them vulnerable to criminals. They sought a declaration that the ban and several related City ordinances violate the Second and Fourteenth Amendments.
Rejecting petitioners' argument that the ordinances are unconstitutional, the district court noted that the Seventh Circuit previously had upheld the constitutionality of a handgun ban, that Heller had explicitly refrained from opining on whether the Second Amendment applied to the States, and that the court had a duty to follow established Circuit precedent. The Seventh Circuit affirmed.
The United States Supreme Court reversed and the case was remanded. The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States. The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner.
NOT LIABLE FOR JAILHOUSE SUICIDE
Simmons v. Navajo County, Arizona
No. 08-15522, 6/23/10
9th Circuit Court of Appeals
After allegedly molesting a ten-year-old girl at an elementary school playground, Jasper Simmons was arrested by the Pinetop-Lakeside Police Department and charged in Arizona Superior Court with sexual conduct with a minor under fifteen years old. Jasper was only seventeen years old at the time, but because of the nature of the crime, he was charged as an adult and ordered into adult detention at Navajo County Jail in Holbrook, Arizona.
Navajo County Jail very rarely housed juveniles, who are required by Arizona law to be physically segregated from adults with no sight or sound contact between the juvenile and any charged or convicted adult. Jasper was assigned to a special two-room cell ("I-pod"), the only one in the jail that provided the required sight-and-sound segregation.
On May 21, 2005, he underwent an initial inmate assessment, in which he denied receiving mental health counseling, having suicidal thoughts, or having a family history of suicide. A week later, however, Jasper informed a detention officer that he had tried to kill himself by cutting his left wrist with a razor. Jasper was taken to the nurses' station, where Nurse Genie Greason cleaned and dressed his wounds, which she described on his chart as "superficial cuts + scrapes + abrasions." Nurse Greason ordered Jasper to be placed on Suicide Watch Level I, which is designated for inmates who are imminently suicidal.
Level I required constant observation and documentation of the inmate's behavior every fifteen minutes, a face-to-face evaluation by medical staff at least once a day, and additional evaluation by the Community Counseling Center if warranted. Under Level I, an inmate was required to wear a special smock that could not be used as a suicide implement, and any potentially dangerous items were removed from the inmate's cell. Moreover, the inmate could not participate in any programs or activities.
The jail's medical staff saw Jasper every day from May 28 to June 3. His treatment chart indicates that his wounds were regularly cleaned and dressed, and that he denied having suicidal thoughts. Nurse Debra Jones referred Jasper to see Maggie Lange, a licensed clinical social worker at the Community Counseling Center who visited the jail weekly.
On June 3, Lange evaluated Jasper, who again denied having suicidal thoughts. Lange noted that Jasper had a history of taking antidepressants and had recently attempted suicide. She recommended that he see Ellen Morse, a nurse practitioner specializing in mental health issues, and that he remain on suicide watch.
On June 8, Nurse Jones decided to downgrade Jasper to Suicide Watch Level II, which is designated for inmates whose behavior indicates emotional instability. Like Level I, Level II required documented checks every fifteen minutes and daily face-to-face evaluations by medical staff. Level II inmates could wear regular clothing, but the items in their cell were still restricted, and they were still prohibited from participating in programs and activities.
On June 10, Jasper saw Lange again and asked for antidepressants, but he denied suicidal ideation. He reported feeling better now that he was allowed to have books but also reported having difficulty sleeping. On June 15, he saw Morse, who recorded his history of taking antidepressants and his suicide attempt but noted that he denied suicidal ideation. She diagnosed him with depression and prescribed an antidepressant. She arranged for a two-week follow-up visit.
At his next weekly visit with Lange on June 17, Jasper reported that he was "doing better," and she noted that he appeared "less depressed." He told her that he talked to his parents every day. The following week, on June 24, he again reported that he was doing better and could "tell the medicine is working." Lange noted that his mood had improved and that he appeared stable. Nevertheless, on June 27, Nurse Jones decided to keep Jasper on Level II watch as a precaution until his case management conference on July 19.
On June 29, Morse conducted another psychiatric interview. She noted that Jasper was "doing better overall" and reported being in a "better mood." Although Jasper reported feeling isolated and lonely and still had trouble sleeping, he was seeing his family weekly and reading more. Morse observed that Jasper seemed "more relaxed and talkative" and "less depressed."
On July 1, Nurse Greason documented that Jasper seemed "cheerful" and was "looking forward to seeing [his] parents." At that time, he denied suicidal ideation yet again.
On Saturday, July 2, Sergeant Albert Warren was the officer in charge of Navajo County Jail. That day, three detention officers were out sick, and there were at least nine inmates on suicide watch, which was a record high for the jail. It was also an extremely busy day at the jail, given that it was a visitation day during the Fourth of July weekend. That afternoon, Jasper visited with his family from about 1:30 to 2:40 p.m. His father reported that Jasper was in "pretty good spirits," and his mother recalled that "he was in a good mood." Neither of his parents suspected that he would attempt suicide later that day.
Sergeant Warren took Jasper back to his cell around 2:50 p.m. but did not notice anything amiss in terms of Jasper's demeanor. Sergeant Warren checked in on Jasper again at 4:35 p.m. when he delivered a dinner tray. At 5:20 p.m., while retrieving dinner trays from the inmates, Sergeant Warren responded to a security breach in the medical pod where all of the medications for the inmates were stored. Afterward, he proceeded to booking, where he briefed Officer Tim Robinson, Jr., who was relieving him of duty that evening, on the security breach.
At 5:46 p.m., an hour and eleven minutes after Sergeant Warren last checked on Jasper, Officer Randall Ratcliff visited Jasper's cell to collect his dinner tray. At that time, he discovered Jasper "hanging from the top slide lock of his cell door by what appeared to be some type of home made rope." The rope was fabricated from medical gauze, presumably his old wrist wound dressings. Jasper was pronounced dead at 6:50 p.m.
Jasper's parents, Wesley and Sharon Simmons, filed a complaint against various jail personnel, their supervisors, and Navajo County in the Navajo County Superior Court. The Simmonses asserted claims under state tort law, 42 U.S.C. § 1983, and the Americans with Disabilities Act, 42 U.S.C. § 12132 ("ADA"). Navajo County removed the case to the United States District Court for the District of Arizona.
The parties filed cross-motions for summary judgment, and the district court granted Navajo County's motion and denied the Simmonses' motion. The Simmonses' timely appealed from the district court's summary judgment to Navajo County.
The 9th Circuit Court of Appeals upheld the judgment.
NOMINAL DAMAGES STILL ALLOWS ATTORNEY FEES AND COST
Guy v. City of San Diego
No. 08-56024, 6/17/10
9th Circuit Court of Appeal
Anthony Guy left a bar in the San Diego nightlife district near its closing time on January 2, 2005. Guy had consumed four beers during his three-and-one-half hours at the bar, but he testified that he was not intoxicated when he left. Just outside the bar, Guy saw someone punch another person in the back of the head, and he saw two other people come to the aid of the initial puncher. Guy joined the fight and punched at least one person from behind.
Meanwhile, San Diego Police Department Officer David Maley and several other SDPD officers were stationed across the street to monitor the area as bars closed for the night. Maley heard another officer, fellow defendant Richard W. Garcia, yell "fight," and Maley observed the fight involving Guy.
The parties dispute the following events. Guy testified at trial that Maley approached him from behind and grabbed him without first identifying himself as a police officer. Guy said that he threw the unknown assailant off him but in so doing Guy's sweatshirt was pulled up and blocked his vision. Guy said he then punched and hit the other person and at that point heard Maley identify himself as a police officer.
Maley testified, on the other hand, that he approached Guy from the front at an angle and yelled "police" as he approached. Maley said that Guy threw a punch at him but missed. Maley testified that he then grabbed Guy and, as Guy pulled back, Guy's sweatshirt came completely off and did not obscure Guy's vision. Maley said Guy then faced him in a fighting stance and thereafter Maley pulled Guy to the ground and pinned him.
Guy testified that once Maley identified himself as a police officer he ceased all resistance for the duration of the incident. Maley testified, however, that Guy continued to struggle and resist after Maley pinned him down and that in response Maley sprayed Guy in the face with pepper spray. Guy did not claim that Maley sprayed him with pepper spray at that point.
The parties do not dispute that after Maley pinned Guy to the ground, Maley handcuffed Guy and led him across the street to a police car. As Maley searched Guy, Guy said, "Why don't you relax a little bit there, tough guy?" Maley then performed a control maneuver during which Guy, while handcuffed, was thrown to the ground. Officers Garcia and Kevin Friedman then assisted Maley in helping to control Guy. At some point while Guy was on the ground near the police car, Maley applied pepper spray directly onto Guy's face. Guy testified that despite offering no resistance, Maley and the other officers repeatedly kicked and beat him.
Maley, Garcia, and Friedman all testified, however, that Guy was not compliant but instead was yelling, cursing, and thrashing his legs. They also testified that Guy was generally physically combative, even after Maley placed him in handcuffs. Friedman and Garcia claimed that they did not beat Guy but only placed their feet on him to stop him from kicking and to assist Maley in controlling him.
A third-party witness confirmed the officers' account that they did not punch or kick Guy. The parties agreed that Guy did not resist after Maley applied pepper spray (for the second time, according to Maley's testimony). Guy testified that several of Maley's actions injured him. Guy claimed that Maley tightened the handcuffs so much that they caused painful welts on his wrists. He also contended that when Maley threw him to the ground the impact tore skin off his shoulder and face. Guy further testified that after throwing him to the ground, Maley yanked and injured Guy's thumb. Finally, Guy claimed that the pepper spray caused him excruciating pain. Eventually, Maley and Garcia drove Guy to SDPD headquarters, where Guy complained of multiple injures, specifically to his thumb, and then drove Guy to the hospital for treatment. The parties do not dispute the nature of Guy's injuries.
The SDPD conducted an internal affairs investigation of the incident, which exonerated Maley of any wrongdoing. The district court excluded from trial all evidence relating to the internal affairs investigation at the request of the defendants.
Guy filed a civil complaint against the City of San Diego and officers Maley, Friedman, and Garcia alleging, among other things, that the officers used excessive force in violation of Guy's Fourth Amendment rights and 42 U.S.C. § 1983. The jury returned a special verdict in favor of the defendants on all claims, except that the jury determined that Maley, and not Garcia or Friedman, "violate[d] Plaintiff's Fourth Amendment right to be free from excessive force." The jury also found that "the action(s) of [Maley] cause[d] injury, damage, loss, or harm to Plaintiff." However, the jury awarded no compensatory or punitive damages.
Because of the possible incongruity between the jury's verdict finding a violation and injury but awarding no damages, the district court told the parties it would instruct the jury to award at least one dollar in nominal damages for a constitutional violation, even if it found no compensatory damages. Guy's counsel responded: "I think that's exactly what I'd like them to do." The district court prepared a supplemental special verdict form that asked the jury, "What amount of nominal damages do you award against Defendant Maley" on the Fourth Amendment claim and also asked the jury for its award of punitive damages, if any. Guy's counsel did not object to the wording of the supplemental special verdict form. The jury then awarded one dollar of nominal damages and no punitive damages.
Guy appealed seeking a new trial solely on damages. Guy also appeals the district court's decision not to award him attorney's fees and nontaxable costs as the prevailing party in the lawsuit.
The 9th Circuit Court of Appeal concluded that substantial evidence supported the jury's damages verdict, but reversed the district court's decision not to award costs and attorney's fees.
CALIFORNIA
HE REFUSED A TEST
Garcia v. DMV
A126130, 5/28/10
1st District Court of Appeal
On December 6, 2008, at approximately 12:24 a.m., San Francisco Police Department officers McNamara and Khan were on duty and driving their patrol car southbound on Mission Street. McNamara observed a black Ford Explorer driving ahead of him that, without any warning or signal, swerved over the center, double yellow line. After the Ford returned to its lane, it slowed from about 20 miles per hour to about seven miles per hour. The Ford then sped back up to about 25 miles per hour.
McNamara pulled the vehicle over. McNamara contacted the driver, later identified as Garcia, and asked him why he was driving as he was. Garcia said that he did not understand. McNamara smelled the strong odor of an alcoholic beverage coming from Garcia's breath and observed that Garcia was chewing something. McNamara told Garcia to remove what he had in his mouth. After asking why and again being ordered to remove it, Garcia eventually removed a piece of gum from his mouth. McNamara asked Garcia if he had been drinking before driving. Garcia said that he had not. However, McNamara observed that Garcia's eyes were bloodshot and that Garcia was sweating, even though it was cold outside. McNamara recognized these as objective signs of alcohol intoxication.
McNamara had Garcia exit his vehicle to perform field sobriety tests. Before beginning the tests, Garcia stated that he was in good health and did not have any physical ailments. Garcia also again stated that he had not consumed any alcohol or other drugs that night. McNamara advised Garcia that each test would be explained and demonstrated and he should let the officer know if he did not understand any instructions. McNamara noticed that Garcia was still chewing gum and again told him to spit it out. Garcia asked "why?" He was told that it was necessary for his mouth to be empty for the tests. When Garcia began to argue, McNamara demanded that he remove the gum. Garcia paused, but then removed the gum from his mouth.
After each test was explained and demonstrated, Garcia indicated that he did not understand. After repeated explanations, he eventually attempted to perform each test. Garcia was evasive and repeatedly mentioned that he knew SFPD officers and started listing their names. Garcia also asked if he could just be driven home. Based on observations of Garcia's driving, his symptoms of alcohol intoxication and his performance on the field sobriety tests, McNamara determined that Garcia was driving while under the influence of alcohol and was unable to safely operate a motor vehicle. Garcia was arrested at 12:43 a.m.
While in the patrol car and still at the scene, Garcia was advised that he was required by law to submit to either a blood test or a breath test and that he needed to choose one. Garcia became very evasive and asked McNamara to look in his wallet for a list of SFPD officers he knew. Garcia was asked several more times which test he wanted to take. Garcia asked what the officer recommended. McNamara told Garcia that he could not recommend a test and that Garcia needed to choose.
After several minutes passed, Garcia was told that if he did not decide, McNamara would decide for him. Garcia stated that was okay with him. McNamara told Garcia he would be taking a breath test. McNamara also advised Garcia that if he did not cooperate and perform the breath test as ordered, it would be considered a refusal and he would lose his driving privileges for a year. Garcia stated that he understood and would comply with the breath test.
Garcia was transported to county jail where he was first observed for 15 minutes, as required for the breathalyzer test. During those 15 minutes, Garcia did not place anything in his mouth, belch, or vomit. When Garcia was told to sit in the chair in front of the breathalyzer machine, he stated that he wanted to take a blood test. McNamara told Garcia that he believed Garcia was trying to stall the test to reduce his blood alcohol content and that Garcia needed to comply or his conduct would be considered a refusal and he would lose his driving privileges for a year. Garcia sat down and began the test at 1:15 a.m.
McNamara explained that Garcia needed to place his lips on the mouthpiece and blow strongly and steadily until the machine beeped. Garcia said that he did not understand. McNamara again explained that he needed to place his lips on the mouthpiece and blow steadily until the machine beeped. After receiving this explanation at least three more times, Garcia put his lips on the mouthpiece and blew for about one and a half seconds before stopping, without the machine beeping. He was told that he needed to try again and received yet another explanation of what was required.
Garcia argued with McNamara for a few minutes and then was again advised that if he did not comply, it would be considered a refusal and he would lose his driving privileges for one year. Garcia said he would comply, but just stared at the mouthpiece. At 1:20 a.m., McNamara deemed Garcia's lack of cooperation a refusal to take a chemical test. McNamara ordered a phlebotomist, who arrived at 1:40 a.m. and obtained blood samples from Garcia at 1:50 a.m. The blood test revealed that Garcia's blood alcohol content at the time of the test was 0.28.
The Department of Motor Vehicles suspended Benito Garcia's driving privileges for refusal to submit to, or failure to complete, a chemical test for blood alcohol content (Veh. Code, § 13353, subd. (a)(1)). Garcia sought an order from the trial court, via petition for writ of administrative mandamus, directing the DMV to set aside the suspension. He appeals the trial court's denial of his petition. Garcia argues that he did not refuse a chemical test of his blood alcohol content. The Court of Appal affirmed.
EXIGENT CIRCUMSTANCES JUSTIFIED ENTRY
People v. Chung
B212210, 6/3/10
2nd District Court of Appeal
Keith Chung was charged by information with two counts of cruelty to an animal and possession of a controlled substance. (Pen. Code, § 597, subd. (a); Health & Saf. Code, § 11350, subd. (a).) Prior to trial, Chung moved to suppress evidence seized during a search of his residence on the theory the police lacked exigent circumstances justifying warrantless entry. The trial court conducted a hearing on the motion.
Chung's neighbor, Jennifer Lee, testified she called the police in the early morning hours of July 13, 2007, and reported hearing the high pitched crying of a dog in pain in the unit above hers. Lee told the officers who responded to her call that she had heard similar sounds in the past, but this time it sounded more serious. The officers went to Chung's door but he said he did not own any dogs.
While the officers spoke to Chung, one of them heard the faint sound of a dog whimpering inside Chung's condominium. Believing there was an animal in distress, the officers entered without a warrant after Chung refused the officers permission to enter. The officers found an injured dog on the patio and a dead dog in the freezer section of the refrigerator. Both dogs had suffered head trauma. The live dog on the patio was euthanized by a veterinarian later that morning.
The trial court denied the motion to suppress, finding it was reasonable under the circumstances for the officers to enter the condominium without first obtaining a warrant in order to aid a live animal the officers reasonably believed was in distress.
Chung thereafter pled no contest to one count of violating section 597, subdivision (a) and the remaining counts were dismissed. The trial court sentenced Chung to 16 months in state prison.
On appeal, Chung contends the trial court erroneously denied his motion to suppress evidence. The Court of Appeal concluded exigent circumstances permitted warrantless entry of Chung's residence to aid a live animal police officers reasonably believed was being abused in violation of section 597, subdivision (a). The judgment was affirmed.
ARIZONA
INVENTORY SEARCH WAS OK
State of Arizona v. Organ
CR090141, 6/17/10
Court of Appeal, Div. 1
On December 18, 2007, at approximately 1:30 a.m., Officer Lamb of the Department of Public Safety was patrolling southbound on the Beeline Highway in an unmarked vehicle. He observed Organ's automobile stopped on the shoulder of the northbound lanes with its four-way emergency flashers activated. The officer continued southbound until he could turn around safely and then headed back to the stopped vehicle to perform a welfare check and determine if the motorist was stranded and needed assistance.
When he was within 300 feet of the vehicle, Officer Lamb turned on his rear emergency lights. As he did so, the officer noticed that the emergency flashers were off and Organ was driving slowly on the shoulder. The officer activated his front emergency lights to alert Organ that he was a law enforcement officer. Organ stopped on the side of the highway and the officer approached him.
When Officer Lamb asked Organ if everything was alright, Organ told the officer that he had stopped on the side of the road because he was tired and sleepy. The officer observed that Organ had a lethargic speech pattern consistent with someone who could be sleep-deprived. In accordance with his routine practice when encountering drivers who may be sleepy, the officer had Organ exit his vehicle and walk around to ensure he was not driving impaired and could drive home safely.
While speaking with Organ, Officer Lamb became suspicious of his female passenger after Organ said he did not know her name, but also told him he had known her for a couple of days. The passenger did not have any identification. Based on statements she made that were inconsistent with those made by Organ and her admission that she had a prior conviction for prostitution, the officer believed he had encountered a "prostitution situation."
Officer Lamb asked Organ if he would consent to a search of his vehicle, but Organ declined. The officer stated he would have a K-9 unit sniff around his vehicle, and Organ responded that he had no problem with that. The officer ran a check on Organ's driver's license and determined that it had been suspended. When the officer asked about the reported suspension, Organ admitted his license was suspended due to his failure to appear in court.
The officer informed Organ that he had to impound his vehicle and told him he was not free to go. Pursuant to DPS policy, Officer Lamb conducted an inventory search of the vehicle prior to having it towed. In the front center console, the officer found a "stem or crack pipe" containing what was later confirmed to be crack cocaine, together with a baggie of methamphetamine and a small plastic container with additional crack cocaine.
Organ appealed his convictions for possession of narcotic drugs, possession of dangerous drugs, and possession of drug paraphernalia. Organ argues that the trial court erred in denying his motions to suppress the drugs and drug paraphernalia found in his vehicle.
The Court of Appeal disagreed and affirmed.
PROPERTY WAS NOT FENCED COMMERCIAL
State of Arizona v. Hinden
CR20090111, 6/4/10
Court of Appeal, Div. 2
In August 2008, Ron S., the owner of a local business, called the Tucson Police Department to report that a person was inside the fenced yard of a nearby property where he knew "no one was supposed to be." The property formerly had housed a demolition business, and the person appeared to be removing copper pipes from a large appliance which lay in the yard.
When Detective Richmond Holley arrived at the scene, he observed Hinden inside the large fenced yard "bending over [and] picking items up that looked to be metal pipe, scrap metal" and then moving them to another location. Holley spoke briefly with Ron; when he looked back in the yard, Hinden was outside the fence. A box containing various pieces of scrap copper was near Hinden on the ground, and some loose scrap metal was on the ground near the box. An officer testified the total value of the scrap metal Hinden had in his possession was about ten dollars.
After a jury trial, Jeffrey Hinden was convicted of third-degree burglary pursuant to A.R.S. § 13-1506(A)(1). The trial court sentenced him to a mitigated term of 1.5 years. imprisonment.
On appeal, he argues the state presented insufficient evidence to support his conviction because it failed to prove the property he had entered was a "fenced commercial yard" as defined in A.R.S. § 13-1501(4). The Court of Appeal agreed and vacated his conviction.
MUST GET WARRANT IF ARRESTEE DECLINES TEST
Carrillo v. The Hon. Houser
CV090285PR, 6/7/10
Arizona Supreme Court
Police officers arrested Jose Carrillo for driving under the influence and related offenses. He was taken to a DUI van, where further action was delayed because Carrillo vomited for about thirty minutes. While Carrillo was sitting on the steps of the van, an officer placed a large toolbox on Carrillo's lap and another officer drew a blood sample. The officers did not obtain a warrant before administering the test.
Under Arizona's implied consent law, A.R.S. § 28-1321 (Supp. 2009), a person arrested for driving under the influence is asked to submit to testing, such as a blood draw, to determine alcohol concentration or drug content. If the arrestee refuses the test - and the statute deems a failure to expressly agree to be a refusal - the arrestee's license is administratively suspended.
The Court held that the statute generally does not authorize law enforcement officers to administer the test without a warrant unless the arrestee expressly agrees to the test. The Court vacated the opinion of the court of appeals and remand this case to the municipal court to determine whether Carrillo expressly agreed to the blood draw in accordance with the implied consent law.
NEVADA
EXPERT MUST TESTIFY
Polk v. State
126 Nev. Adv. Op. No. 19, 6/3/10
Nevada Supreme Court
In 1999, Polk was indicted for shooting and killing Walter Hodges at a bus stop in Las Vegas. Shots fired from a stationary vehicle struck Hodges, who was standing near the vehicle's passenger window. Witnesses subsequently saw the vehicle flee the scene with one occupant inside. The vehicle belonged to Leslie Harris, Polk's girlfriend, who had permitted Polk to use the vehicle on the night of the shooting.
During the investigation, detectives took forensic samples from the vehicle to be tested for gunshot residue. In preparation for Polk's trial, a total of five samples were tested by Michelle Fox, a gunshot residue analyst. Samples 1-3 were taken from the vehicle that investigators believed would contain gunshot residue, sample 4 was a "control" sample taken from the vehicle, and sample 5 was an unapplied piece of adhesive also tested as a "control" sample. The State did not receive the test results until the trial had already commenced. Therefore, Fox did not testify at trial and none of the gunshot residue samples were admitted as evidence. Polk was, nevertheless, convicted of first-degree murder with use of a deadly weapon and discharging a firearm out of a motor vehicle.
Eventually, the Ninth Circuit Court of Appeals determined that the jury instructions in Polk's trial were unconstitutional. The court instructed the federal district court to grant Polk's petition for a writ of habeas corpus "unless the State elected to retry Polk within a reasonable time."
The State retried Polk in 2008. Prior to Polk's second trial, the State requested that certain gunshot residue samples be re-tested. Because Fox had retired and was unavailable for Polk's second trial, Laurie Kaminski re-tested samples 1 and 3 but did not re-test sample 2 or the "control" samples (samples 4 and 5). At trial, Kaminski was qualified as a gunshot residue expert and testified about her test results for samples 1 and 3. Over the objection of defense counsel, Kaminski was also permitted to testify regarding the test results of control sample 5, which had been previously tested by Fox but not Kaminski.
Specifically, Kaminski testified that "[Fox] reported finding no gunshot residue particles on that sample." At the conclusion of the second trial, Polk was convicted of second-degree murder with the use of a deadly weapon and discharging a firearm out of a motor vehicle.
In his opening brief, Polk argues that his constitutional right to confrontation under the Sixth Amendment of the United States Constitution and Crawford v. Washington and Melendez-Diaz v. Massachusetts, two United States Supreme Court cases, was violated when the findings of a gunshot residue analyst who did not testify at trial and was not subject to cross-examination were admitted. In its answering brief, the State failed to directly address the Crawford and Melendez-Diaz issue or argue, alternatively, that any potential constitutional violation was harmless error. Polk argues in his reply that because the State failed to respond to Polk's alleged constitutional violation, it effectively confessed error.
The Nevada Supreme Court agreed and reversed and remanded for a new trial.
MAJOR CASE REVIEW
PRIVACY VIOLATION
Katz v. United States
389 U.S. 347 (1967)
United States Supreme Court
Katz was convicted under an indictment charging him with transmitting wagering information by telephone across state lines in violation of 18 U.S.C. 1084. Evidence of Katz's end of the conversations, overheard by FBI agents who had attached an electronic listening and recording device to the outside of the telephone booth from which the calls were made, was introduced at the trial.
The Court of Appeals affirmed the conviction, finding that there was no Fourth Amendment violation since there was "no physical entrance into the area occupied by" Katz.
The United States Supreme Court reversed. The Government's eavesdropping activities violated the privacy upon which Katz justifiably relied while using the telephone booth and thus constituted a "search and seizure" within the meaning of the Fourth Amendment.
The Fourth Amendment governs not only the seizure of tangible items but extends as well to the recording of oral statements. Because the Fourth Amendment protects people rather than places, its reach cannot turn on the presence or absence of a physical intrusion into any given enclosure.
Although the surveillance in this case may have been so narrowly circumscribed that it could constitutionally have been authorized in advance, it was not in fact conducted pursuant to the warrant procedure which is a constitutional precondition of such electronic surveillance.
Summary may also be viewed at fpk11a@msn.com by clicking on the century station site..
************************************************************