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United States Supreme CourtSummary of Law Enforcement Cases 2004-2005 Term

United States Supreme Court

Summary of Law Enforcement Cases 2004-2005 Term

Each term, the United States Supreme Court decides cases having a direct impact on various aspects of law enforcement operations. During the 2004-2005 term, the Court decided 5 such cases touching on day to day operations in law enforcement. These cases have been detailed in the legal update as they were decided; this article is intended to provide law enforcement officers with an annual one-stop summary of the cases.

Probable Cause

In Devenpeck v. Alford, 543 U.S.___, 2004 U.S. LEXIS 8272 (2004), the United States Supreme Court examined a case where officers, with probable cause to arrest a subject, Jerome Alford for impersonating a police officer, instead arrested him for tape recording the officers during the investigatory stop. A previous court decision held that it was not illegal to tape police officers during a stop. In the ensuing lawsuit, the United States Court of Appeal determined that only probable cause for a closely related offense would save the officers from liability and impersonating a police officer was not a closely related offense to violation of the state privacy act by tape recording.

While on patrol, Officer Haner of the Washington State Patrol observed a broken down motorist on the opposite side of the highway. Prior to Officer Haner’s arrival at the disabled motorist, Jerome Alford pulled up behind the motorist with wig-wag headlights activated. When Officer Haner arrived, Alford quickly left, leaving his flashlight behind. The motorist who had broken down asked Officer Haner if the quickly departing Alford was a police officer. The motorist inquired based upon Alford’s lights as well as conversation at the scene.

Officer Haner notified his supervisor, Sergeant Davenpeck of his concern that Alford was impersonating a police officer. Haner then pursued and pulled Alford over. He noted that Alford had a police radio on the front seat and was monitoring radio calls; that he had a police scanner and handcuffs. Alford reported that his wig-wag lights were part of a newly-installed alarm system and that he could not activate them. Officer Haner noted that there was a switch neat Alford’s leg that he would not touch. [It turned out that this switch activated the wig-wag lights]

Sergeant Devenpeck responded to the scene and was briefed by Officer Haner. As Devenpeck was questioning Alford, he noticed a tape recorder running in the record mode on the front seat. Sergeant Devenpeck listened to the recording which contained the conversation from the stop. He then ordered Alford arrested for violating the Washington State Privacy Act which required all-parties to conversation- consent for recording. The sergeant attempted to contact a prosecutor from the scene after Alford reported that he had a copy of a state court decision in his glove box which allowed such a recording.

Alford was taken to the police station and a prosecutor was called. The prosecutor outlined various charges including the impersonating charge for which there was probable cause. Sergeant Devenpeck reported that it was the policy of the State Patrol not to “stack charges” and that he would simply charge Alford with the charge related to the tape recording. The charge was subsequently dismissed due to a state court decision and Alford filed a lawsuit alleging that he was arrested without probable cause.

The United States Supreme Court overturned the decision of the 9th Circuit in reiterating the position that an officer’s subject intent [with respect to the charge being brought] is irrelevant. Under the 4th Amendment a court must determine probable cause from the standpoint of the objectively reasonable officer standing in the arresting officers’ position. Here, there was objectively reasonable basis for finding probable cause to believe that Alford was impersonating a police officer and obstructing the officers, therefore the arrest was valid. The court expressly rejected any notion that officers must have probable cause for the stated offense or some closely-related offense. Officers simply must have an objectively reasonable belief that probable cause exists to arrest for some offense.

Handcuffing during Warrant Execution Upheld

United States Supreme Court

On March 22, 2005 the United States Supreme Court re-examined the question as to whether officers may detains occupants of a residence where they are executing a search warrant and whether handcuffing is appropriate in such circumstances. The case, Muehler v. Mena, ___U.S.___, 125 S.Ct. 1465 (2005) involved a search warrant for, among other things, guns following a gang-related drive-by shooting. During the execution of the search warrant, police handcuffed the uninvolved occupants of the residence for two to three hours while they conducted their search.

In reversing the 9th Circuit the Supreme Court reiterated its decision in Michigan v. Summers, 452 U.S. 692 (1981) where it held that police may detain the occupants of a residence where a search warrant is being executed. The Court noted that the reason for such detentions is to prevent flight “in the event that incriminating evidence is found; minimizing the risk of harm to the officers; and facilitating the orderly completion of the search as detainees self- interest [against property destruction caused by search] may induce them to open locked doors or locked containers to avoid the use of force.” The Court asserted that the detention here was clearly permissible under Summers. Such detentions do not require any heightened suspicion such as reasonable suspicion- “Thus, Mena’s detention for the duration of the search was reasonable under Summers because a warrant existed to search 1363 Patricia Avenue and she was an occupant of that address at the time of the search.”

In dealing with the issue of handcuffing during such detentions the Court asserted: “Inherent in Summers’ authorization to detain an occupant of the place to be searched is the authority to use reasonable force to effectuate the detention…Indeed, Summers itself stressed that the risk of harm to officers and occupants is minimized ‘if the officers routinely exercise unquestioned control of the situation.’” The Court noted that the application of handcuffs was a greater intrusion than that authorized by Summers, but then noted that the search here was not an ordinary search. The police in this case were searching for weapons and a wanted gang member. “In such inherently dangerous situations, the use of handcuffs minimizes the risk of harm to both the officers and occupants…Though this safety risk inherent in executing a search warrant for weapons was sufficient to justify the use of handcuffs, the need to detain multiple occupants made the use of handcuffs all the more reasonable.”

The concurring opinion by Justice Kennedy is important in this case because it swung the majority and thus has some weight in consideration of police operations. Justice Kennedy began by asserting: “I concur in the judgment and in the opinion of the Court. It does seem important to add this brief statement to help ensure that police handcuffing during searches becomes neither routine nor unduly prolonged.” Justice Kennedy pointed out that the use of handcuffs is a use of force and therefore in all cases must be objectively reasonable. He noted that if the search “extends to the point when the handcuffs can cause real pain or serious discomfort, provision must be made to alter the conditions of detention at least long enough to attend the needs of the detainee. This is so even if there is no question that the initial handcuffing was objectively reasonable. The restraint should also be removed if, at any point during the search, it would be readily apparent to any objectively reasonable officer that removing the handcuffs would not compromise the officers’ safety or risk interference or substantial delay in the execution of the search.” While indicating that the 2-3 hour detention in this case approached excessive, Justice Kennedy concluded that it was not by pointing out that the detainees outnumbered the number of officers guarding them and that this could not be remedied without taking other officers from the search itself.

Canine Sniffs of Vehicles

In United States v. Place, 462 U.S. 696 (1983), the United States Supreme Court held that a canine sniff by a drug detection dog of the exterior of a motor vehicle in a public place, would not implicate the Fourth Amendment. If a drug detection dog were to alert on the vehicle, officers would then have probable cause to believe that the vehicle contained narcotics and would be able to search the vehicle under the motor vehicle exception to the warrant requirement. As with all police action, the underlying core transaction would still have to be valid, otherwise the sniff and development of probable cause would be the fruit of the poisonous tree. For example, if officers were to stop a vehicle for no justifiable reason, the sniff and subsequent search would be invalidated.

In United States v. Caballes, 543 U.S. ___(2005), the United States Supreme Court re-examined the issue of canine sniffs of lawfully stopped motor vehicles. A state trooper, Daniel Gillette, of the Illinois State Police stopped Caballes for speeding on an interstate highway. When the Gillette called out on the stop, a second trooper, Craig Graham, a member of the agencies drug interdiction team, proceeded to the scene with a narcotics detection dog. As Trooper Gillette wrote Caballes a warning ticket, Trooper Graham walked his canine around the vehicle. The dog alerted on the trunk prompting the officers to conduct a search. The officers seized marijuana from the trunk. The court noted that the entire chain of events lasted less than 10 minutes.

Caballes appealed his case, arguing that before officers could utilize a drug detection canine, they must have some level of suspicion to believe that the automobile contains narcotics. The Illinois Supreme Court agreed with Caballes, leading to the state’s appeal to the United States Supreme Court. The only question addressed by the Court was whether officers need some level of suspicion before utilizing a canine to sniff the exterior of a lawfully stopped vehicle.

In its analysis of the case, the United States Supreme Court noted that a valid traffic stop that is prolonged beyond its initial purpose may violate the Constitution. The Court asserted: “A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission. In an earlier case involving a dog sniff that occurred during an unreasonably prolonged traffic stop, the Illinois Supreme Court held that use of the dog and the subsequent discovery of contraband were the product of an unconstitutional seizure. People v. Cox, 202 Ill. 2d 462, 782 N. E. 2d 275 (2002). We may assume that a similar result would be warranted in this case if the dog sniff had been conducted while respondent was being unlawfully detained.”

The Court went on to conclude that a canine’s sniff of the exterior of a vehicle while the lawful traffic stop was occurring would not violate the rights of a citizen. Only in cases where the stop was prolonged beyond its original purpose in order for the canine to respond to the scene and conduct the sniff would rights be violated.

Qualified Immunity In Use of Force Cases

An individual officer’s greatest shield in a lawsuit that alleges a violation of civil rights is qualified immunity. A decision by the United States Supreme Court in December, further clarified the strength of this immunity.

In Brosseau v.Haugen, 543 U.S.___; 2004 U.S. LEXIS 8275 (2004), the United States Supreme Court examined a case involving the use of deadly force by Officer Brosseau of the Puyallup, Washington Police Department who shot Kenneth Haugen in the back as he fled in his vehicle from the police.

The concept of qualified immunity involves shielding a police officer from a lawsuit where the officer’s actions do not violate clearly established federal rights. In other words, where the law is unclear on a particular course of conduct an officer does not have notice that the conduct is wrong and is immune from suit.

In analyzing whether an officer is entitled to qualified immunity, a court undertakes a two-step process. The first step asks the question: Did the officer’s conduct violate the constitution? If the answer to this question is no, then the officer is not liable and the case is over. During this analysis the court looks at all the facts in the light most favorable to the person suing the police officer. If the answer to this first question is yes, the officer’s conduct did violate some right then the court proceeds to a second question. The second question is: Was the right so clearly established that a reasonable police officer would know that his or her conduct violated the right. If the answer to this question is “no” the officer again escapes liability because he or she did not know that the conduct in question was bad. Only if the answer is that a reasonable police officer was on notice that the conduct was bad, could the lawsuit proceed. [This two-step process was outlined by the United States Supreme Court in Saucier v. Katz, 533 U.S. 194 (2001).]

In Brosseau v. Haugen, the United States Court of Appeal for the 9th Circuit had ruled that Officer Brosseau was not entitled to qualified immunity in her use of deadly force against Kenneth Haugen. Officer Brosseau began investigating Haugen as the result of a complaint filed by Glen Tamburello, a former crime partner of Haugen, who reported that Haugen had stolen tools from him. During her investigation, Officer Brosseau learned that Haugen had felony warrants for his arrest.

The following day, Tamburello confronted Haugen in Haugen’s driveway. The confrontation escalated to a full-blown disturbance which prompted the response of the police, including Officer Brosseau. When Officer Brosseau arrived, Haugen fled on foot. While officers searched for Haugen they “instructed Tamburello and Atwood to remain in Tamburello’s pickup. They instructed Deanna Nocera, Haugen’s girlfriend who was also present with her 3-year-old daughter, to remain in her small car with her daughter. Tamburello’s pickup was parked in the street in front of the driveway; Nocera’s small car was parked in the driveway in front of and facing the Jeep [Haugen’s Jeep]; and the Jeep was in the driveway facing Nocera’s car and angled somewhat to the left. The Jeep was parked 4 feet away from Nocera’s car and 20 to 30 feet away from Tamburello’s pickup.”[The detailed analysis of the vehicles positions is important to the Court’s decision as to potential threat to Nocera and her child as well as Tamburello and Atwood when Haugen attempted to flee in the Jeep]

At some point Haugen was spotted and Officer Brosseau pursued him on foot to his Jeep. Brosseau believed that Haugen was running to the Jeep to retrieve a weapon. Haugen entered the Jeep and locked the door. He then began rummaging for his keys. Officer Brosseau used her handgun to smash the driver’s window and attempted to reach in and stop Haugen striking Haugen with her gun in the process. Haugen was able to start the car. “As the Jeep started or shortly after it began to move, Brosseau jumped back and to the left. She fired one shot through the rear driver’s side window at a forward angle, hitting Haugen in the back. She later explained that she shot Haugen because she was ‘fearful for the other officers on foot who she believed were in the immediate area and for the occupied vehicles [Nocera and her child as well as Tamburello and Atwood] in Haugen’s path and for any other citizens who might be in the area.’” Haugen continued to flee but stopped after realizing he had been shot. Haugen pled to a felony eluding charge which included the element of “a wanton or willful disregard for the lives…of others.” Haugen filed a lawsuit based upon the shooting.

In analyzing Brosseau’s qualified immunity claim, the United States Court of Appeal for the 9th Circuit concluded on the first question of qualified immunity [Did the officers conduct violate a federally protected right?] that Officer Brosseau’s use of deadly force violated a federally protected right. In its review, the United States Supreme Court asserted “We express no view as to the correctness of the Court of Appeal’s decision on the constitutional question itself. We believe that, however that question is decided, the Court of Appeals was wrong on the issue of qualified immunity.” [The second question of the analysis-Was the right so clearly established that a reasonable officer know that the conduct violated a federally protected right.”

The Court in reviewing lower court cases on this issue pointed out that some cases had found no violation of the 4th Amendment where fleeing motorists who posed a threat had been shot as well as cases where summary judgment and qualified immunity had been denied where officers shot the fleeing motorists. The Court concluded that these cases demonstrate that the use of deadly force against a fleeing motorist requires a fact-driven analysis and that the law in this area was not clearly established thus Officer Brosseau should have been granted qualified immunity.

Police Have No Liability for Failing to Enforce a Restraining Order

A question that is often raised in law enforcement is whether there is any duty to protect citizens from the harm they suffer at the hands of a third party. For example is a witness to a crime entitled to some protection by law enforcement so that no retaliation occurs; and, if the police fail to protect the witness and the witness is hurt or killed, can the witness sue the police under the federal constitution for failing to protect him or her? This question was answered by the United States Supreme Court in Deshaney v.Winnebago County which involved the abuse of a little boy at the hands of his father.

Joshua Deshaney was beaten by his father on several occasions. Although the Department of Social Services was involved in Joshua’s case, they returned custody of Joshua to his dad and failed to take any steps to properly protect Joshua. Joshua suffered further beatings, the final one leaving him with irreversible brain damage. In refusing to find a duty to protect under the substantive due process clause, the Court held that the Constitutional provision was enacted to restrict the power of government and not to create affirmative duties upon government entities to protect citizens from third party harm. The Court did indicate that when someone is in government custody and cannot protect themselves, the government would have a duty to protect that individual as in the case of a prisoner. This has been the state of the law for many years and has only been distinguished in cases where the person suing law enforcement could show that law enforcement actors did something affirmatively that created or enhanced the danger to an individual.

A tragic case out of Castle Rock, Colorado sought a new theory of liability for law enforcement in cases where law enforcement officers and their agencies failed to enforce protection orders and harm resulted. The theory of liability in Castle Rock was not based on substantive due process (i.e. right to life and liberty), but was based on procedural due process. Under procedural due process it was argued that a restraining order created a property interest in the protected party to enforcement of the order and this property interest could not be deprived without due process of law.

The facts in Castle Rock were tragic, Jessica Gonzalez, the mother of three daughters obtained a restraining order against her husband which restrained him from “molesting or disturbing the peace” of Jessica or her children. “On June 4, 1999, the state trial court modified the terms of the restraining order and made it permanent. The modified order gave respondent’s husband the right to spend time with his three daughters (ages 10, 9, and 7) on alternate weekends, for two weeks during the summer, and, ‘upon reasonable notice,’ for a mid-week dinner visit ‘arranged by the parties’; the modified order also allowed him to visit the home to collect the children for such ‘parenting time.’"

On June 22, 1999 at about 5:30 p.m. Mrs. Gonzalez noticed that her daughters were no longer in the yard where they had been playing. No advance arrangements had been made with her husband but she assumed that her husband had taken the children. At 7:30 p.m. Mrs. Gonzalez called the Castle Rock Police Department and sought their assistance in finding her daughters and enforcing the restraining order. According to the Supreme Court, it is unclear whether Mrs. Gonzalez showed officers the temporary restraining order or the permanent order which did allow the father some rights to spend time with his daughters. Mrs. Gonzalez reported that the officers told her there was nothing they could do and to call the police back at ten o’clock if the girls were not returned.

After receiving a call at 8:30 p.m. from her husband who reported that he had the girls at an amusement park in Denver, Mrs. Gonzalez again called the Castle Rock Police Department, asking, among other things that an all points bulletin be put out for her husband’s vehicle and asking that a check be made of the amusement park. She was again told to wait until ten o’clock to see if the girls were returned.

At ten minutes past ten, Mrs. Gonzalez called the police again and was now told to wait until midnight. At midnight, she drove to her husband’s apartment. Finding no one there she called the police and was told to stand by. After waiting for forty minutes, Mrs. Gonzalez drove to the police station and filed a report. Following the report, no steps were taken by the police to locate Mr. Gonzalez or the daughters.

At three-twenty in the morning, Mr. Gonzalez showed-up at the Castle Rock Police Department’s headquarters and began shooting into the building with a rifle. Officers returned fire and killed Gonzalez. Upon searching his truck they found that Mr. Gonzalez had killed his three young daughters. Mrs. Gonzalez filed a lawsuit alleging that the inaction by the police in enforcing her restraining amounted to a violation of her procedural due process rights under the Fourteenth Amendment and this violation led to the death of her daughters. The United States Court of Appeal for the 10th Circuit agreed with Mrs. Gonzalez theory of liability which set off this appeal to the United States Supreme Court.

In overturning the 10th Circuit and finding that the police were not liable for the death of the three young girls, the Supreme Court examined several factors:

In a review of the Colorado statute on protection orders the Court asserted: “It is hard to imagine that a Colorado peace officer would not have some discretion to determine that — despite probable cause to believe a restraining order has been violated — the circumstances of the violation or the competing duties of that officer or his agency counsel decisively against enforcement in a particular instance. The practical necessity for discretion is particularly apparent in a case such as this one, where the suspected violator is not actually present and his whereabouts are unknown.” Thus, the Court, after recognizing the mandatory language of the statute, there was still some discretion on the part of officers, particularly when the subject of the order is not at the scene since the officer could then choose, in accordance with the statute to seek an arrest warrant. The Court noted that an arrest warrant was not a property interest but only an interest in some legal process.

The Court stated that even if Mrs. Gonzalez could prove that officers had no discretion, she still would not be able to prove that she had any right to enforcement under the statute. The Court recognized that the government interest in enforcement may not have been to protect individual persons like Mrs. Gonzalez or her children, but may have been more of general desire to protect the public in these cases. Additionally, the Court noted that a review of the statute revealed that the legislature had expressly given protected persons certain rights, like the right to institute contempt proceedings against the subject of the order; the statute did not say anything about a right of a person to demand enforcement and arrest by police. As such, the Court concluded that Mrs. Gonzalez failed to establish that she was “entitled” to this protection by the police.

The Court concluded that even if Mrs. Gonzalez could show that arrest was mandatory and without discretion (even if the offender is no longer at the scene; and, even if she could show that she was entitled to police enforcement of the order, the order did not create a protected property interest under the Constitution thus, law enforcement could not be held liable for the deaths of the three little girls at the hands of their father.

In a sweeping conclusion the Court reiterated its position on the lack of constitutional duty of government actors to protect citizens from third party harm and the ability of states to enact legislation that recognizes such protection as a matter of state law if the state so chooses. The Court held: “In light of today’s decision and that in DeShaney, the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause, neither in its procedural nor in its ‘substantive’ manifestations. This result reflects our continuing reluctance to treat the Fourteenth Amendment as ‘a font of tort law,’…. but it does not mean States are powerless to provide victims with personally enforceable remedies. Although the framers of the Fourteenth Amendment and the Civil Rights Act of 1871, 17 Stat. 13 (the original source of § 1983), did not create a system by which police departments are generally held financially accountable for crimes that better policing might have prevented, the people of Colorado are free to craft such a system under state law.

Deshaney v. Winnebago County, 489 U.S. 189 (1989).

Castle Rock v. Gonzalez, 2005 U.S. LEXIS 5214 (2005).

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