Posted June 27, 2006

 People v. Wells (2006) WL 1726460

 California Supreme Court Rules That Vehicle Stop May be Based on Anonymous Call Reporting Suspected DUI

           The US Supreme Court previously ruled that an anonymous tip cannot generally supply the reasonable suspicion required to justify an investigative detention. Florida v. J.L.  (2000) 529 US 266.

          The California Supreme Court has ruled that the J.L. decision does not preclude a traffic stop of a reported DUI where an unidentified citizen who is apparently another motorist, telephones and gives a detailed description of a particular vehicle at a particular location that is "weaving all over the roadway." An officer's observation of such a vehicle at the reported place and time allows a stop, even though the officer sees no erratic driving.

          During the stop of Susan Wells by the CHP, she was found to be under the influence of marijuana, cocaine and heroin, and more heroin and paraphernalia were found in her van. Her appeal to the state Supreme Court resulted in a 4-3 vote to deny suppression of the evidence on the basis of J.L., though the court did caution dispatchers and officers that they should try to obtain more information from callers who report crimes, including ID and basis of their knowledge.

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 Anderson v. Warner (9^th Cir. 2006) WL 1728073 

Ninth Circuit Rules That Off-duty Officers Act "Under Color Of State Law" When They Identify Themselves as Officers and Act Officially

           For a law enforcement officer to be held civilly liable under the federal civil rights statute (42 USC § 1983), it must be shown that s/he deprived the plaintiff of federal rights under color of authority. This will usually limit lawsuits to cases of on-duty incidents. But not always.

          An off-duty Mendocino custodial officer was involved in a traffic collision and a physical confrontation with the other driver. The other driver alleged that the officer identified himself as a "cop" and ordered passers-by to "disperse" and move along. The Ninth Circuit found these allegations sufficient to bring the officer's alleged conduct within the requirement of the "color of law."

          According to the court, "The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights. Misuse of power, possessed by virtue of state law and possible only because the wrongdoer is clothed with the authority of state law, is action taken under the color of state law. We hold that [the officer] was acting under color of state law when he invoked his law enforcement status to keep bystanders from interfering with his assault on [the plaintiff]."

          Civil legal advisors should be consulted to review departmental policies and practices on off-duty officers becoming involved in incidents and displaying a badge or ID card, acting in an official capacity, etc.

Posted June 19, 2006 

Samson v. California (2006) WL 1666974

 US Supreme Court Rules That Parole Searches Do Not Require Reasonable Suspicion

           A San Bruno officer recognized pedestrian Donald Samson as a parolee. The officer stopped and searched Samson, finding methamphetamine. Samson's suppression motion was denied, and he appealed to the US Supreme Court, arguing that the officer should not have stopped and searched him without some level of suspicion.

          The Supreme Court rejected Samson's argument and affirmed his conviction. Since all parolees are required by law (PC § 3067) to submit to search and seizure by any peace officer, Samson had no legitimate expectation of privacy, and his detention and search did not violate the Fourth Amendment.

          This decision is consistent with existing California case law as to both parolees, People v. Reyes (1998) 19 Cal.4^th 743, and probationers, People v. Bravo (1987) 43 Cal.3d 600, both holding that no suspicion is needed for parole and probation searches, but that such searches must not be arbitrary, capricious or harassing. Samson abrogates any conflicting decisions of the Ninth Circuit.

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Davis v. Washington (2006) WL 1667285

 US Supreme Court Rules That Portions of 911 Tape Are Admissible if Victim or Witness is Unavailable to Testify at Trial

           In Crawford v. Washington (2004) 541 US 36, the Supreme Court disallowed "testimonial hearsay" from an unavailable witness where the statements made to the investigating officer were obtained through "structured police questioning." Such evidence, said the court, would violate the Sixth Amendment right of the defendant to confront and cross-examine the declarant.

          As applied to 911 dispatch tapes, the court has now ruled that the questions and answers dealing with reporting the situation and providing the dispatcher with information needed to assess the need for emergency response were admissible under Crawford, although later portions going over the details of the completed crime probably were not.

          The court also said that initial statements made at the scene to first responders would follow a similar approach: information needed to determine ID of the parties, presence or use of weapons, and need for medical care could be admitted, but statements made in answer to questions about the completed crime, designed to assist in a prosecution, could not.

          The court suggested it could make a difference whether first responders asked "What's happening?" (present tense) vs. "What happened?" (past tense). In view of this fine point, first responders—especially in DV, child abuse, elder abuse and gang cases (where witnesses are often reluctant to testify or lose their memories)—may wish to keep their initial question to the victim/witness in the present tense: "What's going on?"

Posted June 15, 2006 

Hudson v. Michigan (2006) 547 US ___ , WL 1640577 

US Supreme Court Rules That Evidence May Not Be Excluded Based on Knock-Notice Violations 

          Detroit Police serving a valid search warrant at a drug suspect's house failed to wait long enough after knocking, before entering, to comply with knock-notice. Resident Booker Hudson moved to suppress the evidence officers found inside his home. The state court denied his motion, and he appealed to the US Supreme Court.

          By 5-4 vote, the court ruled that the exclusionary rule does not apply to knock-notice errors. Considering the purposes of the knock-notice rule and the fact that the evidence was discovered by warranted search, the court held that criminal defendants may not use the exclusionary rule to suppress evidence on the ground of knock-notice violations, but must pursue any civil remedy that they have.

          This decision negates California and Ninth Circuit rulings to the contrary (see Duke v. Superior Court (1969) 1 Cal.3d 314, 325, and US v. Granville (9^th Cir. 2000) 222 F3d 1214, 1220). Because PC 844 (knock-notice when serving arrest warrants), PC 1531 (knock-notice when serving search warrants) and the decisional law applying knock-notice to probation and parole entries all involve the same principle, these knock-notice issues should no longer be litigated in criminal prosecution suppression motions.

          To avoid civil liability, officers should continue to comply with the knock-notice rules where compliance is not excused by exigent circumstances, safety concerns, or risks of escape or destruction of the evidence.

Posted June 2, 2006

People v. Thompson (2006) WL 1492431, DJDAR 6776

 California Supreme Court Rules that Entry to Arrest DUI Suspect was Lawful to Prevent the Imminent Destruction of Evidence

           A citizen-motorist reported a DUI suspect she was following. Police traced the vehicle to a home address, where they found it parked in front, hood still warm. Thompson was seen inside the home, staggering around, and trying to leave out the back. An officer walked inside and saw symptoms of intoxication. He arrested Thompson, who moved to suppress the evidence of his BAC as the fruit of unlawful entry.

          The California Supreme Court denied suppression. Cautioning that it may not always be permissible for police to enter to arrest a DUI suspect, the court said it was reasonable in this case because the crime had just occurred, the suspect's actions and demeanor justified immediate arrest, and the officer entered only a few steps to make the arrest in the face of exigent circumstances.

          The exigency, said the court, was the need to prevent the imminent destruction of evidence. If officers delayed arresting while seeking a warrant, the BAC could go down due to absorption and metabolism, or go up due to the suspect continuing to drink. The evidence of Thompson's level of intoxication would be lost in either case, making immediate warrantless entry necessary and, therefore, reasonable under the Fourth Amendment.