Posted March 23, 2006

 Randolph v. Georgia (2006) 547 US ___ , DJDAR 3375, WL 707380

 US Supreme Court Rules that a Co-occupant of Premises Who is Present and Who Expressly Refuses Consent to Enter and Search a Residence Can Negate the Consent of Another Occupant.

           Mrs. Randolph called police to her home and told them her husband had evidence of drug usage upstairs. Mr. Randolph denied this, and refused consent to search. Mrs. Randolph gave consent and showed the evidence to police.

           The Supreme Court has ruled that an objecting co-occupant who is present when another consents can cancel the consent, as to entry or search producing evidence against him.

           This ruling abrogates the former California and Ninth Circuit rules to the contrary. People v. Haskett (1982) 30 Cal.3d 841,857; US v. Morning (9^th Cir. 1995) 64 F.3d 531, 536.

           Adhering to its decision in US v. Matlock (1974) 415 US 164, the court affirmed in Randolph that if the non-consenting occupant is not present at the doorway when consent is sought (and absent evidence his absence was contrived by police to avoid a Randolph situation), one occupant's consent will still be valid.

           The court also allowed that exigent entry, such as in domestic violence cases or to prevent the imminent destruction of evidence, would still be permissible, and plain-view seizures would still be reasonable.

           Because Randolph invalidates the former California and Ninth Circuit rulings permitting one tenant to consent to entry over another's objection, it has both exclusionary and civil liability ramifications. All law enforcement officers should be aware of this change.

 US v. Grubbs (2006) 547 US ___ , DJDAR 3295, WL 693453

US Supreme Court Approves of "Anticipatory Search Warrants" and Holds that the Warrant Need Not be Shown to Occupants Before or During the Search.

           In the first "anticipatory search warrant" case to be reviewed by the Supreme Court, the court upheld a warrant that was conditioned on the suspect receiving a parcel containing a pornographic videotape. This condition was not mentioned on the face of the warrant. The warrant was not shown to the suspect at the outset of the search. On both of these grounds, the Ninth Circuit ruled that the resulting search and seizure were invalid.

           The Supreme Court reversed the Ninth Circuit on both grounds. First approving anticipatory warrants where the affidavit establishes PC to believe evidence will be found once a triggering event has occurred, the court then ruled that it is not necessary to state the triggering event on the face of the warrant. The court also ruled that the Fourth Amendment does not require officers to exhibit the warrant to the occupants of the place being searched.

Posted March 7, 2006

 CHP v. Superior Court of Alameda County (2006) 135 Cal.App.4^th 488

 California Court of Appeal Rules That DUI Driver Who Causes Emergency Response "Incident" is Liable for Certain Costs

           Government Code sections 53150 and 53156 provide that a DUI driver is liable for the emergency response to an "incident" caused by the DUI. Under this provision, the CHP billed a DUI driver who caused a traffic collision, seeking $360 for salaries of officers who went to the scene and arrested the DUI. (Liability limit under these statutes is $12,000.)

           The appellate court held that an "incident" includes an accident or other event, such as an abandoned vehicle impeding traffic. The court allowed as recoverable expenses the hourly salaries of officers who responded, directed traffic, towed the vehicle, gave FSTs, arrested the deuce, gave chemical tests, completed booking, and wrote reports.

           The court said that time spent testifying in court on a criminal prosecution would not be recoverable. Nor could police be reimbursed for the costs of normal enforcement stops, where no "incident" occurred, requiring an emergency response.

           Agencies may wish to evaluate this decision and consult civil advisers re procedures for billing and recovering costs in DUI accident and other qualifying cases.

Posted March 8, 2006

 Kennedy v. City of Ridgefield (9^th Cir. 2006) DJDAR 2754 and 2757.

 Ninth Circuit Rules That Officers May be Civilly Liable For Informing Violent Suspect of Victim's Complaint

           Mrs. Kennedy made a report to Ridgefield Police that a 13-year-old neighbor had molested her daughter. She told the responding officer the suspect was violent, and asked to be notified before he was told of her complaint against him, so she could take steps to protect her family. The officer agreed to do so.

           Eighteen days later, the officer advised the suspect's mother of the complaint. Fifteen minutes after doing so, he advised Kennedy that the suspect's family was now aware of the report, and the officer promised to patrol the neighborhood. Later that night, the suspect broke into the Kennedy home, where he shot and wounded Mrs. Kennedy and killed her husband. Mrs. Kennedy filed a federal civil rights lawsuit, and the officer invoked qualified immunity, contending that he had not violated any constitutional rights.

           The Ninth Circuit disallowed the officer's immunity claim and ruled that he could be found liable for creating an increased danger to the Kennedy family by not telling her in advance that he was going to contact the suspect's family.

           In a dissenting opinion, eight of the circuit judges said: "This opinion opens the floodgates to § 1983 lawsuits by citizens following any failure on the part of the police to adequately protect them from harm after they report a crime."

           Until we see whether the Supreme Court grants review of this case, agencies may wish to consult civil liability advisers for guidelines on any policy or procedure changes that may be prudent in view of this decision.