November 2009 Legal
Bulletin
Civil and Criminal Liability
Violations of State Law on who can apply for a Search Warrant Won't
Lead to Liability, but Failure to Execute it in a Proper Manner Will
Bowling v. Rector, ___ F.3d ___ (10th Cir. No. 07-6284, filed 10/26/09). In a 42 U.S.C. section 1983 action alleging an unlawful search, denial of summary judgment for defendant based on qualified immunity is affirmed in part where defendant's alleged conduct in exceeding the scope of the search warrant violated plaintiff's clearly established right under the Fourth Amendment. However, the order is reversed in part where: 1) defendant's alleged violation of Oklahoma law was not, without more, significantly relevant to the Fourth Amendment analysis; and 2) a search warrant was constitutionally valid. A bank suspected that Bowling was selling cattle in which the bank had a security interest and not accounting for the proceeds. Bowling was allegedly doing so in his wife and son's name. A special ranger with the Oklahoma State Bureau of Investigations with authority to investigate livestock larcenies swore out an affidavit and obtained a warrant for Bowling's property. The special ranger and others executed the warrant, and seized bank records and other items named in the warrant, as well as some marijuana that was not named in the warrant. Bowling sued Rector alleging he exceeded his statutory authority. The Circuit held that even if Rector violated state law by exceeding his statutory authority, the warrant affidavit established probable cause and Rector should have been granted immunity on that claim. It affirmed on the reasonableness in execution of the warrant and remanded for further proceedings.
http://ca10.washburnlaw.edu/cases/2009/10/07-6284.pdf
Handcuffing ok, but Putting Knee into the Back of an Unarmed, Obviously
Injured Suspect Was Excessive Force
Fisher v. City of Las Cruces, ___ F.3d ___ (10th Cir. No. 07-2294, filed 10/19/09). Plaintiff successfully alleged more than de minimis injury sufficient to support an excessive force by handcuffing claim. Las Cruces police responded to a shots fired, possible suicide call. Robert Fisher took at least two doses of Xanax, an anti-anxiety prescription medication, and the better part of a pint of vodka. He passed out in his backyard. When he awoke, he began to hallucinate that a large animal was threatening him. Fisher ran inside, retrieved a 9 millimeter handgun, and returned to the backyard to confront the illusion. Staggering and delirious, Fisher instead accidentally shot himself in the stomach. As he fell to his knees, his gun discharged again and a second bullet struck him in the left bicep. Fisher’s wife, Mary Fisher, was inside the house and heard Fisher’s cries for help. She called 911. While talking to the operator, Mary Fisher walked outside, apprehended the gun, and placed it in the kitchen. Responding officers knew that Mary had retrieved the gun. They entered the backyard with guns drawn, and patted down Robert, finding no other weapons. His wounds were clearly visible. One officer began giving Robert medical assistance, while the other went inside and retrieved the weapon. Upon returning to the yard, he ordered Robert to lie on his stomach and put his hands behind his back. Robert protested, but the officer placed his knee on Robert's back and forcefully applied the handcuffs. Robert testified that doing so caused him "excruciating pain." The district court granted the officers summary judgment based on qualified immunity. The Circuit reversed, finding the force excessive, the law clearly established, and that Robert's petition could be fairly read to establish more than a de minimis injury.
http://ca10.washburnlaw.edu/cases/2009/10/07-2294.pdf
Public Duty Doctrine Applied to Outpatient Treatment Program
Adams v. Board of Sedgwick County Comm'rs., ___ Kan. ___, 214 P.3d 1173 (No. 99,195, filed 09/04/09). Defendant ran an outpatient mental health center (ComCare) tasked with treatment and supervision of Adam Cummins after his discharge from involuntary commitment at Osawatomie. Adam frequently became non-compliant with his medication and would become violent. The mental health center allowed an outpatient treatment order to expire despite Adam's noncompliance with his medications. In September 1999, ComCare closed Adam's case due to refusal of services and noncompliance. In April 2000, Adam's condition deteriorated and he began beating his mother with a hammer, causing his daughter to shoot and kill him. Mother and daughter sued the county for negligence. The Supreme Court held the county owed no duty to Mother and Daughter because no special relationship existed under Restatement, Torts § 315 or 319, finding outpatient treatment does not give the kind of control required to create a special duty. Therefore, it did not consider whether tort claims exceptions applied. It so held despite ComCare's failure to report noncompliance with the court order as required by K.S.A. 59-2967(e), finding the statute creates a duty to the public but not to plaintiffs.
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090904/99195.htm
Evidence
Failure to Disclose Potentially Exculpatory Information about a
Confidential Informant and Improper Limitation on Cross-Examination of that
Informant Leads to Reversal
United States v. Robinson, ___ F.3d ___ (10th Cir. No. 08-3120, filed 10/20/09). Robinson was convicted and sentenced to 33 months in prison for being a felon in possession of a firearm after selling a gun to a confidential informant (“CI”). Six days before Robinson’s trial, the government’s star witness—the CI who purchased the gun from Robinson—was involuntarily committed to Osawatomie. The district court reviewed the CI’s medical files in camera (an in-chamber examination for the judge's eyes only) but refused defense counsel access to them. It also precluded defense counsel from asking the CI any questions about his mental health history or his use of prescription medications. The Circuit ruled that refusal to provide Robinson access to the CI’s medical records contravened due process and that limitations on cross-examination of the CI violated the Sixth Amendment. The CI testified he only had "a little bit" of a drug problem and was not "regularly" violating his agreement with the ATF by using drugs. He also claimed his memory lapses were due solely to the passage of time. The medical records showed that the CI had been a heavy drug user since 2000 and had recently been abusing alcohol, cannibis, opioids, benzodiazepine, Valium, Klonopin, Darvocet, and Hydrocodone. The medical records also contain admissions by the CI that he had smoked a half-pound of marijuana in a single day shortly before trial and that he had been smoking up to a pound of marijuana per week. The jury would also have heard that the CI had a "long history of mental illness" starting in 2000, which included auditory hallucinations, seeing “things out through the window that are not really there,” and “hearing voices telling him to do thing[s].” The Circuit concluded that if the jury had known these things, it might have rejected the CI's testimony and resulted in Robinson's acquittal. Notably, although the CI carried a digital recorder during the controlled buy of the weapon, the recording was "low-quality, interspersed with static and revealed few details of the events that took place inside Robinson’s home." Even the government admitted it had "limited evidentiary value."
http://ca10.washburnlaw.edu/cases/2009/10/08-3120.pdf
Admission of Lab Tests at Trial is Testimonial
State v. Laturner, ___ Kan. ___, ___ P.3d ___ (No. 98,086, filed 10/09/09, affirming in part and reversing in part 38 Kan. App. 2d 193, 197, 163 P.3d 367 (2007). Lab test result showing that a substance is cocaine is testimonial under Crawford. The third and fourth sentences of K.S.A. 22-3437(3) are unconstitutional.
http://www.kscourts.org/Cases-and-Opinions/Opinions/SupCt/2009/20091009/96086.pdf
Editor's Note: As covered in the September 2009 Legal Bulletin, admission of lab tests at a preliminary hearing without calling the chemist is permissible. State v. Leshay, ___ Kan. ___, ___ P.3d ___ (No. 99,725, filed 08/28/09).
Search and Seizure
Housing Authority Employees Were Not Acting as Agents for the Police
State v. Brittingham, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,888, filed 10/30/09). Two public housing authority employees entered defendant's apartment to check for damage from a drainage problem. One of the employees noticed two unresponsive people inside and called 911. The police responded, and eventually the persons awoke and declined medical treatment. The officer noticed drugs and paraphernalia in plain view, and received incriminating, volunteered statements from the defendant. The Court of Appeals found no error in denying a motion to suppress, holding the public housing employees were not acting as agents of the police, and police entry into the residence was a valid emergency search.
http://www.kscourts.org/Cases-and-Opinions/opinions/CtApp/2009/20091030/100888.pdf
Lying About Who Rented a Storage Locker Results in Forfeiting Any
Expectation of Privacy
United States v. Johnson, ___ F.3d ___ (10th Cir. No. 08-4031, filed 10/27/09). Defendant's firearm possession conviction is affirmed where defendant forfeited any Fourth Amendment privacy rights he might have had in a storage unit by directing his girlfriend to enter into the rental agreement using another person's name and stolen identification. Noting the rental contract was procured by identity fraud, the court stated, "[w]e will not be a party to this fraud by legitimizing Johnson's interest in the storage unit. Therefore, whatever subjective privacy expectations Johnson has in the storage unit were not expectations that "'society is prepared to recognize . . . as objectively reasonable.'"
http://ca10.washburnlaw.edu/cases/2009/10/08-4031.pdf
"Trooper Two-Step" (also known as the "Colombo
Pivot") Did Not Result in a Consent Search, but Detention for a Dog Sniff
Was Supported by Reasonable Suspicion
United States v. White, ___ F.3d ___ (10th Cir. No. 07-3153, filed 10/22/09). Defendants' drug conspiracy convictions are affirmed where the district court correctly refused to suppress illicit drugs discovered in their car during a traffic stop because: 1) the district court's finding that a state trooper had reasonable suspicion to pull defendant over for unsafely passing another vehicle was not clearly erroneous; 2) defendant waived his right to assert certain arguments on appeal in his plea agreement; 3) the officer had reasonable suspicion of defendants' drug activity based on a) defendants' unusual nervousness; b) their improbable travel plans; c) one defendant's criminal history; and d) Las Vegas' reputation as a narcotics source city and Indianapolis's reputation as a drug distribution hub. On October 2 Trooper Dean stopped defendant's car when he saw it pass another Eastbound vehicle and return to the right-hand lane without leaving enough space between the vehicles, an alleged violation of K.S.A. 8-1516(a). White had a valid Indiana drivers license and said he was headed home from Las Vegas after a four-day stay. The rental agreement indicated the car was rented on October 1 and was due back on October 3, which Trooper Dean said was "bizarre." Dispatch reported that White had two prior incidents of drug-related charges. After doing a trooper "two-step," Dean did not get consent to search. Dean then told White to follow him to a KDOT office about eight miles to the East for a dog sniff. The dog alerted, and officers found three bundles of marijuana in the trunk and later found for kilos of cocaine under the hood.
http://ca10.washburnlaw.edu/cases/2009/10/07-3153.pdf
Court Orders Disclosure of Officer's Personal Cell Phone Records
State v. Ortiz, 215 P.3d 811 (N.M. App. 2009). (Summary by Ken Wallentine - Xiphos Newsletter October 2009 #1): Court Orders Surrender of Officer's Personal Cell Phone Records to Criminal Defense Attorney. Officers were looking for a car that might contain a person suspected of having just overdosed on heroin at a local store. There was information that a person in the car was giving CPR to the overdose victim. An officer saw Ortiz's car weaving and driving erratically. The officer stopped Ortiz and ultimately arrested him for DUI. Ortiz was not involved in the overdose situation. Ortiz claimed that there was no reasonable suspicion for the stop and that the officer's explanation about the overdose was pretextual. Ortiz sought an order from the trial court that the police officer be required to surrender his personal cell phone records for the time surrounding the stop and the arrest. The trial court, sustained by the New Mexico Court of Appeals, made a number of findings that would surprise any scholar familiar with electronic communications records. The court found that the officer's personal phone records for the time that he was on duty and in a marked patrol car and engaged in official duties were records under the control of the state. The court also found that neither the United States Constitution nor the New Mexico Constitution gave the officer a right of privacy in his cell phone records (though this finding did not extend to the content of communications). The court also found that the federal Electronic Communications Privacy Act did not apply to this situation. The federal law requires that no cell phone records can be disclosed to law enforcement unless there are reasonable grounds to believe that the records are relevant and material to a criminal investigation. Ortiz's defense attorney didn't use the term "fishing expedition" in the demand for the cell phone records, though he offered no substantive basis to show that the threshold for the federal statute had been met. The officer asserted his privacy rights under the federal and state constitutions and declined to provide the cell phone records. The prosecution supported the officer in his exercise of constitutional rights and maintained that the Constitution and plainly written federal statute barred the State from coercing the officer to give up his personal records. In response, the trial court dismissed the DUI and other charges against Ortiz. The court of appeals sustained the trial court. This case serves as a warning, at the very least in New Mexico, of the courts' willingness to attempt to exercise control over an officer's communication records, with no substantive basis for doing so and in a fairly plain violation of the Electronic Communications Privacy Act, when the officer is on duty, in a marked vehicle, and on official business.
Officer Entitled to Seize Cigarette Pack, but not Entitled to look in
it.
State v. Johnson, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,728, filed 10/09/09). Wichita officers responded to an alleged burglary. Defendant Vicky Johnson was in an apartment that her boyfriend had been asked to vacate. Officers entered with weapons drawn and encountered two women boxing up stuff. Defendant told officers she was there to help her boyfriend clear out his stuff. While speaking with an officer in the kitchen, Defendant asked for a cigarette and reached for her purse. The officer denied her request, but she grabbed a cigarette package out of the purse. The officer took it away from her, looked inside and saw a crack pipe. The officer then searched the purse, finding a prescription bottle containing cocaine. The Court of Appeals held the evidence should have been suppressed. It found the facts supported a determination the officer had reasonable suspicion her personal safety was at risk, although it was a close call. However, it held that looking into the cigarette package exceeded the scope of a valid Terry search, because once the officer seized it, the Defendant no longer had access to it. Judge Hill dissented, saying the Court's analogy of the cigarette package to the car in Gant was too tenuous.
http://www.kscourts.org/Cases-and-Opinions/opinions/CtApp/2009/20091009/100728.pdf
Illegal Entry by Officer Does Not Mean that Resident is Entitled to
Threaten Officer with a Weapon
State v. Peterman, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101,852 filed 09/25/09). The district court determined that a domestic standby to keep the peace was insufficient to establish the emergency exception to the warrant requirement. A female called for a standby while she removed items from her significant other's residence. The deputy didn't get explicit consent from anyone, but followed her in to the house, and Peterman came around the corner carrying an assault-type rifle. Peterman pointed the rifle at the deputy and stated, "'Get the fuck out of my house.'" The deputy put his hands in the air and told Peterman to stop. Peterman walked closer to the deputy, lifting the rifle up at an angle and repeated, "'[G]et the fuck out of my house.'" The deputy left, fearing he might be shot. At some point, officers removed a .308 caliber rifle and a magazine from Peterman's home. In a prosecution for aggravated assault on a law enforcement officer, the district court suppressed all the evidence. The Court of Appeals reversed, holding that the trier of fact should be allowed to determine whether Peterman's actions were reasonable once he knew a deputy was in his home, even though the deputy's initial entry may have been illegal. It held that evidence of a separate, independent crime initiated against police officers in their presence after an illegal entry or arrest will not be suppressed under the Fourth Amendment. See United States v. Waupekenay, 973 F.2d 1533, 1537-38 (10th Cir. 1992).
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2009/20090925/101852.htm
Supreme Court Reverses Well-Reasoned Court of Appeals Decision on
Stopping a Car for Failure to Maintain a Single Lane.
State v, Marx, ___ Kan. ____, ___ P.3d ___ (Nos. 98,059 & 98,060, filed 09/18/09), reversing 38 Kan.App.2d 598, 171 P.3d 276 (2007). A motor home passed an officer sitting beside the highway. A hubcap came off the motor home. The officer retrieved the hubcap, and then caught up with the motor home alleging he intending to stop it to return the hubcap. The officer saw the motor home cross the fog line, then overcorrect and cross the centerline. The officer stopped the motor home, and then smelled marijuana. After turning the stop back into a voluntary encounter, the officer asked for and was denied consent. He then stated he was going to run his dog around the outside. The driver got back into the motor home despite instructions to stop. She later exited and was arrested. A search of the motor home's interior and septic tank yielded drugs and paraphernalia. The occupants moved to suppress, arguing there was no reasonable suspicion for a stop. The Court of Appeals disagreed. It held that this was not a valid safety stop, but was a stop based on reasonable suspicion of failure to maintain a single lane in violation of K.S.A. 8-1522(a), declining to follow State v. Ross, 37 Kan.App. 2d 126, 149 P.3d 876, rev. denied 284 Kan. 950 (2007), and instead chose to follow United States v. Jones, 501 F.Supp. 2d 1284 (D. Kan. 2007). The Supreme Court affirmed the Court of Appeals ruling that the stop was not a valid safety stop, but reversed the Court of Appeals holding the stop was based on reasonable suspicion. In doing so, it interpreted K.S.A. 8-1522(a) as setting out two rules of the road: (1) a vehicle must be driven as nearly as practicable entirely in a single lane (the single lane rule) and (2) a vehicle cannot be moved from a lane of traffic unless the driver first determines the move can be made with safety (the lane change rule). Noting the single lane rule is "temporarily suspended" when it is impracticable to stay within lane markers (such as during high winds or a road obstruction). Interpreting the term "practicable" in the single lane rule, it declared the statute requires only compliance close to that which is feasible, and an incidental and minimal lane breach is not enough to establish reasonable suspicion of violating the single lane rule. Justice Davis and Justice McFarland concurred, but wrote separately to state that the majority's analysis of K.S.A. 8-1522(a) "results in an unreasonable and unworkable standard for an officer to apply when determining whether there is reasonable suspicion to initiate a traffic stop for failing to maintain a single lane."
http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2009/20090918/98059.htm
Application of Handcuffs is Reasonable Method of Detention after Drugs
are Found in a Car
United States v. Albert, ___ F.3d ___ (10th Cir. No. 07-4193, filed 09/01/09). Defendant was a passenger in a vehicle stopped for a traffic violation, and wasn't wearing a seatbelt. The officer requested his ID and ran him for warrants, in addition to the driver. The driver admitted she had no insurance, and was arrested on warrants. Albert did not have warrants, but had a suspended license. The officer searched the car incident to the driver's arrest and found methamphetamine. She had Albert placed in handcuffs, and another officer patted him down, finding a tourniquet in his front pocket. The arresting officer decided to impound the vehicle and found a shotgun and shells in the trunk. Albert admitted possession of the weapons. He was a convicted felon. He alleged the gun and shells should be suppressed because the arrest was illegal. The Circuit rejected his argument holding that he was only detained in handcuffs until the shotgun was found and Albert admitted possession. It held the use of handcuffs did not elevate the detention to an arrest and was reasonable after finding drugs in the car. The court held that seizure of the tourniquet was an impermissible frisk, but that did not transform the encounter into an arrest. Finally, it held that discovery of the shotgun and shells would be admissible either through the independent source doctrine or inevitable discovery doctrine (impound and tow would be valid).
http://ca10.washburnlaw.edu/cases/2009/09/07-4193.pdf
Canine Alert as Opposed to Canine Indication is Probable Cause to
Search a Car
United States v. Parada, ___ F.3d ___ (10th Cir. No. 07-3272, filed 08/25/09). Parada was the ringleader of an operation to transport PCP from California to Virginia. He hired Bradley as a driver, and Parada bought a cooler used to transport the PCP. An officer stopped the van outside Junction City for a traffic violation. He noticed the presence of multiple air fresheners, discrepancy in the rental agreement and Bradley's nervous demeanor. The officer ran his dog around the van. The dog alerted to the driver's door, but did not indicate. The officer found a small amount of marijuana in the side pocket of the front passenger's door. They later found about $500,000 worth of PCP in a cooler in the back. Parada alleged he was illegally detained after Bradley denied consent to search, but the court had previously held the stop was legal and continued detention was based on reasonable suspicion in a companion case, United States v. McNeill, 136 F.App'x 153 (10th Cir. 2005). Parada also allege search of the cooler was illegal, but the court held he lacked standing because he did not assert ownership or testify at the suppression hearing he had an expectation of privacy or a legitimate possessory interest in the vehicle (see United States v. Eckhart, 569 F.3d 1263 (10th Cir. 2009). Finally, the court held that while there is a difference between a dog alert and an indication, See United States v. Forbes, 528 F.3d 1273 (10th Cir. 2008), an alert is sufficient to establish probable cause.