SCM NEWS & OPINIONS

Government Entities, Case Law Update – Law Enforcement, April 2021

All summaries are written by Heather White and are for informational purposes only.  A special thank you to Rachel Phillips for her help in preparing a number of these summaries.

 

Clark v. City of Williamsburg

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In this case, the Tenth Circuit Court of Appeals ruled under the narrow facts of the case that the Fourth Amendment did not bar a code compliance officer from approaching the back of the plaintiff’s house for a consensual encounter after knocking on the front door with no response.  The court noted there was no path to the front porch of the home from the driveway, the steps to the front porch were partially blocked with vegetation, items on the front porch partially blocked the front door, and the plaintiff admitted he had “trained” at least some of his visitors to come to the back entrance.  These facts, “coupled with [the officer] hearing someone towards the back of the house, made his decision to walk that way in an attempt to contact [the plaintiff] entirely reasonable” because a reasonable officer could conclude the front door was not the primary entrance.

It is important to note that the court’s decision would likely have been different where none of those circumstances existed, as outlined by the dissent.

 

Craft v. White

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In this Fourth Amendment case, the Tenth Circuit Court of Appeals ruled an officer was entitled to qualified immunity in a wrongful arrest claim where the officer did not view an allegedly exculpatory recording of the incident before making an arrest where the officer did not have the recording in his possession and, even though he been told it existed, had not viewed or been offered access to it prior to obtaining a search warrant.  It is important to note that this situation was different than Baptiste v. J.C. Penney Co., 147 F.3d 1252 (10th Cir. 1998), where the Tenth Circuit stated:

Absent exceptional circumstances, . . . when a videotape of the conduct at issue is both known and readily accessible to an officer investigating an alleged crime, the officer must view the videotape . . . . While officers are not required to conduct full investigations before making an arrest, an officer may not ignore a videotape which records the alleged criminal acts.

The court further distinguished Baptiste, stating the officer “had no clearly established constitutional obligation to request the video before filing a criminal complaint.”

The Court finally ruled that the officer’s failure to identify the possible recording in his application for an arrest warrant did not render the warrant unconstitutional because the officer still had probable cause for the arrest had the contents of the recording been included.  The recording showed the victim taunting the plaintiff, and the plaintiff pushing the victim to the ground in response.  However, the provocation by the victim did not change the fact that the plaintiff pushed the victim to the ground, injuring her.

 

Edwards v. City of Muskogee

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A citizen flagged down an officer concerned about a man parked in a restaurant driveway for about an hour.  Based on the officer’s interaction with the suspect while in the car, and having recognized him from a prior encounter, the officer suspected the man was under the influence of PCP and decided to arrest him for driving under the influence.  The suspect complied with orders to exit his car, but the officer and another officer who arrived on scene had difficulty handcuffing him because the man would not keep his hands behind his back.  During a four-minute struggle to handcuff the plaintiff, officers delivered three closed-fist punches to the plaintiff’s rib area while he was on the ground, tased the suspect in two five-second taser cycles, and applied a bilateral neck restraint for approximately twenty seconds.

The suspect filed a federal civil rights action claiming the officers used excessive force in arresting him.  Affirming summary judgment in favor of the officers based on qualified immunity, the Tenth Circuit Court of Appeals ruled the officers’ use of force was reasonable under the circumstances.  The court explained, first, the suspect was suspected of driving under the influence of PCP, a felony involving potentially dangerous conduct.  Second, the suspect posed a threat of safety to the officers, not only refusing to put his hands behind his back but putting his hands in and out of his pockets during the initial interaction, physically struggling with officers, “had an imposing physical stature,” and appeared incoherent and impervious to pain.  “Significantly, it took multiple officers engaged in a prolonged struggle with him to place him in handcuffs.”  And third, the suspect resisted arrest.  Weighing the force used against the threat to the officers and the need to get the suspect into custody, the court ruled the officers acted reasonably under the circumstances.

 

Metzler v. City of Colorado Springs

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In this case, the Tenth Circuit Court of Appeals confirmed the long-standing rule that if an officer seeking an arrest warrant “possesses information that would cast substantial doubt on the existence of probable cause, that information should not be intentionally withheld from the judge asked to approve the warrant.”  It also reminds us that “Probable cause is not a precise quantum of evidence—it does not, for example, require the suspect’s guilt to be more likely true than false.  Instead, the relevant question is whether a substantial probability existed that the suspect committed the crime, requiring something more than a bare suspicion.” (quoting Stonecipher v. Valles, 759 F.3d 1134, 1141 (10th Cir. 2014) (internal quotation marks omitted).

 

Rivera v. Granillo

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In this case, the Tenth Circuit Court of Appeals confirmed a claim that handcuffs were unduly tight is measured from the time the suspect complains to the time the officer takes remedial action.  This is a good reminder that while people who are arrested often complain their handcuffs are too tight, it is important not to ignore the complaint but to check, make any necessary adjustments, and document the facts.  That documentation should include what the complaint was, when the officer checked, what the officer did to check the complaint, any adjustments were made, why none were made if not, and the timing of either.

 

State v. Malloy

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Police were informed that a man driving a pickup truck had hit a light pole, backed into a parking stall in the parking lot of a fast-food restaurant, and fallen asleep.  When the first officer arrived, he looked inside the truck and saw the defendant in the driver’s seat, not moving.  The officer opened the truck door and saw evidence of drug paraphernalia between the defendant’s feet.  Questions to the defendant and an investigation uncovered additional evidence.

The defendant was charged with felony DUI and possession of drugs and drug paraphernalia.  He moved to suppress the evidence, arguing the officer’s search was unreasonable because the officer failed to first knock on the window before opening the door.  The district court denied the motion, concluding the officer was justified in opening the door based on the community caretaking function.  The Utah Court of Appeals affirmed on alternative grounds, finding the officer was justified in opening the car door incident to a lawful traffic stop under the standard in State v. James, 2000 UT 80, 13 P.3d 576, in which the Utah Supreme Court confirmed officers have the right to direct a driver to leave a vehicle during the course of an investigation incident to a stop, and asserted that opening the car door is a reasonable means of ensuring compliance with such an order because there is no functional‖ or constitutionally relevant distinction between an officer opening a car door and a driver being asked to do so.

The Utah Supreme Court overturned its “sweeping statements in James,” which it concluded “have been revealed to be overbroad.”  It cautioned “we are not holding that any and all police acts of door-opening amount to Fourth Amendment searches,” and went on to specifically state, “The identity of the door-opener is not form over substance.  It is the very substance of the notion of a trespass . . . [that] may well have constitutional significance under the Fourth Amendment.”  It affirmed the denial of the defendant’s motion to suppress on the narrow basis that the officer acted in reliance on binding precedent in effect at the time.  Based on that ruling, the court concluded, “In so stating we need not and do not hold that a Fourth Amendment search is effected every time a police officer opens the door of a vehicle.  Nor do we decide whether or under what circumstances any such search would qualify as unreasonable.”

 

State v. Valdez

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The Utah Court of Appeals reversed a man’s convictions under a Fifth Amendment argument and determined the trial court incorrectly allowed the State to imply guilt from the man’s refusal to provide the passcode to unlock his cell phone.

A man was arrested after his ex-girlfriend alleged he kidnapped and threatened her.  The officers seized his cell phone.  The officers obtained a warrant to search the phone but were unable to access the phone because they did not have the passcode.  The man refused to give the police the passcode, and the officers were unable to access the phone’s contents.

The court of appeals determined that “communicating a cell phone passcode to law enforcement is a ‘testimonial act’ protected by the Fifth Amendment.”  The self-incrimination clause of the Fifth Amendment provides that a person shall not be compelled in a criminal case to be a witness against himself and creates a privilege “that protects a defendant ‘against being incriminated by his own compelled testimonial communications.”  The court discussed that communications are protected under the Fifth Amendment only if: 1) the communication is compelled; 2) the communication is testimonial; and 3) the communication is incriminating.  In addressing whether a cell phone pass code is “testimonial,” the Court discussed the “touchstone” of the analysis is “whether the government compels the individual to use ‘the contents of his own mind’ to explicitly or implicitly communicate some statement of fact.”

The Court discussed two ways in which officers could gain access to a suspect’s locked phone after a warrant has been obtained: 1) asking the suspect to give the code to the officers; or 2) asking the suspect to unlock the phone and then turnover the unlocked phone.  The Court relied on other jurisdictions that have recognized that by asking a suspect to communicate the passcode, the officers are seeking a response that is testimonial “in ways that simply turning over an unlocked phone is not, because such a request asks for the code itself.”  Because the detective testified that he told the man he had a warrant for the phone and was asking for the passcode, and the man refused to give him the passcode, this fit into the first situation.  The Court determined that the request that the man “make an affirmative verbal statement” was testimonial.

The court also analyzed how the State used the man’s refusal to provide the passcode.  It determined the State used the evidence to imply the man’s guilt, and “quite clearly invited the jury to draw an inference of guilt from the man’s silence.”  It determined this was improper.

 

Torres v. Madrid

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“The question in this case is whether a seizure occurs when an officer shoots someone who temporarily eludes capture after the shooting.  The answer is yes:  The application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person.”

Officers arrived at an apartment complex to execute an arrest warrant for a woman accused of white-collar as well as drug trafficking, murder, and other violent crimes.  The officers saw Torres with another person near a car in the parking lot of the complex.  As the officers approached the vehicle, the other person left.  Torres, who was experiencing methamphetamine withdrawal, got into the driver’s seat of the car, and the officers tried to talk to her.  She did not notice them until one of them tried to open the door of her car.  Although they were wearing tactical vests marked with police identification, Torres saw only that they had guns and thought the officers were carjackers.  She fled, trying to escape.  Neither Officer Madrid nor Officer Williamson stood in the path of Torres’ car but both fired their service pistols to stop her, striking her twice in the back.

Torres escaped and, after asking a bystander to report an attempted carjacking, stole another car idling nearby.  She drove 75 miles to a hospital, was airlifted to another, and was arrested the next day.  She pleaded no contest to aggravated fleeing from a law enforcement officer, assault on a peace officer, and unlawfully taking a motor vehicle.

Torres later filed a §1983 civil rights action against the officers.  She claimed the officers used excessive force in shooting her, in violation of the Fourth Amendment.  The district court granted summary judgment to the officers, and the Tenth Circuit Court of Appeals affirmed on case law establishing a seizure does not occur where the suspect’s movement is not terminated or the officers do not gain control over the suspect.  The United States Supreme Court reversed.

The Court limited its holding in several respects.  First it clarified, “We stress [] that the application of the common law rule does not transform every physical contact between a government employee and a member of the public into a Fourth Amendment seizure.  A seizure requires the use of force with intent to restrain.  Accidental force will not qualify.”  It also explained that “the appropriate inquiry is whether the challenged conduct objectively manifests an intent to restrain,” not the subjective motivations of the officers or subjective perceptions of the seized person.  Because the officers’ shooting “objectively manifested an intent to restrain her from driving away,” it concluded “the officers seized Torres for the instant that the bullets struck her.”

The Court did not conclude whether the seizure was unreasonable, or whether qualified immunity applied.  It simply narrowly ruled “the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued.”

 

United States v. Cade

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Upon receiving information about the identity and location of two robbery suspects, officers went to the home of the male suspect’s mother to conduct a “knock and talk.”  However, the female suspect opened the door to bring the trash out, saw the officers, and immediately retreated into the home and closed the door.  One officer tried kicking in the door, while other officers intervened to stop the attempt to break down the door.  The male suspect’s mother later appeared at the door, hysterical and crying because there were children inside, and she demanded to know what the officers wanted.  The suspects were later arrested. A search warrant for the home was issued, and officers found a bag with two guns, some cartridges, and the male suspect’s identification.

The defendant appealed the denial of his motion to suppress, arguing his mother’s statements at the police station identifying him from surveillance footage of the robberies were involuntary because she was still in a state of shock from the events of the evening.  The Tenth Circuit reviewed the video of the mother’s interview with the detective, noting she appeared calm at the police station and her statements appeared to be voluntary.  It also noted that the mother was specifically told by the interviewing detective that she did not have to look at any photographs, but she agreed to do so.  There was no other evidence that the woman’s testimony was involuntarily, and the Tenth Circuit affirmed the denial of the motion to suppress.

 

United States v. Chavez

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A deputy stopped Chavez for running a stop sign, but Chavez fled as the deputy approached the car on foot.  The deputy pursued Chavez, who ran a red light, drove above the speed limit, and almost collided with an ambulance, trying to get away.  He drove the car at least a couple hundred feet up a private dirt roadway, leaving it running with a dog inside near a trailer and an RV.  The deputy opened the car door and put the car in park.  While he was getting out from doing so, he saw what he believed to be the grip of a handgun in a black holster on the driver-side floor.  He shut the door, leaving the firearm in place.

Another man emerged from the RV and told the deputies the car belonged to a man and woman who lived in the trailer.  Another deputy found Chavez in a nearby pit, and he was asked, without being given Miranda warnings, whether he was a convicted felon, to which Chavez responded yes.  The deputies arrested Chavez.  A check of a database revealed Chavez had been arrested several times and was also driving with a suspended license.

At the conclusion of an inventory search of the car in preparation for impounding and towing it, which yielded the gun seen earlier, a woman came out of the trailer and convinced the deputies she owned the car.  The deputies left the car where it was parked but kept the firearm.  A subsequent NCIC search confirmed Chavez was indeed a convicted felon.

Chavez was indicted for being a felon in possession.  He filed a motion to suppress, which the district court denied.  The Tenth Circuit Court of Appeals reversed.

The court first concluded Chavez had a reasonable expectation of privacy in the car because it was not abandoned in a public place but parked outside his residence.  The court next concluded the deputies saw the firearm in plain view but their continued seizure of it after releasing the car to its owner violated the Fourth Amendment.  It explained the warrantless inventory search advanced by the deputies was unlawful because vehicles are not generally towed from private property unless the vehicle itself is needed as evidence.  Moreover, the car was on the owner’s property.  Because the inventory search was invalid, the continued seizure of the weapon was not justified.

The court continued that the community-caretaking doctrine did not apply because “a warrantless seizure of a firearm and ammunition [is justified under that exception] only when there were concerns about protecting the public.”  The court reasoned that the car was not parked in a public spot readily accessible to others, but “at the end of a long, private, dirt road outside an isolated trailer.”  Moreover, the owner of the car could have retrieved the firearm from the car, eliminating any possible danger of leaving it there.

Additionally, the Court ruled that the deputies violated Chavez’ Miranda rights when they asked if he was a convicted felon.  Therefore, they lacked probable cause to seize the firearm for commission of that crime.  And finally, the fact there was a gun in the car was not evidence of criminal conduct, without more.

 

United States v. Goldberg

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A state trooper stopped the defendant for traffic violations on the highway.  While the trooper was writing a warning, another officer brought a drug-sniffing dog by the car, and the dog alerted.  The troopers searched the vehicle, finding two kilo-sized bricks of cocaine.  The man moved to suppress evidence of the cocaine because he disputed that the dog’s behavior amounted to an actual alert.  The dog was trained to sit if she can go directly to the source of the odor, and if she cannot go directly, she exhibits a change in her normal behavior.  The dog’s handler testified that even though the dog did not sit, the dog’s behavior of hopping up on the vehicle, moving her head back and forth, standing still, and freezing was a change in her normal behavior and still constituted an alert.

The Tenth Circuit Court of Appeals noted it was unclear if the man was challenging the district court’s factual finding that the dog’s behavior constituted an alert or if it was urging the court to conclude that “only a dog’s trained signal of final indication can establish probable cause.”  The Tenth Circuit determined the district court did not clearly err in its factual finding.  It also noted its own precedent that a dog’s alert, as opposed to a final indication, was sufficient to establish probable cause.

 

United States v. Jones

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The defendant was convicted of possession of a firearm and ammunition after a felony conviction.  A bail bondsman notified sheriffs that the man was living in a shop while there were two outstanding warrants for his arrest.  The bail bondsman had known the man and his girlfriend for years, and had previously provided reliable information to the sheriffs.  A deputy sheriff contacted the FBI to assist in arresting the man because of his known propensity for violence.  One of the FBI agents confirmed that he already believed the man was living at the shop.  The deputy sheriff, FBI agent, bail bondsman, and others went to the property to arrest the man.  While conducting a protective sweep, the deputy saw a gun wedged between couch cushions.  He obtained a search warrant and collected the gun.

The defendant filed a motion to suppress, arguing that the shop belonged to his grandfather and the police had no search warrant or any reason to believe he was living there.  Applying the Payton test, the Tenth Circuit determined the deputy had an objectively reasonable belief that the man was residing on the property, based on the information from the bail bondsman and the information from the FBI agent.  Additionally, it determined the deputy had a reasonable belief that the man was physically present at the shop the morning of his arrest because the bail bondsman told the deputy the man was currently at the property.  And the bail bondsman accompanied law enforcement to the property, “making himself liable to accountability if his tip was fabricated.”

 

United States v. Khan

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The Tenth Circuit Court of Appeals affirmed the convictions of two brothers for drug trafficking and money laundering.  It determined a search of the residences of one of the brothers was proper as the magistrate judge had a substantial basis for concluding the affidavits in support of the warrants established probable cause.  And seizure of items not listed in the warrant was supported by the plain view doctrine.

One of the brothers was a doctor who operated a medical practice in Arizona and Wyoming.  The doctor traveled between the clinics but primarily resided in Wyoming.  The doctor’s practice shifted toward pain management, and he regularly prescribed patients various controlled substances.  The practice also shifted to a primarily “cash-only” basis, but he also accepted payment in personal property, including firearms.  The government obtained a warrant for the doctor’s residences in Arizona and Wyoming and a business owned by him.  While searching the Arizona residence, the officers seized patient files, currency, firearms, and cars not listed on the warrant as items to be seized.  The doctor and his wife were charged with 23 counts.  The doctor moved to suppress the evidence gathered from the residences, which the district court denied.

The Tenth Circuit found no Fourth Amendment violation. It determined the DEA agent’s affidavit established an adequate nexus between the residence and evidence of a crime.  The Arizona residence was tied to the suspected drug trafficking because:  1) doctor transported medical records from his Wyoming office to his Wyoming residence; 2) he regularly traveled to Arizona to practice medicine; and 3) he maintained an office and residence in Arizona.

The Tenth Circuit determined that seizure of the currency and firearms was permitted under the plain view doctrine.  The Court clarified that there is no “inadvertent discovery requirement” under the plain view doctrine.  If an officer is on the premises pursuant to a valid warrant or under an exception to the warrant requirement, she may seize items which “immediately appear to be evidence of contraband of a crime.”  It further concluded that the “incriminating character” of the objects depends on the nature of the privacy invasion.  To “search an object under the plain view doctrine, its criminal nature must be immediately apparent at its initial discovery.”   But, to seize an object, “the criminal nature must be apparent at its seizure.  So, the plain view seizure of documents will be upheld “even when the police only learned of the documents’ incriminating nature by perusing them during a lawful search for other objects.”

The search of the Wyoming residence also did not violate the Fourth Amendment.  The Tenth Circuit reaffirmed that a magistrate judge can reasonably draw inferences from the government’s evidence.  The crucial analysis is whether the affidavit supporting the warrant established a nexus to the residence.  Because the government was investigating the doctor’s ongoing and continuous criminal activity, his phone calls that he would bring patient files home was not “too stale.”

 

United States v. Mercado-Garcia

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The defendant challenged his convictions for drug-related offenses.  The Tenth Circuit upheld his convictions and concluded the district court did not err in denying his motion to suppress evidence because the man engaged in a consensual citizen-police encounter.

The Tenth Circuit determined there was no Fourth Amendment violation because the traffic stop began as a Fourth Amendment seizure but evolved into a consensual citizen-police encounter.  The court discussed the many factors to determine whether an encounter is consensual.  Here the officer initiated a traffic stop, gave the man a speeding ticket, returned the man’s driver’s license and documents, and told the man he was free to go.  The man began walking back to his car, and then the officer called him by name and asked if he could ask the man some questions.  The man agreed and talked to the officer, making it a consensual encounter.  An objectively reasonable person in the man’s position would have felt free to decline to answer the officer’s questions and go on his way.

The man argued that it was not reasonable for him to feel like he could leave as he was a “person of color” and did not feel he could leave.  The Tenth Circuit, relying on precedent, rejected “interjecting race into the objective reasonable person test.”  The Court also determined the officer had reasonable suspicion to later detain the man further and deploy his drug-sniffing dog.  Considering the totality of the circumstances, and the man’s responses to the officer’s questions (which kept changing), the officer had reasonable suspicion of potential drug activity.

 

United States v. Murray

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Two troopers saw the defendant driving erratically on the interstate.  They followed him to a gas station and inside the convenience store where they began talking with him.  At one point in the conversation, the defendant volunteered that his brother had rented the car for him and that the car was having a traction control problem. When the trooper asked if he could see the rental car agreement, the defendant agreed and led the troopers to the car.  When the defendant opened the front passenger door to retrieve the rental agreement from the glovebox, one of the troopers immediately smelled a strong odor of raw marijuana.  The troopers handcuffed the defendant and searched the car, finding 64 pounds of marijuana and a loaded gun.

The defendant was criminally charged and filed a motion to suppress the evidence.  The district court denied the motion, and the Tenth Circuit Court of Appeals affirmed.  It based its conclusion on the dash camera recording, which showed:

  1. The defendant’s interaction with the troopers occurred in a public place and was not coercive.
  2. The troopers approached the defendant in broad daylight at a busy gas station open to the public.
  3. There were other patrons at the gas station who were visible on the video.
  4. There was no evidence that the troopers blocked the defendant’s path of exit, or otherwise restrained him.
  5. The troopers approached the defendant inside the convenience store and initiated a conversation during which there was no evidence that they intimidated, touched, or restricted the defendant’s movements.
  6. The defendant voluntarily consented to show the troopers the rental car agreement and then led them to his rental car.
  7. It was only after the defendant opened the door to the rental car that the troopers smelled a strong odor of raw marijuana, took the defendant into custody, and searched the vehicle.

 

United States v. Reese

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The defendant argued he was arrested for being a felon in possession of a firearm without probable cause, and that officers had no right to search him.  The key witness was a police sergeant who ordered other officers to detain the man.  The sergeant had almost twenty years of experience investigating drug crimes.  The sergeant was at the police station, surveilling an area with cameras, and communicated with two detectives who were on-site.  The team also had a confidential informant on-site who was to buy narcotics from anyone willing to sell them to him.

The sergeant recognized the man from previous drug and weapons accusations.  The sergeant observed the man walking with a woman, stopping, and reaching inside a pouch on the front of the woman’s hoodie.  Then the man turned and continued walking.  The woman stopped for a few seconds before resuming walking.  The woman stopped to talk to the informant, then followed the man around the corner; the informant followed as well.  The woman appeared to toss something on the ground between herself and the informant.  The informant picked something up from the same spot and dropped something on the ground before walking away.  While there were issues with the camera footage, the detectives indicated the woman appeared to pick up some money from off the ground, and she was no standing very close to the man.  The sergeant told other officers to “freeze” the man and woman while they confirmed with the informant that he had purchased drugs from the woman.  Officers handcuffed the man, patted him down, and pulled a firearm from his waistband.

The Tenth Circuit Court of Appeals analyzed whether the sergeant had requested the detectives detain the man or arrest him, under the Terry analysis.  The Court determined it was a detention and not an arrest.  After reviewing the video footage, the Tenth Circuit concluded it was consistent with what the sergeant saw:  the man grabbing something out of the woman’s hoodie and putting something back.  It determined the district court’s finding that the sergeant was credible was not clearly erroneous as he was “forthright in identifying what he did and did not see in the moment.”  Given the sergeant’s years of experience investigating drug crimes, combined with the events witnessed through the surveillance, the radio reports from on-site detectives, and the sergeant’s prior knowledge about the man, there was reasonable suspicion to detain the man.

The Court also determined the officers’ use of handcuffs did not transform the Terry stop into an arrest because the officers had been listening to the radio between the sergeant and the detectives, knew that the man appeared to have been involved in a drug deal only minutes earlier, and heard one of the detectives identify the man by name and that he was a violent gang member.

 

United States v. Smith

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Law enforcement obtained a warrant to install a GPS tracking device on the defendant’s truck.  The warrant was supported by an affidavit with information from a “confidential reliable informant.”  The affidavit also included the defendant’s criminal history, the exact address of the truck, and the VIN number.  The tracker’s location history placed the truck at a rural location where an oil pump was missing, and later at a business where the missing pump was found.  The owner of the business where the pump was found told law enforcement he purchased the motor from the defendant.

The defendant moved to suppress the evidence obtained from the search warrant, arguing the supporting affidavit failed to establish probable cause.  The Tenth Circuit determined the affidavit had enough information to supply a minimal nexus between the truck and the crime alleged, justifying the officer’s good faith reliance on the probable cause determination of two judges, satisfying the “good-faith” exception.  The affiant made no false representations that would have misled the judge.

 

United States v. Spence

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Just over three months before the stop at issue in this case, Officer Gregory participated in a stop of Ms. Baker’s van and learned during the stop that her driver’s license was suspended.  While in jail, Ms. Baker asked Officer Gregory if he would pull her over when she got out if he knew she had a suspended license.  He said he would.  When he discussed her suspended license with other officers, no one indicated it had been reinstated.

Two days before the stop involved in this case, Officer Gregory received a tip that Spence, who was a convicted felon, was trying to sell a firearm.  The day of the stop, Officer Gregory saw Ms. Baker and Spence standing outside the same van Ms. Baker was driving during the prior stop that resulted in her incarceration.  Later that day, he saw the van on the road and initiated a stop based on his suspicion Ms. Baker was driving with a suspended license, but without checking the status immediately before the stop.  Officer Gregory arrested Ms. Baker for driving with a suspended license and, during a search of passenger Spence, discovered Spence had a firearm.  He was arrested for being a felon in possession.

Spence filed a motion to suppress, which the district court denied.  The Tenth Circuit Court of Appeals affirmed the dismissal, concluding Officer Gregory had reasonable suspicion to stop Ms. Baker for driving without a valid license.  It reasoned that Officer Gregory knew Ms. Baker did not have a valid driver’s license 34 days before she was release from jail, and that amount of time did not render his reasonable suspicion stale, particularly where her question to him in jail led him to reasonably believe she did not plan to renew her license.  The court did note Officer Gregory could have simply confirmed his suspicion before pulling her over.  Good policy would support that.

 

United States v. Torres

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After conducting surveillance of a specific area including an SUV that was parked illegally, an officer stopped an SUV and recognized the driver from previous incidents.  As the officer approached the vehicle, he smelled marijuana.  The officer questioned the passenger but believed she was giving false information.  The passenger eventually admitted to giving a fake name, that she had outstanding warrants, had concealed marijuana in her clothing, and attempted to buy heroin shortly prior to being stopped.  The officers asked the man to get out of the vehicle, patted him down, and found a handgun.

The defendant was convicted of possessing a firearm after a felony conviction.  He moved to suppress the evidence of the handgun found during a pat-down, arguing it violated the Fourth Amendment because the officer lacked reasonable suspicion.

The Tenth Circuit Court of Appeals concluded the pat-down search did not violate the Fourth Amendment because the stop of the SUV was permissible, the police officers did not unreasonably extend the traffic stop, and the officers had reasonable suspicion to believe the man was armed and dangerous.  Part of this analysis turned on whether the officer had probable cause to believe the man was driving the same vehicle the officer had earlier seen to be illegally parked.  The officer testified he had lost sight of the SUV for less than a block and he had no doubt the SUV being stopped was the SUV that had been illegally parked.  Further, the police had probable cause to believe the man had committed a parking violation because the officer had seen a similar SUV illegally parked.  The officer had probable cause to stop the vehicle and issue a parking ticket.  Additionally, the officers reasonably extended the traffic stop by questioning the passenger about her identity after they smelled burnt marijuana.  And even though the officers directed their questions to the female passenger, the resulting suspicions about her answers could reasonably extend to the man since a passenger “will often be engaged in a common enterprise with the driver.”

Finally, because the officers reasonably suspected that the man was armed and dangerous, the pat-down search did not violate the Fourth Amendment.  The police knew the man had driven the passenger to a place where she tried to buy heroin, the SUV smelled of marijuana, they knew the man had a murder conviction, that he was believed to be a gang member, had recently refused to cooperate with the police after being shot by a gang member, and they could reasonably infer he would protect himself by carrying a gun.  It also noted that the man’s “pleasant conversation did not prevent reasonable suspicion that the man would pull a gun.”

 

United States v. Williams

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The Tenth Circuit Court of Appeals ruled that felony stop procedures taken during a traffic violation were not justified where the officers lacked reasonable suspicion that the car was actually occupied by a fugitive.  It therefore suppressed evidence of drugs and a weapon found during the stop.

 

Vetter v. K-9 Unit Deputy Sanders

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A suspect drove away from officers and later fled on foot before a deputy and his police dog arrived on scene.  The man filed a § 1983 civil rights suit, alleging the deputy let the dog attack him, and the deputy unlawfully punched and hit him.

The deputy filed a motion to dismiss, or in the alternative a motion for summary judgment, asserting he was entitled to qualified immunity.  He attached the sheriff’s department’s incident report and an affidavit he prepared for litigation.  He also attached to his reply memorandum three photographs of the man taken at the arrest scene.  The district court converted the motion to a motion for summary judgment and held the deputy was not entitled to qualified immunity.

The Tenth Circuit determined the district court properly treated the verified complaint as an affidavit and testimonial evidence when resolving the summary judgment motion.  It also determined the facts alleged in the verified complaint were not blatantly contradicted by the deputy’s supplemental narrative in the incident report, his affidavit, and the three photographs of the man taken at the arrest scene.  First, the court limited its application to accepting the facts in the complaint to cases involving “objective documentary evidence, such as video recordings or photographs” and “where the plaintiff [] was the source of [] testimonial evidence blatantly contradicting her account.”  The Court would not, however, rely on the deputy’s testimony of the events as evidence blatantly contradicting the district court’s factual determinations.

Second, as to the arrest-scene photographs, the Court determined they could be viewed to support the man’s account of the events.  Because the arrest-scene photos did not “utterly discredit” the man’s factual allegations, there was no evidence his version of the facts was blatantly contradicted by the record.

The Tenth Circuit then addressed the qualified immunity arguments under the facts the district assumed true at summary judgment.  First, it determined that considering the totality of the circumstances, the deputy’s conduct constituted excessive force because the man did not pose an immediate threat to the deputy or anyone else at the time the deputy struck him in the face and released his dog to bite him.  Specifically, the man had already been apprehended by two officers and was unarmed.  Second, it determined this constitutional right was clearly established at the time of the incident.

 

Feldman v. SLC

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Salt Lake City owns Parley’s Historic Nature Park (Park).  Ms. Feldman and her husband, Leonid, were walking with their dogs in the Park when the dogs entered a creek in the park. When Leonid entered the creek to retrieve the dogs, he was pushed downstream and was unable to retrieve them.  Ms. Feldman then entered the creek but was caught in the current and died.  Leonid and Ms. Feldman’s children sued the City for negligence, premises liability, negligent infliction of emotional distress, vicarious liability, and wrongful death.  The City responded with a motion to dismiss, which the Court granted.

The Utah Supreme Court affirmed in part and reversed in part.  First, it concluded Utah Code Ann. § 57-14-401(1), bars claims against a landowner who opens their land to the public free of charge for a recreational purpose for injuries caused by the inherent risks of that activity, applies to wrongful death actions and barred the plaintiffs’ claims.  It reasoned that had Ms. Feldman lived, and § 402 barred her claims, the City could not be liable, and it would be “bizarre” to hold the City liable where she passed.

Second, the court concluded § 401 did not violate the Utah Constitution because it provides a defense that is narrowly tailored (applies only when a landowner opens their land to the public for use free of charge and the injury is caused by an inherent risk of the recreational activity participated in), advances an important public interest (opening that land to the public for recreational use), and only protects defendants with no duty prior to opening the land to the public.

Third, the court ruled the plaintiffs adequately pleaded Ms. Feldman’s death was not caused by an inherent risk of entering the creek.  While it concluded walking her dogs and entering the creek constituted a recreational purpose for which the land was opened, it could not conclude at the motion to dismiss stage, based on the allegations of the complaint, that drowning in the creek was an inherent risk of walking in the park with her dogs.  Those allegations included “the Feldmans were with their dogs at the park; the dogs went into the water; and when Ms. Feldman entered the water to rescue the dogs, she drowned due to a dangerous current caused by manmade developments in the area.”  Those allegations “cannot establish conclusively that the risk Ms. Feldman encountered was expected in this setting.”  In other words, the complaint “sufficiently alleged that Ms. Feldman’s tragic drowning was not caused by a risk inherent in her recreational activity . . . .”

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