SCM NEWS & OPINIONS

Government Entities, Case Law Update – Law Enforcement, October 2020

All summaries are written by Heather White and are for informational purposes only. 

 

Emmett v. Armstrong

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Officers, including Officer Armstrong, responded to 911 calls of a fight at a wedding. He arrived in uniform in a marked police car with blue and white lights flashing. Armstrong directed a group of people at the scene to “shut up and stand there.”  When questioning people about who had been fighting, a woman identified Emmett. As Armstrong approached, Emmett began to walk away. Armstrong called for Emmett to come to him. Emmett glanced back and continued walking away and then began running. Armstrong chased Emmett for a short distance, yelling “stop” once before catching up with Emmett, and then yelling “stop” once more as he tackled Emmett to the ground. Armstrong regained his footing and stood over Emmett, who lay on his back on the ground. Once Emmett was on his back, he became visibly relaxed, and made no further movements indicating an attempt to run or fight back. Armstrong attempted to grab one of Emmett’s arms, and Emmett asked, “What the fuck are you doing?”  Officer Armstrong responded, “When I tell you to stop, you stop! Roll over!”  Emmett giggled and did not roll over. Armstrong then said, “You’re going to get TASE’d!” and immediately tased Emmett in the abdomen for a single, five-second taser cycle.

Emmett filed a 42 U.S.C. § 1983 civil rights suit, claiming Armstrong violated his Fourth Amendment rights by arresting him without probable cause and using excessive force in using his taser to effectuate the arrest. The district court order granted summary judgment to Armstrong on the basis of qualified immunity and Emmett appealed.

The Tenth Circuit Court of Appeals affirmed the ruling that Armstrong had probable cause to arrest Emmett for interfering with a police officer. It explained, “Although Armstrong did not verbally identify himself as a police officer, Officer Armstrong objectively believed Emmett knew he was a police officer” based on the fact he arrived on scene in a marked police vehicle, wearing his uniform, with his car’s lights on and flashing.

It reversed, however, the ruling that no reasonable jury could conclude Armstrong used excessive force in tasking Armstrong. It reasoned that the video footage did not “blatantly contradict” Emmett’s version of the events, and in fact likely corroborates Emmett’s version that Armstrong tased him without warning and after he had ceased resisting.

 

Kapinski v. City of Albuquerque

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Kapinski was arrested and prosecuted for the murder of two men. The jury found he acted in self-defense and concluded he was not guilty. Trial evidence included video surveillance footage of the incident. Kapinski subsequently brought a 42 U.S.C. § 1983 civil rights claim against the detective who arrested him, and her employer, the City of Albuquerque. He claimed the defendants violated his Fourth Amendment rights by failing to include the surveillance footage in the warrant affidavit for Kapinski’s arrest.

The district court ruled Kapinski failed to show a constitutional violation because the video footage would not have negated probable cause for his arrest. It, therefore, granted summary judgment in favor of the detective. The plaintiff appealed, and the Tenth Circuit Court of Appeals affirmed the summary judgment ruling in favor of the detective.

In short, the court explained that the eyewitness reports and video footage provided a substantial probability that Kapinski committed the murders. The video did not contradict the eyewitness accounts. While ideally the recording would have been attached and referenced in the warrant application, what it showed did not negate probable cause, rendering the omitted video footage immaterial. Moreover, there was no evidence the detective acted out of a reckless disregard for the truth in failing to include it. Therefore, its exclusion from the warrant affidavit was harmless and the plaintiff could not establish a Fourth Amendment violation.

 

Reavis v. Frost

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Deputy Frost stopped Coale believing Coale was a suspect in a recent stabbing. Frost exited his vehicle and approached the truck, leaving Frost standing in the middle of the road with Coale’s truck headlights in Frost’s eyes. Frost identified himself as an officer and repeatedly commanded Coale to show his hands. When Coale did not show his hands, Frost pointed his gun at Coale. In response, Coale accelerated his truck forward and toward Frost. Frost moved as best he could out of the way, and Coale’s truck went around Frost, passing within inches of Frost. About the time Coale’s side mirror passed Frost, Frost fired five to seven times as the vehicle passed. The vehicle continued a short way down the road and ran into a ditch. Coale died from a gunshot wound to the back of the head.

Reavis, the administrator of Coale’s estate filed a 42 U.S.C. § 1983 civil rights action against Frost alleging Frost used excessive force against Coale in violation of the Fourth Amendment. The district court denied Frost’s motion for summary judgment on the § 1983 claim, and Frost appealed. The Tenth Circuit Court of Appeals affirmed. It reasoned that at the time of the shooting, officers were on notice that the use of deadly force is unreasonable when a reasonable officer would have perceived that the threat had passed. The court recognized that “‘circumstances may change within seconds’” thereby “‘eliminating the justification for deadly force.’” Noting all of the bullets were behind and to the side of Coale, the court concluded Frost did not fire his weapon until the front of the vehicle and Coale had passed Frost. Moreover, there were no other officers or bystanders in the vehicle’s path. Therefore, the court concluded “a reasonable officer in Deputy Frost’s position would have perceived that Mr. Coale’s vehicle had passed him, and he was no longer in any immediate danger from an oncoming vehicle when he raised his gun to fire. A reasonable officer in Deputy Frost’s position would have also perceived that Mr. Coale’s vehicle did not pose any immediate danger to anyone else,” which was clearly established at the time of the shooting.

 

United States v. Cortez

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Sergeant Alvarez recorded a northbound pickup truck going 66 miles per hour in a 55 mile-per-hour zone about fifty miles from the Mexico border. He stopped the pickup for speeding. Traveling in the pickup were six individuals:  the driver Cortez, an adult woman in the front passenger seat, two small children, and two adult male passengers in the back seat. Sergeant Alvarez discussed with Cortez how fast she had been going, asked for her license, insurance, and registration, and had her stand at the front right bumper of his police vehicle. While running Cortez’s license through his computer system to check for outstanding warrants, Sergeant Alvarez asked Cortez a series of questions regarding her travel plans and whom she was traveling with. He asked where Cortez was coming from, where she was headed, and who was traveling with her.

Cortez replied that she was coming from Douglas, Arizona—which lies right on the Mexico border—and that she was heading to Alabama with her sister, niece, and nephew. Cortez did not mention the two adult men in the back seat. Sergeant Alvarez asked a few questions regarding the relationship between the female passenger and the children, how long Cortez had been in Douglas, whether she was working there, and where and with whom she was staying while in Douglas. Cortez replied that she had not been working in Douglas, and had been staying with her boyfriend. When Sergeant Alvarez asked what he did for a living, she replied that he was a truck driver. Finally, Sergeant Alvarez asked whose truck Cortez was driving, to which she responded that it was Reyes-Moreno’s vehicle.

Sergeant Alvarez returned to the pickup to check the truck’s vehicle identification number. He then asked the female passenger a series of questions similar to those he posed to Cortez, at which time he noticed the two adult men in the back seat of the pickup. He asked the passenger about the men. She was initially defensive, and ultimately said she did not know them but later claimed they had picked them up at a gas station. Sergeant Alvarez asked the men for identification. Neither initially responded but eventually told Alvarez no. Sergeant Alvarez returned to his police vehicle and radioed for assistance from Border Patrol. He then proceeded to complete the remaining portions of the traffic stop, including discussing how fast Cortez had been going, what her options were for paying the ticket, and whether she planned to pay or contest the ticket. Sergeant Alvarez also continued to ask Cortez questions regarding whom she was traveling with, the circumstances surrounding picking up the two men, and whether there are a lot of lakes in Alabama.

Approximately twenty minutes into the stop, Border Patrol arrived and Sergeant Alvarez indicated the traffic stop had concluded, returning Cortez’s license and providing her with a completed citation. In the subsequent immigration investigation conducted by Border Patrol, the two adult men admitted they were undocumented and present in the United States unlawfully.

As a result, Cortez and the passenger were charged with conspiracy to transport undocumented persons. They filed a joint motion to suppress evidence and statements obtained from the traffic stop, claiming Sergeant Alvarez violated their Fourth Amendment rights by impermissibly extending the scope of the stop beyond its mission without independent reasonable suspicion, and violated their Fifth Amendment rights by questioning them without first providing Miranda warnings. The district court denied the motion, and they appealed. The Tenth Circuit Court of Appeals affirmed the ruling.

The Tenth Circuit explained Sergeant Alvarez developed reasonable suspicion by the time he spoke to the two men in the back of the pickup, approximately seven minutes into the stop, and did not unreasonably prolong the stop through unrelated questioning before that point. It reasoned the circumstances indicated numerous factors Cortez may have been engaged in criminal transportation of undocumented aliens.

  1. The stop occurred approximately fifty miles from the Mexico border, with Cortez traveling northbound away from the border on State Road 80, which is the only route directly from the border that is without border patrol checkpoints.
  2. Cortez admitted coming from Douglas, Arizona, which lies directly on the border with Mexico.
  3. When initially asked with whom she was traveling, Cortez omitted any mention of the two adult men in the back seat. Her female passenger appeared evasive and defensive when questioned about the men.
  4. The men did not possess identification, and both were unresponsive and recalcitrant in the face of questioning.
  5. Cortez’ eventual explanations for traveling with the men—that they had picked them up as hitch-hikers from a gas station – was suspicious. It is peculiar that two women entrusted with their sister’s small children would pick up two strange men they met at a gas station and then permit them to travel alone in the back seat in close proximity to an eleven-year-old.

The Court also rejected the argument that the officer unreasonably prolonged the stop prior to the seven-minute mark. It explained, in the context of an ordinary traffic stop, law enforcement may:

  1. Request a driver’s license and registration;
  2. Run requisite computer checks;
  3. Issue citations or warnings;
  4. Inquire about the driver’s travel plans and the identity of the individuals in the vehicle;
  5. Conduct criminal record checks;
  6. Search for outstanding warrants; and
  7. Ask limited questions directed at ensuring officer safety.

None of Sergeant Alvarez’s inquiries in the first seven minutes of the stop detoured from the stop’s mission.

Finally, the court rejected the argument that Cortez’ Fifth Amendment rights were violated because Miranda warnings need only to be given once a suspect is in custody and faces questioning that constitutes interrogation. Nothing about the circumstances of the traffic stop suggest anything beyond an ordinary Terry stop occurred.

 

United States v. Jenkins

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In this case, the Tenth Circuit Court of Appeals addressed whether officers had probable cause to search Jenkins’s home with a warrant upon learning that the State of Oklahoma was currently prosecuting him for serious drug crimes and finding a small baggie with methamphetamine residue among the trash left for disposal on the street outside his house. “We hold that together these factors provided the warrant-issuing judge with a substantial basis to conclude that the officers had probable cause” to seek a warrant to search Jenkins’s home for “Methamphetamine, Drug Paraphernalia, Digital and Manual Scales, Drug Proceeds . . . firearms, ledgers, and other types of documentation regarding the sale of narcotics and tending to establish dominion and control over the location being searched.”

The court explained the warrant affidavit relied on the following as support:

  1. A confidential informant’s tip that a confidential source gave Oklahoma City police officers a vague tip that Jenkins was involved in criminal activity and that he lived on Wilshire Boulevard in Oklahoma City, Oklahoma;
  2. Oklahoma City Police Department and Oklahoma County jail records that both provided Jenkins’s address;
  3. Jenkins’s vehicle-registration information;
  4. Jenkins’s 2005 drug-trafficking case and ongoing drug-related prosecution for possession of methamphetamine, Alprazolam, marijuana, and drug paraphernalia; and
  5. A small baggie containing methamphetamine residue in the trash outside of Jenkins’ residence obtained during a trash pull, along with rifle ammunition, and a vehicle-impound sheet.

As an interesting side note, one of the officers involved in the case was named Sergeant Rambo.

 

United States v. Madrid-Mendoza

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New Mexico State Police Officer Lucero stopped a car driving five miles over the posted speed limit on I-40 Albuquerque, New Mexico. When asked for his license, registration, and insurance information, the driver, Salazar, stated he did not have a driver’s license and gave Officer Lucero a Mexican voter identification card, his left hand was shaking “uncontrollably.”  Defendant was sitting in the front passenger seat of the car, and several more men, between sixteen and nineteen years of age, were in the back acting “really nervous . . . .”  Lucero also noticed “a lot of luggage sitting in the back cargo area . . . .”

Lucero contacted and informed his supervisor he suspected the men in the back were being smuggled. The supervisor told Lucero that he would send Homeland Security agents to investigate. In the meantime, Salazar told Lucero that he and the other men in the Honda, who he identified as coworkers, were traveling from California to Amarillo, Texas and that Madrid-Mendoza was the owner of the vehicle and had been driving, but had become tired and moved to the front passenger seat.

Lucero told Salazar that he was going to give him warning citations but first needed to check the car’s VIN number and federal sticker on the door jamb. He asked Salazar for permission, which Salazar gave. The VIN number and federal sticker matched.

Lucero began preparing warning citations “for speed and no driver’s license.” A printer problem briefly delayed Lucero in printing the warning citations. While Lucero was printing out the citations, he called his supervisor and a Homeland Security agent to determine when the Homeland Security agents would be arriving on the scene. Lucero reviewed the warning citations with Salazar and obtained Salazar’s signature on them. Twenty minutes after the initial stop, Lucero returned Salazar’s documents to him and had Salazar confirm receipt of his documents. Lucero then advised Salazar he was free to leave and told him to have a good day.

Salazar turned around and began walking back to the car. Before Salazar reached the car, Lucero called out to him and asked if he could talk to him a little bit. Salazar walked back towards Lucero and Lucero asked Salazar if he could ask him some additional questions. Salazar said yes.

Lucero asked Salazar about the purpose and destination of his trip. Lucero then began talking to Madrid-Mendoza. Lucero told Madrid-Mendoza he was free to leave and then asked if he could ask him some questions. Madrid-Mendoza agreed. Madrid-Mendoza identified a different employer than Salazar during questioning. Homeland Security agents arrived eight minutes after termination of the initial stop and asked the passengers in the Honda for their immigration papers. The passengers responded that they did not have any papers. The Homeland Security agents took all of the occupants of the car, including Madrid-Mendoza, into custody. Three of the men told the agents that they had paid Madrid-Mendoza to be transported to different states within the United States. Madrid-Mendoza confessed to being paid to transport undocumented aliens.

Madrid-Mendoza moved to suppress the evidence and statements obtained from his arrest. The district court conducted an evidentiary hearing and, based on the following reasons, denied the motion:

(1) I-40 is a major west to east smuggling route; (2) the driver did not have a driver’s license but instead produced, with his hand shaking “uncontrollably,” a Mexican voter identification card; (3) there were seven people in the vehicle; (4) the occupants in the back of the vehicle appeared “really young,” such that Officer Lucero thought they should be in school or with parents; (5) the occupants appeared “nervous,” “scared” and had a “deer in headlights look,”; (6) the occupants in the back of the vehicle kept looking forward and not at Officer Lucero; (7) there was a strong body odor in the vehicle; and (8) there was a lot of luggage in the cargo area of the vehicle. Later while asking “clarifying questions,” Officer Lucero also discovered inconsistency between Mr. Salazar and Defendant’s statements pertaining to the name of the company the men intended to work for in Amarillo, where they intended to stay, and who would pay for their rooms.

The Tenth Circuit Court of Appeals affirmed the district court’s denial of the defendant’s motion to suppress, concluding this information gave Lucero reasonable suspicion that the occupants of the car were involved in criminal activity, such as alien smuggling, and therefore the continued detention was permissible.

 

United States v. Meadows

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Meadows appealed the district court’s denial of her motion to suppress evidence obtained during a traffic stop. She argued the stop was unreasonable because it was based on probable cause of a Utah equipment violation, which the state has decriminalized.

The Tenth Circuit Court of Appeals rejected her argument, stating officers may conduct a traffic stop based on probable cause of a Utah equipment violation. It explained the Supreme Court has not suggested that there is any distinction between civil and criminal traffic infractions for Fourth Amendment purposes. Therefore the officer’s stop was reasonable and the court affirmed the district court’s order denying Meadows’s motion to suppress.

 

United States v. Shelton

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A few minutes before midnight on January 4, 2018, Officer Estrada was patrolling a residential neighborhood when he observed three people holding flashlights and standing around a car parked in the driveway. The car doors were open and the individuals appeared to be searching the car with flashlights. Knowing the neighborhood to be a high crime area and that vehicle burglaries commonly occur late at night and involve the use of flashlights, Officer Estrada suspected a burglary in progress. He turned on his emergency lights and blocked the driveway. By then, the individuals were all seated in the car with the doors shut, which heightened Officer Estrada’s suspicion.

As Officer Estrada exited his car and began walking toward the car in the driveway, the three occupants, one of whom was Shelton, got out and began walking towards the backyard of the residence. Suspecting they were attempting to flee, Officer Estrada twice called out, “Hey, come here.” In response, Shelton began running into the backyard. After a scuffle, Officer Estrada ultimately captured and arrested Shelton for battery and evading arrest. Shelton ultimately admitted he did not know who owned the car. Estrada obtained a search warrant authorizing a search of the car for drugs and paraphernalia. He found a backpack containing drug paraphernalia, a white crystalline substance, and a wallet with Shelton’s name on it. He also found a gun next to the wallet. After determining Shelton was a felon, Officer Estrada obtained a second search warrant that included the gun. He executed the second search warrant and seized the gun.

Shelton was charged with being a felon in possession of a firearm. He filed a motion to suppress, which the district court denied. Shelton pleaded guilty conditioned on his ability to appeal the denial of his motion to suppress. Among other things, Shelton argued on appeal that Officer Estrada lacked reasonable suspicion to detain him during the initial investigation and that the officer’s pursuit of Shelton onto private property was unsupported by probable cause or exigent circumstances. The district court denied the motion and Shelton appealed.

Rejecting the argument that Officer Estrada lacked reasonable suspicion to detain him, the Tenth Circuit Court of Appeals explained that Officer Estrada’s observation of several people, at midnight, holding flashlights and standing around a car parked in a driveway to a residence allowed him to permissibly infer that a burglary was in progress. This inference was further supported by the fact that Officer Estrada knew the neighborhood to be a high crime area. When Officer Estrada approached the vehicle, Shelton and one of the passengers and Shelton began to flee.

Given these circumstances, Officer Estrada’s suspicion of a burglary in progress was objectively reasonable, and he was justified in investigating the situation and detaining the individuals.

In rejecting the argument that Officer Estrada lacked the necessary probable cause to pursue Shelton onto private property without a warrant and that there were no exigent circumstances to support Officer Estrada’s pursuit of Shelton, the Tenth Circuit concluded Officer Estrada’s reasonable suspicion ripened into probable cause when Shelton ignored his commands and ran into the backyard, and attempted to flee, thus giving rise to the exigent circumstances necessary for Officer Estrada to pursue Shelton onto the property without a warrant.

 

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