Government Entities Case Law Update – Law Enforcement, October 2021
All summaries are written by attorney Heather White and are for informational purposes only.
McKitrick v. Gibson
Standing to challenge GRAMA rulings. In this GRAMA appeal, the Utah Supreme Court ruled that only a political subdivision or a requester has standing to appeal the decision of a local appeals board.
Redd v. City of Oklahoma City
Use of force factors. The Tenth Circuit Court of Appeals confirmed in this § 1983 civil rights case that the second factor in the Graham v. Connor analysis – the immediacy of the threat to the officer – “is the most important Graham factor and [can] easily outweigh[]” the other two factors, rendering an officer’s use of deadly force reasonable where the officer “did not recklessly precipitate the need to use force.” The underlying facts were fairly simple and unremarkable: whether the officer was justified in shooting a suspect who was reaching for a weapon in his waistband during a consensual traffic stop. The importance of this case is that the immediacy of threat to the officer is primary and is enough on its own, under the right circumstances, to justify the use of deadly force.
St. George v. City of Lakewood
Officers denied qualified immunity on motion to dismiss on excessive force claim. The Tenth Circuit Court of Appeals reversed a qualified immunity ruling from the district court in this civil rights case. The court concluded the plaintiff adequately pleaded an excessive force claim, asserting it was unreasonable for officers to believe the plaintiff posed a threat of grave danger to them or anyone else. It reasoned:
- Although the plaintiff was close enough to the officer to pose a significant threat with his shotgun, no officers had identified themselves or ordered him to drop the shotgun;
- The plaintiff made no hostile motions or manifested any intention to harm an officer;
- The officers acknowledged they lacked probable cause to believe the plaintiff had committed the crime they were investigating;
- The officers had no reason to believe the plaintiff would refuse to comply with any orders;
- He initially did not have a weapon;
- He openly expressed reasonable doubts the people telling him to exit the house were officers;
- He did not say or do anything threatening with his shotgun, “obviously carrying it for protection rather than for aggression”;
- The shooting officer fired 21 seconds after she was alerted the plaintiff was walking around the building, and close to six minutes after he had come outside, negating the argument the shooting officer made a split-second decision.
Based on these alleged facts, the court ruled it was plausible the officer was unreasonable in thinking the plaintiff posed a sufficiently immediate threat to justify deadly force, justifying moving forward with discovery.
Sosa v. Demisch
Handcuffing, display of guns, and pat down during investigative detention; warrantless seizure on front porch. The Tenth Circuit confirmed that police are authorized to use forceful measures, even during an investigative stop, when reasonably necessary for the safety of officers or bystanders. It concluded this case landed in “a difficult middle ground” because there were facts suggesting the suspect was likely a threat of danger to the officers and facts that suggested he did not. For example:
- The suspect was calm;
- He did not resist;
- He did not make threatening movements;
- The 911 call did not mention weapons;
- The officers did not initially observe weapons; and
- The suspect was not aggressive or disobedient.
However:
- The officer had reasonable suspicion the suspect had committed a home invasion, a crime with potential for harm to people;
- They were responding to a Priority One 911 call, which required backup and indicated an immediate threat to life or property;
- He matched exactly the description from the call, which included more than just generic traits (gender, ethnicity, age, and two articles of clothing);
- The description came from a credible source, a witness who saw the home invader less than thirty minutes prior;
- The suspect was the only person in close physical and temporal proximity to the crime;
- The facts suggested a particularly high likelihood of violence: the intruder entered an occupied residence by smashing a glass door with a brick-sized rock and followed the victims inside to the bedroom.
“Considering, as we must, the totality of the circumstances, regardless of whether the Officers’ conduct was in fact unreasonable, reasonable police officers in the same position as Officers Demisch and Melvin could have thought that forceful measures were necessary for their safety. In other words, the Officers cannot be said to be ‘plainly incompetent’ for acting as they did.” (internal citations omitted).
The court then went on to “recognize the distinction between entering a front porch without a warrant to perform a search, which is clearly established to be presumptively unreasonable, and to seize a suspect, which is potentially permissible under” current Supreme Court precedent. Although foundation for that precedent “has been eroded by subsequent curtilage cases like Jardines,” the decision in Santana “upholding the constitutionality of a warrantless seizure at the threshold of a suspect’s home remains binding Supreme Court precedent.”
United States v. Garcia-Flores
Custodial interrogation, Miranda warning. Police executed a search warrant for pornography at Garcia’s residence. During execution of the search warrant, police interviewed Garcia. The officer conducting the interview began by reading Garcia’s Miranda rights. Garcia stated he was “absolutely” willing to proceed with the interview, but after some further questioning, he asked, “[I]s it, uh, possible to have a lawyer[?]” Despite this apparent reluctance and without further prompting from the officer, Garcia continued to explain his situation, elaborating for some time on a “darkness” with which he was struggling. Before asking any other questions, the officer sought confirmation that Garcia wanted to continue talking to police. Garcia again indicated he was “absolutely” willing to continue the interview. During the questioning that followed, Garcia admitted the computer was his, he was its sole user, and no one else knew his password. He also admitted he had downloaded and viewed child pornography. Garcia moved to suppress his incriminating statements, which the district court denied.
The Utah Court of Appeals affirmed the denial. It explained, if a suspect requests counsel at any time during a Mirandized interview, they are not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation. However, the request for counsel must be unambiguous. The court concluded, “Garcia did not make an unequivocal request for an attorney.” Moreover, after the statement, the officer asked clarifying questions of Garcia. He subsequently voluntarily initiated further dialogue, which constituted a second waiver.
State v. Gonzalez
Exclusion of facts from warrant application. An intruder entered Christina’s room and masturbated in her presence while she and her baby slept. A nanny cam caught the intruder performing the lewd act, holding a cell phone in his left hand. It showed the intruder was wearing a wedding ring on his left hand but did not capture his face. He appeared to be wearing a light-colored hoodie and dark pants.
A police lieutenant reviewed the nanny cam footage with Christina and inquired if she had any idea who the intruder might be. Christina suggested her brother-in-law, stating the intruder looked similar to him. She noted, however, her brother-in-law did not wear a wedding ring. She next identified Gonzalez, a close family friend. She revealed that several years ago, she had fallen asleep on the couch and awakened to find Gonzalez “snuggled up” to her. Gonzalez’s wife likely had the garage code to her home.
Lieutenant met with Gonzalez’s wife, who gave Lieutenant permission to search their home for clothing. Lieutenant performed a cursory search, looking for very dark pants and a light-colored hoodie, as shown on the nanny cam but did not find any items that matched the intruder’s clothing. Lieutenant turned the investigation over to a detective, who interviewed Christina. During their conversation, Christina again suggested both her brother-in-law and Gonzalez as possible suspects. She told Detective that the body type on the recording looked like her brother-in-law’s but also expressed doubt that the intruder could be her brother-in-law because he was not married, and the intruder wore a wedding ring. She also noted her brother-in-law did not own a cell phone like the one the intruder was seen holding in the footage and was “just not that kind of person.” Christina pointed out characteristics of Gonzalez that suggested he could be the intruder, such as his long features, including his hands. She stated the intruder’s legs appeared too short to be Gonzalez’s, but stated the angle of the nanny cam may be to blame. She was worried about pointing the finger at Gonzalez as his wife was her friend. After interviewing Christina, Detective discovered the nanny cam inverted colors of clothing depicted in its footage – light-colored items appeared dark and dark-colored items appeared light.
The next day, Detective spoke with Gonzalez in his driveway. He observed that Gonzalez’s body type “seemed very similar” to that of the intruder’s, including his hands and the way the ring sat on Gonzalez’s ring finger.” Detective also noticed Gonzalez used his left hand to hold his cell phone, the same way the intruder did in the nanny cam footage. Detective later viewed photographs of Gonzalez on Gonzalez’s wife’s Facebook page and observed Gonzalez’s body type was similar to that of the intruder, that Gonzalez and the intruder shared the same hand structure, and Gonzalez wore his wedding ring in the same location on his finger as the intruder.
Detective drafted an affidavit to secure, among other things, the addresses of cell towers that pinged Gonzalez’s cell phone during and around the time that the intruder had broken into Christina’s home. He did not provide details about the previous inappropriate incident, that Lieutenant had engaged in an unsuccessful search for clothing at Gonzalez’s home, that Christina named her brother-in-law as a possible suspect or her statement that the intruder’s legs appeared to be shorter than Gonzalez’s. Based on the affidavit, the magistrate issued a search warrant, and the police obtained the cell tower location data for Gonzalez’s cell phone. Using those records, the police determined that Gonzalez was at or near Christina’s home during the time of the burglary. With this new information, the police obtained a second search warrant allowing them to search Gonzalez’s home. With evidence gathered from both searches, the State charged Gonzalez.
Gonzalez moved to suppress the evidence gathered through execution of the two warrants, arguing the supporting affidavit for the first warrant was misleading because it omitted relevant evidence that negated probable cause. The district court agreed and granted the motion, finding Detective omitted three pieces of material information that affected the probable cause determination:
- The prior consensual search of Gonzalez’s home;
- Christina’s statements of equivocation and her identification of a brother-in-law as matching the physical description of the suspect.
- The prior incident occurred several years prior and did not detail the actual conduct.
The Utah Court of Appeals reversed. It confirmed that the defendant bore the burden of making a “substantial showing” that (1) the affiant intentionally or recklessly omitted facts required to prevent technically true statements in the affidavit from being misleading;” and (2) if supplemented with the omitted information, the affidavit would not have been sufficient to support a finding of probable cause. Using that standard, the court ruled probable cause still existed under the circumstances of the case because:
- The unsuccessful, consensual search was limited in scope and, when conducted, Lieutenant was unaware that the nanny cam inverted colors, meaning Lieutenant was not looking for the right clothing, making the fact that he searched but did not find what he was looking for immaterial.
- Christina’s equivocation about Gonzales:
- Was reasonable, given her explanation the angle of the nanny cam could have affected how long the intruder’s legs appeared;
- Was overcome by the similarities between the intruder and Gonzales, such as his long features and long hands;
- Was only worried about fingering Gonzales because his wife was her friend.
- Detective relied on his own observations of Gonzalez, where he noticed Gonzalez held his cell phone in his left hand like the intruder, observed photos of Gonzalez’s hand showing a likeness with that of the intruder, and noted the way Gonzalez wore his wedding ring was similar to that of the intruder.
- Her brother-in-law did not wear a wedding ring, nor did he own a cell phone like the one the intruder was seen holding.
- The details of the prior incident actually strengthened the argument that Gonzales was the intruder.
State v. Ruiz
K9 spontaneous sniff. I this case, the Utah Court of Appeals ruled a police K9 dog did not violate a suspect’s constitutional rights where officers did not cause the windows of Ruiz’s vehicle to be opened and did not encourage the K9 to spontaneously leap through the window into Ruiz’s car, unprompted by police, following the odor of a narcotic substance inside.
United States v. Sanchez
Reasonable suspicion to detain for questioning, probable cause to arrest for fleeing, and use of spontaneous statement. Sanchez is a convicted felon with a lengthy rap sheet. He was approached late at night by two officers who suspected him of attempting to break into a vehicle in a hotel parking lot. He was wearing a trench coat with a loaded gun in the pocket. After routine questioning, he was caught in a lie and fled. During the chase, his trench coat ended up on the ground after one of the officers unsuccessfully tased Sanchez, but Sanchez kept running. He was tackled and arrested by the officers. A loaded gun was found in his trench coat. Sanchez was charged with being a felon in possession. He filed a motion to suppress the gun, and the government filed a motion in limine to admit an incriminating statement Sanchez made after his arrest. The district court denied the motion to suppress and granted the motion to admit the incriminating statement.
The Tenth Circuit Court of Appeals affirmed both rulings. It concluded the officers had reasonable suspicion to believe Sanchez was involved in criminal activity based on the fact:
- The officers had recovered stolen vehicles from the hotel parking lot before.
- The officers learned from a license plate check that the vehicle they thought was stolen did not belong to the vehicle.
- The officers saw Sanchez pull into the hotel parking lot and back the vehicle he was driving into the parking space right by the vehicle they suspected was stolen.
- The officers saw Sanchez exit his vehicle, retrieve a toolbox, and crouch down by the driver’s side door of the allegedly stolen vehicle.
The court then concluded the officers had probable cause to arrest Sanchez for fleeing, reasoning the officers had reasonable suspicion Sanchez was engaged in criminal activity, and Sanchez knew the officers intended to detain him because one asked him to submit to a pat-down search.
The court additionally concluded Sanchez voluntarily abandoned his trench coat in a public place, which eliminated any reasonable expectation of privacy in its contents. Based on the above, the court confirmed the officers had reasonable suspicion to detain Sanchez, probable cause to arrest him, and probable cause to search his coat pocket without a warrant.
The court finally concluded that Sanchez’ statement after one officer warned the other of the gun in the trench coat, “That’s why I ran,” was not the result of custodial interrogation but was instead spontaneous. Therefore, it was not a custodial interrogation requiring Miranda warnings.
State v. Speights
Warrantless search under automobile exception. Responding to a 911 call reporting a home intruder, two officers saw a Ford Explorer that looked like it might be connected to the disturbance. One officer touched the hood to assess the temperature of the engine, and the other officer reached into the wheel well on two occasions. Both officers testified the engine felt hot. The defendant argued the officers’ touches of her vehicle constituted searches under the Fourth Amendment which she claimed violated United States v. Jones because they lacked probable cause to search her vehicle.
The Utah Supreme Court did not decide that question. Instead, it concluded the automobile warrantless search exception applied and, under that exception, the officers had probable cause to touch the wheel well. In reaching its decision, the court reminded that the standard for assessing probable cause under the automobile exception is not “whether the police have probable cause to believe the vehicle contains evidence of the crime with which the defendant is ultimately charged . . . [but] whether there is probable cause to believe the vehicle contains evidence of a crime.” The court explained that when the second officer touched inside the wheel well the second time, he had probable cause to believe that the Explorer was related to the 911 call reporting a disturbance of the peace, “given that the vehicle was recklessly parked close by the complainants’ house, it contained an open bottle of liquor on the driver’s floorboard, the driver’s door was latched but not fully closed, and it appeared to have been recently ‘parked’ because the interior light automatically turned off while the officers were there.” This, the court concluded, constituted probable cause to believe the Explorer would contain evidence of who was disturbing the peace.
United States v. Chavez
Warrantless search of safe in car trunk. A state trooper saw Chavez tailgating a semi-truck and also fail to properly signal when changing lanes. Chavez fled while the officer was conducting his traffic stop investigation, leading law enforcement on a high-speed chase “for sixty or so miles.” When the trooper stopped the chase by using his vehicle to stop Chavez’s car, he ordered him out of his car and searched it. During a search, the trooper found methamphetamine in a safe in the trunk after Chavez gave them the combination to the safe. Chavez was charged with drug offenses and moved to suppress the methamphetamine. The district court denied the motion, and Chavez appealed.
The Tenth Circuit Court of appeals affirmed the denial of Chavez’s motion to suppress concluding the trooper “had reasonable suspicion to stop Defendant based on his failure to use his turn signal in accordance with Utah law . . . .” It further concluded the trooper had probable cause to arrest Chavez and search his vehicle. First, it concluded the trooper’s request for a criminal history report from dispatch and his request for help from a K-9 unit was reasonable based on information the officer learned during the investigation that Chavez was driving a rental car with an expired rental agreement, his request to quickly end the stop and his “implausible description of his travel plans.” The court also rejected the argument that the trooper impermissibly extended the stop’s duration and scope by requested a dog sniff. It explained, “The dog sniff occurred before Trooper Gibbs received Defendant’s criminal-history report from dispatch. So the dog sniff did not unconstitutionally extend the stop’s duration and scope because it occurred while Trooper Gibbs properly awaited Defendant’s criminal-history report from dispatch—a task related to Trooper Gibbs’s traffic stop.”
Finally, the court ruled the trooper had probable cause to arrest Chavez for contraband under the automobile exception based on Chavez’s “flight, the dog alert, and prior criminal history [for drugs] . . . .”
United States v. Kendall
Vehicle search pursuant to impoundment. Officers pulled Kendall over for a non-working taillight. He initially fled but eventually pulled over. The officers arrested him and, during their on-scene investigation, discovered he did not have a valid license or insurance, the car he was driving was registered to someone else, and the license plate was registered to another car. The officers impounded the car and conducted an inventory search. During the search, they found methamphetamine and heroin underneath the center console and a stolen handgun tucked within a loose panel below the glove compartment. Kendall was charged with drug and gun crimes. He moved to suppress the evidence found during the inventory search, arguing it violated the Fourth Amendment. The district court denied the motion and Kendall appealed.
The Tenth Circuit Court of Appeals affirmed the district court’s ruling, concluding “the officers had a reasonable, non-pretextual, community-caretaker rationale for impoundment: securing an uninsured vehicle on the side of a public road with inadequate tail lights until a licensed driver with a legitimate connection to the vehicle could rectify those issues and drive the vehicle without endangering public safety.”
The Court also concluded the inventory search was reasonable and distinguishable from United State v. Lugo, 978 F.2d 631, 636 (10th Cir. 1992). It explained that in Lugo, the officer noticed a door panel was loose, but it was an area where things are not commonly stored, and there was no indication that things were being stored inside that particular door until the officer removed the speaker-vent cover and looked inside. However, in this case, the officer:
was searching the center console, a common place to store things, when he noticed the loose bottom panel. From what he observed—the loose panel and a plastic bag sticking out from under the panel—it was obvious that the area underneath the loose bottom panel was also being used to store things.
That, the court concluded, made it reasonable for the officer to look under the panel to inventory what was stored there.
It further held that, unlike the center-console search, the officer’s search of the interior panel
beneath the glove box could not be justified as an inventory search but was justified as an exercise of the officers’ community-caretaking function of “protecting officer and public safety by securing firearms stored in accessible places of an impounded vehicle.” How? The court explained that the officer had previously found an empty, concealed-carry handgun holster on the front passenger seat, which suggested a handgun was in the vehicle.
United States v. Malone
Whether officers unlawfully prolonged traffic stop. In this case, the Tenth Circuit Court of Appeals ruled officers did not unlawfully prolong a traffic stop, which led to the discovery of an unlawful firearm that occurred while they were waiting for the driver to find proof of insurance and vehicle registration. Much of the opinion is dedicated to analyzing whether the defendant waived the argument that an order to exit the car prolonged the stop. It then went on to assume for argument that the order to exit it was a detour, but concluded it did not prolong the stop because it occurred while the driver was still searching for the car registration and proof of insurance.
United States v. Tafuna
Warrantless stop and seizure. Officer did not detain suspect where he pulled near a parked car but “did not activate a siren, turn on his vehicle’s flashing red and blue lights, or issue any commands to the occupants of the parked car,” and “did not obstruct the car’s path of exit or otherwise impede Defendant’s movement.” The officer’s use of his car’s takedown lights to illuminate the parked car – as opposed to turning on flashing emergency lights – did not change that conclusion because it was not accompanied by other “coercive” behavior, “such as blocking a car in its parking space or issuing verbal commands . . . .”
Moreover, the consensual encounter did not change to a detention when the officer exited his car, approached the car on foot, and asked the occupants for the names and birth dates. “Officers – without any basis for suspecting criminal activity is afoot – may ‘approach an individual, ask a few questions, [and] ask to examine the individual’s identification’” unless they indicate in some manner that compliance is required. The fact he was in full uniform, with a visible firearm, and did not advise the defendant he had the right to terminate the encounter did not imply required compliance, particularly where he was the only officer on scene, and he did not touch anyone. There was no evidence he used intimidating language, spoke with an aggressive tone, or issued any verbal commands, and he did not retain any personal effects during the encounter.
In sum, there was nothing that would have communicated to a reasonable person that he was not free to leave. Therefore, the encounter was consensual, and no reasonable suspicion of criminal activity was required.
United States v. Woodard
Pretext search of car. In this case, the Tenth Circuit Court of Appeals confirmed that officers may not impound a car as a pretext for searching the car and reiterated the five factors used to determine whether an impoundment is a pretext for searching for evidence of a crime rather than to safeguard the car or its contents:
- Whether the car is on private or public property;
- Whether the property owner has been consulted;
- Whether an alternative to impoundment exists (especially the availability of someone else to drive the car);
- Whether the car is implicated in a crime; and
- Whether the driver or owner has consented to the impoundment.
The court found that the impoundment, in this case, was pretextual after a lengthy analysis of the five factors.
VDARE Foundation v. City of Colorado Springs
First Amendment violation by City’s mayor. The Tenth Circuit Court of appeals concluded statements by the mayor of the City of Colorado Springs did not violate a plaintiff organization’s First Amendment rights. The case’s lengthy and complicated decision is reported and summarized at
