SCM NEWS & OPINIONS

Government Entities, Case Law Update – Law Enforcement , October 2019

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

A.N. v. Syling

A.N., then sixteen, was arrested by an APD detective pursuant to an arrest warrant.  Defendants were officers or employees of the Alamogordo Police Department (APD) who were allegedly responsible for the public release of information (to the media and on (APD’s public Facebook page) regarding the arrest of A.N., including identifying A.N. by name, reporting the crime with which she had been charged, and publishing her booking photo.  New Mexico’s law provided that arrest and delinquency records relating to a child are confidential and that information from such records must not be disclosed directly or indirectly to the public.

A.N. and her mother brought this action against Defendants asserting the disclosure of A.N.’s name and the information concerning her arrest violated the state and federal law, including A.N.’s right to equal protection, and procedural and substantive due process and to equal protection under the United States and New Mexico Constitutions.  The district court denied Defendants’ motion to dismiss the 42 U.S.C. 1983 equal protection claim based on qualified immunity, holding “Plaintiffs sufficiently stated an equal protection claim because they alleged Defendants, intentionally and without a rational basis, differentiated between similarly situated juvenile arrestees, A.N. and other sixteen and seventeen-year-old arrestees and arrestees younger than sixteen, in deciding whether to publicly disclose information regarding their arrest and delinquency even though New Mexico law prohibits the disclosure of such information for all children under the age of eighteen.”

The Tenth Circuit Court of Appeals affirmed.  It ruled the law was clearly established that disclosing A.N.’s confidential information would violate Plaintiffs’ equal protection rights, “‘even though the very action in question has not previously been held unlawful.’”  (citations omitted).  It explained that the law involved in this case was not “extremely abstract or imprecise under the facts alleged here, but rather is relatively straightforward and not difficult to apply.”  It “put Defendants on notice in this case that they would violate A.N.’s right to equal protection under the law if they intentionally and without a rational basis differentiated between her and similarly situated juvenile arrestees in applying New Mexico’s laws against the disclosure of juvenile arrest and delinquency records” so that any reasonable official would have understood he or she was violating her civil rights.

 

Choate v. Huff

Choate’s boyfriend called 911 and reported Choate had been drinking, had fired a gun, and was possibly suicidal.  Multiple police officers responded, removed the boyfriend from the house and located Choate in bed, apparently naked and intoxicated or groggy.  The officers asked Choate about the gun and issued various commands, including inviting her to produce the gun, which they suspected was under the covers.  They did not physically restrain her because she was naked.  After more than four minutes, during which the officers repeatedly asked about the firearm, Choate stated, “It’s right here.”  Within a few seconds, two officers fired killing Choate.  Choate’s daughter filed a 42 U.S.C. § 1983 action against the officers, who filed a motion for summary judgment based on qualified immunity.  The district court denied the motion concluding a reasonable jury could disbelieve the officers’ testimony that Choate pointed a gun at them, which prompted them to fire.  The officers appealed.

The Tenth Circuit Court of Appeals affirmed the case as to two of the officers who fired but reversed and it as to the third who did not.  Plaintiff claimed that officer could be found liable on her excessive force claim “precisely because he did not use any force:  If he had appropriately handcuffed or otherwise restrained Ms. Choate soon after he entered the room . . . the situation could have been de-escalated, preventing events from evolving as they did.”  She also claimed the officer could be held liable for the other officers’ use of force because he demanded that she produce her gun, failed to inform her they were there to help her, and failed to ask her boyfriend more questions about her mental state.

The Tenth Circuit ruled the Plaintiff failed to identify a comparable case concluding similar conduct constituted a constitutional violation.  It explained, “Plaintiff has not identified any cases holding that an officer violates an individual’s constitutional right to be free from excessive force simply by failing to restrain her or to engage in the dialogue that a defense expert, with the benefit of hindsight, believes might have prevented another officer’s subsequent unannounced use of force.”

 

Evans v. Sandy City

The Sandy City Council adopted an ordinance making it illegal for any person “to sit or stand, in or on any unpaved median, or any median of less than 36 inches for any period of time.”  Plaintiff Evans received four citations for violating the ordinance.  He filed suit against the City and its officials under 42 U.S.C. 1983, alleging the ordinance was facially invalid because it violated the First Amendment right to free speech.  Evans also sought a preliminary injunction.  The district court denied Evans’ preliminary injunction and granted summary judgment in favor of the City concluding the ordinance was a valid time, place, or manner restriction on speech.  Evans appealed, arguing the district court incorrectly applied the time, place, or manner standard and wrongly granted summary judgment because the City did not satisfy its evidentiary burden.

The Tenth Circuit Court of Appeals affirmed.  It explained, the challenged ordinance was not a ban on panhandling or solicitation but a restriction on sitting or standing on narrow and unpaved medians.  First, the ordinance was content neutral because it did not draw content-based distinctions on its face but applied evenly to all who sit or stand on narrow or unpaved medians, regardless of the content of their message.  It was justified by specific public safety concerns involving accidents between pedestrians and vehicles.  Second, the ordinance was narrowly tailored to further the legitimate interest of public safety because it was limited only to those medians where it is unsafe to sit or stand.  Third, the ordinance left open many alternative channels for Evans to communicate, including paved medians wider than 36 inches, every city sidewalk, and every city park.

 

Lynch v Bd. Cty. Comm’rs of Muskogee

In this case, the Tenth Circuit Court of Appeal reversed summary judgment in favor of officers based on qualified immunity who applied pressure to a suspect’s back, lower body, and neck after his arms and legs were shackled, even though he was still resisting arrest.  The court also reversed concluding a reasonable jury could find excessive force where officers tasered the suspect while his hands and feet were shackled.

 

Myers v. Brewer

The sheriff’s office received a call reporting indicating Myers was in front of a bar with a shotgun.  Forty-one minutes later, several officers arrived on scene.  Myers had already gone home, put away his gun, and taken his dog for a walk, but officers began searching for him house-to-house.  An officer eventually spotted Myers in a backyard shed and shouted for him to come out with his hands in the air and to get on the ground.  Myers stood in the yard with empty hands at his sides.  After eight seconds, an officer shot him in the chest with a beanbag round fired from a 12-gauge shotgun from a distance of approximately six to eight feet.  Myers fell to his hands and knees, and collapsed face down on the ground. He was handcuffed and found covered with blood.  He ended up dying from his wounds.

Myers’s wife brought a civil rights action on behalf of her husband’s estate and their three minor children claiming the officers used excessive force in violation of the Fourth Amendment.  She also asserted various other claims.  The officers moved for dismissal based on qualified immunity, which the court denied as to the excessive force claim.  The Tenth Circuit Court of Appeals affirmed.

The court stated, “The circumstances here, as alleged in the complaint, are sufficient to indicate a Fourth Amendment violation.  There was no crime at issue, and although the police received a call that Mr. Myers was in front of a bar with a shotgun, there are no allegations that he was prohibited from possessing a shotgun in public.  Nor did he pose an immediate threat to the officers or anyone else – the officers did not arrive on scene for some forty-one minutes, and there are no allegations that Mr. Myers threatened anyone in the interim.  Indeed, the complaint avers that he went home, put away his gun, and took his dog for a walk. When the officers later encountered Mr. Myers, they ordered him out of the backyard shed and, “[w]ithin a few seconds . . . [he] was standing – unarmed – outside of the shed in the middle of the backyard . . . he was shot as he ‘stood in the yard, with empty hands at his sides.’”  (internal footnote omitted, first and second alterations in original).

State v. Apodaca

The Utah Supreme Court assessed the voluntariness of a confession and confirmed several longstanding rules.  First, “‘[t]he mere representation to a defendant by officers that they will make known to the prosecutor and to the court that [the defendant] cooperated with them’ is not a coercive promise.” (quoting State v. Strain, 779 P.2d 221, 225 (Utah 1989), alteration in original).  Second, the detective’s “statements that ‘it always look[s] better to cooperate’ and that he would ‘let the prosecution know’ about Apodaca’s cooperation” were not coercive “because the detectives repeatedly stated that they could not make promises or guarantees to Apodaca regarding his incarceration.” (quoting State v. Apodaca, 2018 UT App 131, ¶ 49, alteration in original).  Third, statements “obtained in violation of Miranda, are still admissible for impeachment purposes unless our totality of the circumstances review proves them to be coerced.”  Fourth, there was no evidence that “any cognitive impairment made him especially susceptible to the false friend technique” and “‘the detective’s offer to personally protect Apodaca was made after Apodaca had implicated himself . . . .’”  (quoting Apodaca, 2018 UT App 131, ¶ 54, alteration in original).  Fifth, the detective’s statement his purpose was not to “interrogate” the suspect but give him “the opportunity to tell me your side” and a general statement leading a suspect to believe that the government’s knowledge of his guilt is greater than it actually is are not sufficient to overbear a defendant’s will.  Sixth, the defendant was not isolated where he was questioned for three to four hours and asked only once to speak to his girlfriend.  Seventh, he was not denied needed medication because his statement he was going to need methadone in the morning was a request for future medication, not an immediate need.  Finally, the record did not show he was “especially susceptible to manipulation.”  He was “in constant negotiation with the detectives for a deal, and expressed on multiple occasions his awareness of his rights and of the paperwork that would be filed should he speak out against his accomplices. Even though Apodaca may not have any formal legal training, he appears throughout the record to have a detailed understanding of the criminal system and the rights that the system affords to him.”

 

State v. Evans

The Utah Court of appeals ruled that a trial court did not err in denying Evans’s motion to suppress DNA obtained from the forcible cheek swab, because the search warrant came with an authorization to use reasonable force, and the force used in this case was not unreasonable.  The Court stated, “we conclude that a validly issued search warrant carries with it an implicit authorization for the use of reasonable force, when necessary, in its execution. Even though the warrant in question here did not contain an express statement authorizing the use of reasonable force, such an authorization was implied in the issuance of the warrant, and officers did not need to return to the magistrate to obtain a second warrant containing specific instructions as to how it should be executed.”  However, it cautioned, “an authorization to use ‘reasonable force in the execution of a search warrant does not function as permission for officers to act however they please when executing such warrants.  The force used in executing warrants must, of course, be reasonable; indeed, ‘[e]ven when armed with a valid search warrant, law enforcement may violate a defendant’s Fourth Amendment rights if the manner in which the warrant is executed is unreasonable or unnecessarily harmful.’”  (citations omitted).

The court concluded the officers acted reasonably by handcuffing him, applying leg irons and a belly chain, and holding applying a control hold to forcibly access his mouth to perform the swab.  It analyzed the Graham v. Connor factors, and ultimately concluded the officers were justified in using this force because Evans was actively resisting (thrashing and kicking his arms and legs in an effort to resist the swab), the State had compelling interest in preserving the safety of the community by accurately identifying perpetrators of serious crimes.

 

State v. Perkins

A “concerned citizen” reported to an officer that Perkins’ girlfriend was using and selling drugs and had seen her selling methamphetamine to Perkins.  After locating the girlfriend, who admitted she had drugs in her car, the officer searched it and found small baggies containing crystal pieces that tested positive for methamphetamine.  When the officer questioned her, she admitted to selling meth to Perkins, whom she saw use it that morning (later changing her story to the prior week).  The officer accompanied her back to her residence and conducted a drug dog sniff of the common areas, as permitted by her probation agreement.  The dog alerted to narcotics in the bedroom used by Perkins and his sister.  The officer had a second officer locate and detain Perkins at his place of employment, which he did.  As soon as the drug sniff at the residence had concluded, the canine unit left for Perkins’s location with a third officer.  It took the third officer approximately twenty minutes to get there with the dog due to a combination of heavy snow on the roads and the distance between the residence and Perkins’s job site.  The drug dog alerted to narcotics in Perkins’s truck within five minutes of arriving.  The first officer started a warrant application on the way to the scene while another officer drove and electronically submitted it when he arrived.  When the officer did not receive an immediate response, he contacted the court and learned that the magistrate judge who was in charge of signing warrants that week was not available.  Therefore, he contacted two other magistrate judges, who had technological difficulties.  One was finally was able to review and approve the warrant.  The officer collected a urine sample from Perkins, which tested positive for methamphetamine, and a search of the truck led to the discovery of an assault rifle, which Perkins was prohibited from having as a restricted person.

Perkins moved to suppress the result of his urinalysis and the discovery of a firearm, arguing the officers did not have reasonable suspicion of recent criminal activity, making his detention, illegal.  He alternatively argued that the detention was unreasonably long.  The trial court denied the motion and Perkins appealed.

The Utah Court of Appeals first concluded the stop was a Terry stop requiring reasonable suspicion.  It went on to conclude that the combination of information from the concerned citizen, corroborated by information from the girlfriend, that Perkins had recently used methamphetamine, which was corroborated by his girlfriend who said she had consistently sold methamphetamine to Perkins and recently saw Perkins using methamphetamine, possibly that morning.  Moreover, the officers found drug paraphernalia, and a drug dog alerted to narcotics in a bedroom used by Perkins and his sister during a search of his residence.

The court then ruled that once the dog alerted to narcotics in his truck, the nature of the detention changed.  It broke that part of the encounter into two time periods: (1) the time between Perkins’s initial detention and the dog alert on the truck (Terry stop); and (2) the time between the dog alert on the truck, which established probable cause to search, and the execution of the search warrant (probable cause detention).  The court stated the thirty-six- to forty-six-minute delay until the commencement of the dog sniff was reasonable given the fact that the officers promptly requested a dog, the dog was still conducting a parallel investigation of the girlfriend at her house, which was a fair distance away, and the road conditions.  It also concluded the time between the drug dog alert on Perkins’s truck and the issuance of the warrant was not unreasonably lengthy for the same reasons, and because officers were working on the affidavit for the search warrant during the twenty-minute drive from the house to where Perkins was, the warrant application was submitted shortly after the officer arrived on the scene, and the officer had to make several calls to locate an available magistrate to ensure that the warrant would be promptly reviewed.

 

State v. Smith

Smith moved to suppress his murder confession claiming the Miranda warning – “The courts will appoint you a lawyer if you really need one . . . if it comes to that” – did not adequately inform him of his right to a lawyer during questioning.  The Utah Court of Appeals rejected the argument, reiterating the longstanding rule that “a statement indicating that counsel will be appointed at a future time will not be considered erroneous so long as the warnings as a whole ‘apprise the accused of his right to have an attorney present if he [chooses] to answer questions.’” (quoting Duckworth v. Eagan, 492 U.S. 195, 204-05 (1989)).  See also, State v. Strain, 779 P.2d 221, 223 (Utah 1989) (concluding statement ““If you cannot afford an attorney, you have the right to have an attorney appointed for you by the court at a later date” was sufficient.)

 

United States v. Gururle

Tommy Gurule was frisked during a routine traffic stop of a car in which he was a passenger.  When officers discovered a pistol, he was arrested and charged as a felon in possession of a firearm.  Gurule moved to suppress both the pistol and his subsequent confession as the products of an illegal search.  The district court granted his motion, concluding Gurule had been unlawfully detained during the traffic stop and the officers lacked the necessary reasonable suspicion to frisk him.

The Tenth Circuit reversed, concluding the officers did not violate the Fourth Amendment when they detained Gurule and the other occupants of the car.  The Court reiterated longstanding law that officers may order a passenger during a traffic stop and also detain passengers for the duration of the stop.  It also rejected Gurule’s argument that the officers unconstitutionally extended the traffic stop as against the vehicle’s driver.  It explained, “None of the vehicle’s occupants possessed a valid driver’s license, and the efforts on the part of law enforcement to help locate a licensed driver cannot be characterized as unconstitutionally extending this traffic stop.”

The Court also concluded the officers appropriately frisked Gurule.  It explained officers are authorized to conduct a limited protective search if they have an articulable and reasonable suspicion people they lawfully detain are armed and dangerous.  “Within the context of a traffic stop, this is true not only for the driver but also for any passengers.”  The officers here frisked Gurule only after they noticed an unusual bulge in Gurule’s right-front pocket.  It noted, “As the Supreme Court observed in Mimms, a visible and suspicious ‘bulge’ in a driver’s pocket may alone “permit[] the officer to conclude that [the suspect] was armed and thus posed a serious and present danger to the safety of the officer.’”  (alteration in original).  Moreover, the driver admitted she was the subject of at least one outstanding warrant for theft and the vehicle’s backseat contained a great deal of property, the combination of which “could reasonably lead officers to conclude they should exercise special caution in conducting the search, given the possibility that criminal activity was once again afoot.”  Additionally, the stop transpired at night, the parking lot where the stop occurred was dark, there was an unlighted field just beyond where the vehicles had stopped, and drug activity and property crimes regularly occurred in the area.

 

United States v. Torres

In this factually complex case, the Tenth Circuit Court of Appeals reaffirmed some helpful principles relating to reasonable suspicion during a traffic stop.  First, it explained there is no “broad rule prohibiting officers from seeking consent to search while they retained the defendant’s papers, unless they are otherwise authorized to search.”  It distinguished another case where it found no consent, and thus a constitutional violation, explaining, “the officer had violated the defendant’s constitutional rights before the defendant consented to the search by unlawfully detaining him and concluded that the prior constitutional violation tainted the defendant’s consent.”  (emphasis added).

Second, quoting from the earlier case where a constitutional violation was found before consent was given, it cautioned “where the dashboard VIN plate is readable from outside the passenger compartment, that VIN matches the VIN listed on the registration, and there are no signs the plate has been tampered with, there is insufficient cause for an officer to extend the scope of a detention by entering a vehicle’s passenger compartment for the purpose of further examining any VIN.”

Third, it listed several circumstances that, taken together, provided the officer with reasonable suspicion of criminal activity sufficient to extend the duration of a traffic stop:

(i) a thirty-hour round trip car drive for a two-day vacation in a city with no discernible tourist attractions; (ii) Torres’ rapid rate of travel from California to New Mexico; (iii) Torres’ nervousness; (iv) Torres’ and Guerra’s lack of hotel accommodations for the coming evening; (v) Guerra’s lack of knowledge where she and Torres were heading; and (vi) an overpowering smell of air freshener . . . .

It made particular note of unusual rather than “run-of-the-mill nervousness,” which it found based on the following behavior:  fidgety, awkward comments, extreme sweating despite cold weather, shaking, and an increase in nervousness during the encounter.

 

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Heather S. White