SCM NEWS & OPINIONS

Government Entities, Case Law Updates – Law Enforcement, April 2020

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

 

U.S. v. Jackson – 10th Circuit

Garryn Jackson unsuccessfully challenged his drug and firearm charges, arguing officers lacked probable cause for his arrest and that his firearm, which was recovered at the scene, had not been voluntarily abandoned.

Jackson was arrested in downtown Denver after an altercation with police officers. During an operation in a high-crime area of Denver involving undercover informants, officers observed Jackson huddle with an informant posing as a buyer and another individual who appeared homeless. Once the informant departed, officers watched Jackson and the homeless man exchange something hand-to-hand. They then received confirmation the informant had purchased what appeared to be crack cocaine in the exchange. Jackson’s description was radioed to an arrest team along with orders to make contact with him. After being confronted by officers, Jackson fled on foot. A wrestle ensued, and Jackson’s gun fell to the street. Officers heard a “clunk sound” as well as someone yell “gun”. Jackson broke free and continued his flight until he was subsequently located, arrested, and searched. On Jackson’s person, officers recovered crack cocaine, cocaine base, and methamphetamine as well as pre-recorded bills that the informant used in the transaction.

Jackson argued that officers lacked probable cause for his arrest. The District Court found (and the 10th Circuit affirmed) that the following facts supported the officers’ probable cause for Jackson’s arrest: 1) the area in question was known as a drug-dealing hotspot; 2) homeless individuals were often used as middlemen during drug transactions; 3) an informant had been sent to the area with the intent to purchase drugs; 4) the informant had made contact with the homeless man, 5) the informant and homeless man huddled together with Jackson in a relatively private setting; 6) after the informant left the area, Jackson and the homeless man huddled again and appeared to make an exchange; and 7) after the interaction, the informant gave a signal that he had just purchased drugs. The court also found that the collective knowledge doctrine justified the officers’ combined probable cause for arresting Jackson.

Finally, the court found that because Jackson would have heard the “clunk sound” of his gun hitting the ground as well as the shout of “gun” and then again proceeded to flee on foot, he consciously and voluntarily abandoned his firearm. However, the court noted that because Jackson’s search and seizure was justified by probable cause, whether the gun had been abandoned was irrelevant.

 

Kalbaugh v. Jones – 10th Circuit

Plaintiff Wayne Kalbaugh successfully appealed the district court’s summary judgment determining that police did not use excessive force in his detention.

Failing to yield for a routine traffic stop, Kalbaugh led Oklahoma City police on a prolonged car chase. Eventually cornered, Kalbaugh exited his vehicle and fled on foot. During the foot pursuit, Kalbaugh dropped his three firearms and kept his hands high in the air to “show everyone he was of no threat, and that he wanted to peacefully surrender.” He told police he ran because he thought he “heard them yelling to shoot him.” After being brought to the ground by a civilian bystander, Kalbaugh was repeatedly struck by officers until he was subdued and detained. Kalbaugh claims that he was not resisting but was trying to lie down with his hands outstretched, thereby making the use of police force unnecessary and excessive.  A distant helicopter news crew captured most of the events, but a clear view of Kalbaugh’s detention was blocked by the officers’ bodies.

When determining whether a particular use of force is reasonable, courts consider “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Here, the 10th Circuit held that although the crimes committed by Kalbaugh—evading police at high speeds, carrying weapons on his person, and running from arresting officers—were unquestionably significant, the video record of the arrest was blurry and obstructed. This ambiguity created a dispute of material fact which was insufficient to reject Kalbaugh’s version of events at the summary judgment stage. A jury would be required to determine these fact issues.

 

State v. Hatchett – Utah Court of Appeals

The Utah Court of Appeals affirmed Ronald Hatchett’s two convictions for enticement of a minor. The court disagreed that Hatchett had been entrapped by police during an undercover operation where police posed as a minor.

Hatchett posted an advertisement to Craigslist titled “Dad looking for Son” wherein he described himself as seeking an “18-25 year old guy”. Police responded to Hatchett’s post as “Cade”, a 13-year old boy, to determine if Hatchett intended to commit sexual acts with a minor. Throughout their communications, police never broached the subject of sexual relations and only twice initiated contact with Hatchett. On the other hand, Hatchett was persistent in making contact (16 text messages and 3 phone conversations) and discussing proposed sexual acts with “Cade”, especially after he learned that Cade was only 13.

Utah law provides for the affirmative defense of entrapment when police create “a substantial risk that the offense would be committed by one not otherwise ready to commit it. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.” In upholding Hatchett’s convictions, the court held that police did not improperly induce Hatchett to commit a crime, but rather merely provided an opportunity for him to do so. The court noted that it was important that the police had been “specifically trained not to raise the subject of sex first” when contacting a potential sex offender. Finally, the court found that Hatchett’s advertised interest in a sexual relationship with an “18-25 year old guy” provided reasonable suspicion for police to initiate contact with him as an undercover operative.

 

State v. Hernandez – Utah Court of Appeals

The Utah Court of Appeals reversed the dismissal of Omar Hernandez’s charges for patronizing a prostitute who was actually an undercover detective. Hernandez asserted a defense of entrapment, arguing that an “attractive” detective improperly induced him to commit a crime he was not “otherwise ready to commit”.

In June 2018, Hernandez pulled into a McDonald’s parking lot—a known location for men to seek prostitutes—and was shortly thereafter approached by an undercover detective. Hernandez responded affirmatively to the detective’s inquiry asking if he was “looking for a date”—lingo used to offer prostitution services. Hernandez immediately invited the detective into his car, but the detective instead began bartering price and discussed other specifics of their transaction, including the nature of the sexual acts Hernandez was interested in and whether he had a condom. Hernandez was arrested shortly after arriving at the location where the detective had designated to consummate the deal.

Utah law provides for the affirmative defense of entrapment when police create “a substantial risk that the offense would be committed by one not otherwise ready to commit it. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.” Utah courts “have previously identified extreme pleas of desperate illness; appeals to sympathy, pity, or close personal relationships; offers of inordinate monetary gain; and excessive or persistent pressure as methods that create a substantial risk of inducing criminal conduct.”

Here, the Court of Appeals found that neither the detective’s mere attractiveness nor her near-immediate approach to Hernandez upon his arrival in the parking lot created a basis for entrapment as a matter of law. Hernandez “expressed interest [in committing a crime] without impermissible prompting” from the detective. His argument that “a significant number of people” could be induced to patronize a prostitute under the circumstances was insufficient here to find entrapment as a matter of law. The court determined that a jury, not a judge, must decide whether Hernandez’ entrapment defense is valid.

 

Cochegrus v. Herriman City – Utah Supreme Court

Plaintiff Candice Cochegrus successfully appealed a summary judgment against her in a negligence lawsuit. Cochegrus sued Herriman City, a homeowners association, and a maintenance company after she was injured tripping on a sharp metal rod protruding from a park strip.

The District Court determined Cochegrus failed to produce evidence showing that the city had constructive knowledge—or should have known—of the dangerous condition. The Supreme Court reversed, finding the facts demonstrated the rod “likely presented a hazard for some time.” For example, 1) the rod was “securely fastened in the ground”—its removal required the use of a circulating saw; 2) the rod appeared “rusted” or “oxidized”; and 3) the rod had been “nicked with a metal blade like that of a lawnmower” and some of the nicks were “not really fresh”.

Furthermore, in determining whether the City had constructive notice of the rod, the court considered “evidence relevant to the condition’s noticeability, such as its prominence, visibility, and location.” The court found the rod extended “five inches above the grass”. The dark metal rod would have clearly contrasted against the surrounding green grass. In sum, these facts produced enough evidence to preclude summary judgment for the defendants.

Finally, the court held that a city ordinance requiring all property owners to “repair and maintain in good condition all park strips” also applied to the homeowners association and maintenance company that kept up the area surrounding the rod. Accordingly, these entities also had a duty to exercise reasonable care in addressing the rod’s unsafe condition. While they are not required to necessarily remove the rod, “they could have notified Herriman City of the hazard or otherwise taken action to warn unwitting pedestrians of the danger”.

 

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Heather S. White