Point
of
Law
Larry Welch
Director, KBI
Supreme Court Decisions posted on the Kansas Bureau of Investigations Website.
These court cases were reviewed by the director and he inserted his comments on the cases. Please read these cases to obtain valuable practical information. Click on a here to read the listed decisions.
U.S. v. Banks
U.S. Supreme Court • December 2, 2003
Reprinted from March 2004 edition of "Kansas Peace Officer".
(A unanimous Supreme Court holds that the Fourth Amendment and a federal statute were not violated by law enforcement officers when they forcibly entered a small apartment, in the execution of a federal search warrant for narcotics, only 15 to 20 seconds after "knocking and announcing:" This reverses a holding of the very reversible U.S. Ninth Circuit Court of Appeals.)
Lashawn Lowell Banks was in the shower of his very small one-bathroom, two-bedroom, North Las Vegas apartment at 2:00 in the afternoon when he heard a loud commotion at his front door. He emerged from the shower, dripping wet, covered with soap, and nude. (There goes any hope of a concealed carry charge.) The first thing he noticed, in addition to the significant draft, was that many law enforcement officers, many of them hooded, all armed, some with words like "FBI" and "POLICE" and "SWAT" on their attire, were dominating the small hallway between his bathroom and the front door. Then he noticed that some of the officers were holding a battering ram and that his front door was no longer vertical.
He was first forced to the floor and handcuffed. Then, still slippery, he was lifted up and placed, naked as a jailbird, as we used to say in western Kansas (maybe it was "jaybird," come to think of it) on a chair at the kitchen table.
Now, no doubt, he is starting to regret having 11 ounces of crack cocaine, three handguns, a drug scale, and $6,000 in cash in his tiny apartment. And, oh yeah, having sold crack to an undercover officer earlier.
After two agents had sat down to interrogate him at the table and the other officers searched the apartment, finding the drugs and guns he wasn't supposed to have, Banks was permitted to put on underwear (I presume with the handcuffs removed) and was then interviewed for approximately 45 minutes.
The results of that interrogation, and what Banks did or did not say, are not relevant in this appeal. Banks raised Miranda and Fifth and Sixth Amendment issues, but the district court, and even the Ninth Circuit Court, paid little attention to those concerns, dismissing Banks' arguments quickly. The sole issue here is a Fourth Amendment issue relating to the law enforcement entry into Banks' apartment.
What happened prior to the interruption of Banks' shower was that the joint search team of FBI agents and North Las Vegas police officers appeared at the front door and back door of the apartment with a search warrant. Officers followed the federal statutory (Title 18 U.S. Code 3109) "knock and announce" procedure by knocking loudly on the front door and announcing, "Police! Search warrant!" After 15 to 20 seconds, with no response from within, the armed SWAT officers made a forced entry into Banks' apartment.
Officers later testified that they had not heard any noises from within during the 15- to 20-second waiting period, and one officer at the back door even testified that all he heard was the loud knocking at the front door and the shouts of "Police! Search warrant!"
Banks complained that the police entry, only 15 to 20 seconds after the "knock and announce," violated the Fourth Amendment and the federal statute, and that, therefore, the evidence should be suppressed.
Basically, the defense argued that the evidence must be suppressed because the officers failed to wait a reasonable period of time before forcefully entering Banks' residence, search warrant or no search warrant. The defense claimed such a quick entry can only follow exigent circumstances or a refusal of admittance, after the officers announce their identity and purpose and demand entry.
The U.S. District Court denied Banks' motion to suppress. Banks, reluctantly, pled guilty to possession of a controlled substance with intent to distribute and also to being a drug user in possession of a firearm. He reserved his right to appeal, and he did appeal. The famous U.S. Court of Appeals for the Ninth Circuit ("pledge of allegiance-under God") reversed Banks' conviction, holding that there were no exigent circumstances in this situation and no refusal of admittance by Banks. There simply was no justification of the quick entry by law enforcement. The court emphasized there was no response of any kind by Banks, let alone a refusal of admittance.
"Our task is to determine what constitutes a reasonable waiting period before officers may infer that they have been denied admittance." (And, obviously, 15 to 20 seconds is not a reasonable waiting period.)
"In assessing the reasonableness of the duration of the officers' wait, we review all factors that an officer reasonably should consider in making the decision to enter without an affirmative denial. Those factors include, but are not limited to: (a) size of the residence; (b) location of the residence; (c) location of the officers in relation to the main living or sleeping areas of the residence; (d) time of day; (e) nature of the suspected offense; (f) evidence demonstrating the suspect's guilt; (g) suspect's prior convictions and, if any, the type of offense for which he was convicted; and (h) any other observations triggering the senses of the officers that reasonably would lead one to believe that immediate entry was necessary."
Here, in a wonderful opinion, the Big Court dismisses the Ninth Circuit's strange four-part scheme for "knock-and-announce" search warrant entries and upholds the Banks' entry and seizures. Rightfully worrying about destruction of the evidence, given Banks' indoor plumbing, and about officer safety, as the seconds ticked off, Justice Souter, writing for the unanimous court, said, "Though we agree ... that this call is a close one ... we think that after 15 or 20 seconds without a response, police could fairly suspect that cocaine would be gone if they were reticent any longer ... time will vary with the size of the establishment, perhaps five seconds to open a motel room door, or several minutes to move through a townhouse ... Police seeking a stolen piano may be able to spend more time to make sure they really need the battering ram." (Is this a wonderful country or what?)
"Absent exigency, the police must knock and receive an actual refusal or wait out the time necessary to infer one. But in a case like this, where the officers knocked and announced their presence, and forcibly entered after a reasonable suspicion of exigency had ripened, their entry satisfied (the statute) as well as the Fourth Amendment, even without refusal of admittance."
(Bottom line? And you can easily recite the Pledge of Allegiance in less than 15 to 20 seconds! Try it.)
Maryland v. Pringle
U.S. Supreme Court • December 15, 2003
Reprinted from March 2004 edition of "Kansas Peace Officer".
(In a unanimous decision, the Big Court rules that a police officer who obtained permission to search a car during a traffic stop, and who found cocaine in the back seat and cash in the glove compartment, had probable cause to arrest all three occupants of the car, including the front-seat passenger, and let God and the courts sort it out.)
Joseph Jermaine Pringle was a frontseat passenger in a car owned by, and driven by, his friend, Donte Carlos Partlow. Another friend, Otis Calvin Smith, was a back-seat passenger. It was 3:00 A.M., and they were in Baltimore County, Maryland, headed for Westminster, Maryland, for a party.
Officer Jeffrey Snyder of the Baltimore County Police Department, on, as we always say, routine patrol, stopped the car for a traffic violation. He asked Partlow for license and registration, and when Partlow opened the glove compartment to obtain those documents, the officer observed a large roll of cash therein. The officer said nothing about the money.
The officer ran a computer check on the car and driver. Nothing. He returned to the car, asked Partlow to step out, and issued him an oral warning for his driving deficiencies. He then inquired of Partlow whether or not he had "anything in the vehicle, any drugs, weapons, narcotics in the vehicle?" Partlow replied that he did not. Well then, the officer asked, could he search the vehicle? Partlow, then obviously intending to use the "TS" defense (Temporarily Stupid), gave permission to search his car.
Officer Snyder asked the defendant and Smith to step out of the car. He patted them down and then had all three sit on the curb while he searched the vehicle. (Meanwhile, the party was already starting, no doubt.) During the consensual search, Officer Snyder found $763 in the glove compartment and five baggies of cocaine in a backseat armrest.
The officer then asked all three who owned the money and coke. No answer. Then he told them he'd arrest all three if one didn't own up to ownership. None claimed ownership and, sure enough, all three were arrested and transported to the police station. (There goes the party.)
Finally, between 4:00 A.M. and 5:00 A.M., following a waiver of his Miranda rights, Pringle did the honorable thing. He gave oral and written confessions admitting the coke and money were his and that neither Partlow or Smith had known anything about the stuff. He explained he had intended to use the coke for sex at the party, not sell it. Partlow and Smith were released and never charged.
Pringle was convicted of possession with intent to distribute cocaine and possession of cocaine. He was sentenced to ten years, without possibility of parole. On appeal, he argued simply that there was no probable cause to arrest him. He did not complain of the search, acknowledging the owner driver’s consent was properly given. His contention was that his confession followed an illegal arrest and should have been suppressed.
The Court of Special Appeals for Baltimore County affirmed the conviction and upheld the arrest. But the Court of Appeals of Maryland reversed, holding there was not probable cause to arrest the defendant when he had not admitted ownership of the cocaine. Money in the glove compartment and drugs in the back seat didn't provide probable cause for his arrest. The Maryland state court explained, "Simply stated, a policy of arresting everyone until somebody confesses is constitutionally unacceptable." (Who wants to tell Detective Andy Sipowicz?)
Here the Big Court reverses the Maryland court and dismisses Pringle's "simply guilt-by-association" defense. "It is uncontested in the present case that the officer, upon recovering the five plastic baggies containing suspected cocaine, had probable cause to believe a felony had been committed ... The sole question is whether the officer had probable cause to believe that Pringle committed that crime.... We think it an entirely reasonable inference from these facts that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine. Thus a reasonable officer could conclude that there was probable cause to believe Pringle committed the crime of possession of cocaine, either solely or jointly... Pringle and his two companions were in a relatively small automobile (Nissan Maxima) ... a car passenger ... will often be engaged in a common enterprise with the driver and have the same interest in concealing the fruits or the evidence of their wrongdoing ... Here we think it was reasonable for the officer to infer a common enterprise among the three men. The quantity of drugs and cash in the car indicated the likelihood of drug dealing, an enterprise to which a dealer would be unlikely to admit an innocent person with the potential to furnish evidence against him."
(Bottom line? Gee, what if it had been a 12-passenger van with full occupancy?)
Illinois v. Lidster
U.S. Supreme Court • January 13, 2004
Reprinted from March 2004 edition of "Kansas Peace Officer".
(The Big Court, 6-3, reverses the Illinois Supreme Court and says there's a world of difference between a suspicionless checkpoint at which police stop vehicles to look for evidence of drug violations by those particular motorists, ruled unconstitutional in Indianapolis v. Edmond,
531 U.S. 32 (2000), and a brief, non-intrusive, information-seeking checkpoint, wherein police simply seek information regarding a previous crime most likely committed by others, ruled reasonable and constitutional herein.)In Lombard, Illinois, there was a fatal hit-and-run accident and the police were seeking the full-sized pickup truck, possibly a Ford Bronco, believed to be implicated in the accident. A 70year-old bicyclist had been struck and killed. Wisely, I thought, the police decided they would place an informational checkpoint at the precise point of the accident, exactly one week later. The time, midnight, coincided with people leaving work at a nearby U.S. Postal facility and an industrial park near the scene of the accident. Each motorist was stopped for ten to 15 seconds and given a prepared flyer reflecting information regarding the accident and the suspected vehicle, seeking the public's help and providing officers' names and phone numbers that could be called. Between six and 12 police vehicles, with flashing lights, participated in the checkpoint.
The checkpoint was neither advertised nor videotaped. Detective Ray Vasil was wearing an orange reflective vest with "police" thereon and standing 15 feet from the checkpoint. A line of cars formed at the checkpoint, and as each vehicle pulled up to Detective Vasil, he handed the informational flyer to the driver.
Everything went well until Robert S. Lidster, intoxicated and driving his Mazda minivan, almost hit our detective. So, with this motorist, Detective Vasil goes a bit further and asked for a driver's license and proof of insurance. Lidster's speech is slurred, and the detective smells alcohol on his breath. He is turned over to another officer, who administers a variety of sobriety tests. Lidster fails them all, is arrested for DUI, and convicted thereof.
An Illinois appellate court, in effect, says, "Not so fast," and reversed the conviction, holding that the checkpoint violated the Fourth Amendment and was contrary to what the U.S. Supreme Court said police could do with roadblocks or checkpoints in Indianapolis v. Edmond. The Illinois Supreme Court agreed the police were wrong and that Mr. Lidster was wronged.
The problem is that the Big Court, in Indianapolis v. Edmond, held that the Fourth Amendment's requirement of individualized suspicion for seizure does not allow police to conduct suspicionless roadblocks designed primarily to serve general interest in crime control. Or, as in Edmond, to look, randomly, for drug violators.
By the way, the Illinois Association of Chiefs of Police joined with the Illinois Attorney General in this appeal, urging the reversal of the Illinois Supreme Court and the approval of the roadblock, or checkpoint.
"The Illinois Supreme Court called the operation a roadblock. This was inaccurate. A roadblock is the complete blocking of a road in order to prevent any traffic from continuing on the path. It is a barricade or an obstruction across a road set up to prevent the escape or passage, as of a fugitive or enemy troops. What was done in this case was not a roadblock, as passage through the obstruction was possible after dealing with the authorities. It was a checkpoint. The complete blocking of passage makes a roadblock a more intrusive seizure than a checkpoint. Calling checkpoints roadblocks inaccurately prejudices them and should be avoided." (Quoted from the brief of the Criminal Justice Legal Foundation, who also joined with the state in this appeal.)
Now, at least, you know the difference between a roadblock and a checkpoint. Lidster, of course, challenged the lawfulness of his DUI arrest and conviction, arguing that the evidence had been obtained in violation of the Fourth Amendment. He based his defense on Indianapolis v. Edmond.
However, here the U.S. Supreme Court says that both Lidster and the Illinois Supreme Court are wrong and also very confused about the Edmond decision. The Court explained, "Edmond involved a checkpoint at which police stopped vehicles to look for evidence of drug crimes committed by occupants of those vehicles. After stopping a vehicle at the checkpoint, police would examine (from outside the vehicle) the vehicle's interior; they would walk a drug sniffing dog around the exterior; and, if they found sufficient evidence of drug (or other) crimes, they would arrest the vehicle's occupants. We found that police had set up this checkpoint primarily for general crime control purposes, i.e., to detect evidence of ordinary criminal wrongdoing. We noted that the stop was made without individualized suspicion. And we held that the Fourth Amendment forbids such a stop, in the absence of special circumstances."
But, heck, the Big Court holds here, "The checkpoint stop here differs significantly from that in Edmond. The stop's primary law enforcement purpose was not to determine whether a vehicle's occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others. The police expected the information elicited to help them apprehend, not the vehicle's occupants, but other individuals."
The Court liked that the stops were brief and that actual police contact with each driver lasted only seconds. No Fourth Amendment violation.
(Bottom line: Even Justice Stevens, in dissent, agreed that, "There is a valid and important distinction between seizing a person to determine whether she has committed a crime and seizing a person to ask whether she has any information about an unknown person who committed a crime a week earlier." No matter Lidster is a he.)
State of Kansas v. Crawford
Kansas
Supreme Court • April 18, 2003
Reprinted from September 2003 edition of "Kansas Peace Officer".
(Remember the decision by the Kansas Court
of Appeals in this matter, August 23, 2002, holding that Johnson County Deputy Sheriff Mark Leiker did not have reasonable suspicion enough, from an anonymous telephone call, to make a Terry stop of a potentially drunk and/or reckless motorist? Wrong! He did so, holds the Kansas Big Court.)It's approximately 2:00 P.M., and a warm August day in Johnson County, Kansas (birthplace of my two year old grandson, Harrison Kester Brown). Johnson County Deputy Sheriff Mark Leiker hears the dispatcher announce that an anonymous cell phone call has been received from a concerned motorist advising there's a "reckless" driver in a black Dodge Dakota pickup truck, with Oklahoma license plates, headed north from the county line on 169 Highway.
Since Deputy Leiker was already in close proximity, he positioned himself on 169 Highway about one mile north of the county line. Within two minutes, he observed a black Dodge Dakota pickup truck, Oklahoma license plate, pass him, headed north. He very quickly stopped the vehicle, without observing any reckless driving, or indeed, any apparent traffic violations.
The driver is William Alfred Crawford, Jr., well on his way to his third DUI offense, it would appear.
Crawford appeared intoxicated. He exited the pickup before being instructed to do so and swayed or staggered as he walked. He was forced to hold onto the truck bed railing and our deputy noticed a faint odor of alcohol. He also observed that Crawford's eyes were bloodshot and his clothes disheveled, as if he had been sleeping in them. Crawford failed three different field sobriety tests, the preliminary breath test, as well as the Intoxilyzer breath test (twice the legal limit). He's charged with DUI.
The issue became, since the officer observed no wrongdoing, did the anonymous call permit the stop of the vehicle, from which came the evidence for the DUI charge?
The district court and the Kansas Court of Appeals ruled for the defendant, holding there was no corroboration of the anonymous caller's allegations prior to the stop. And, therefore, the evidence of intoxication derived from the stop must be suppressed.
But here the Kansas Supreme Court vindicates Deputy Sheriff Leiker.
"The sole issue on appeal is whether the district court correctly ruled that the anonymous tip failed to provide an adequate basis to justify the stop and detention, requiring suppression of the evidence. More specifically, the question is whether a stop is legal when it is based upon an anonymous tip stating a vehicle's make, model, style, color, the state of origin of its license plate, highway location, and direction of travel, all of which was corroborated by the law enforcement officer before the stop and also stating the conclusory allegation that the vehicle was being driven recklessly, which the officer did not attempt to corroborate before the stop. We hold the district court erred in holding the stop was illegal. We therefore reverse the district court and the Court of Appeals and remand for trial."
The lower courts and the Kansas Supreme Court did agree that this decision turned on the interpretation of Terry v. Ohio, 392 U.S. 1 (1968), the creator of all reasonable suspicion law, and on a case already handled by the Kansas Supreme Court from Hays, Kansas, State v. Slater, 267 Kansas 694 (1999).
Based on Terry and Slater, the lower courts interpreted Crawford's circumstances one way. The Kansas Supreme Court interpreted them another way. The correct way.
In Slater, a Hays police officer on routine patrol was advised by the dispatcher that an anonymous telephone caller reported a "possible drunk driver" leaving Burger King in a black pickup bearing license plate HEK 477. The dispatcher had also run a 10-28 and informed the officer the license plate number came back to one Walter Slater, 2212 Downing, Hays. The officer proceeded to Burger King and, observing no such vehicle there, headed toward 2212 Downing. He saw the pickup a block from home and, without observing any signs of poor driving while following the pickup a block, stopped Slater. As he got out of his pickup, a beer can fell to the ground and he stumbled and staggered prior to arrest.
The Slater trial court, like the Crawford trial court, suppressed the evidence arising out of the stop and dismissed the charge, holding the anonymous tip did not constitute reasonable suspicion, under Terry, that a crime was being committed.
The Kansas Supreme Court in Slater, as here in Crawford, restored reason. In Slater, "... we held that the information given by the anonymous caller and the officer's corroboration of the description and license number of the vehicle before the investigatory stop was sufficiently reliable to provide the officer with a reasonable suspicion of criminal activity."
Moreover, "The touchstone of the Terry stop at issue in Slater and in the case at hand is reasonable suspicion of criminal activity ... Just as the drunk
driving alleged ... in Slater ... is a crime in Kansas ... so is the reckless driving alleged by the anonymous informant in the case at hand ... which caused the officer to stop the vehicle without corroboration."
Describing the two sets of circumstances as "remarkably similar," the Kansas Supreme Court reiterated its three-part test established in Slater to analyze a tip's reliability, and concluded Deputy Leiker, in the totality of circumstances, had sufficient basis for an investigatory stop ... "(1) the type of tip or informant involved; (2) the detail given about the observed criminal activity; and (3) whether the police officer's personal observations corroborate the information supplied in the tip."
(Bottom line: Now my grandson, Harrison Kester Brown, can, and will, move back to his birthplace. I'm not kidding.)
Chavez v. Martinez
U.S. Supreme Court • May 27, 2003
Reprinted from September 2003 edition of "Kansas Peace Officer".
(As this case worked its way toward the U.S. Supreme Court, it became, in my humble opinion, one of the most widely misunderstood, and/or mislabeled cases in years, by the media and some law enforcement observers. Hailed as a landmark Miranda case, with the very future of Miranda warnings at stake, the real issue was simply civil liability and the qualified immunity, or not, of a police officer following coercive interrogation of a suspect.)
One November night two police officers were investigating narcotics activity in a residential-area vacant lot in Oxnard, California. While questioning one individual, they heard a bicycle approaching. Officer Salinas ordered the bike rider, Oliverio Martinez, to stop, dismount, spread his legs and place his hands behind his head. Mr. Martinez complied.
During a protective pat-down frisk, the officer discovered a knife in the suspect's waistband. Officer Salinas alerted his partner, Officer Pena, and started to place handcuffs on Martinez. Officer Salinas later claimed that, at this point, Martinez pulled away from him. Martinez denies that he resisted. In any event, a struggle ensued between suspect Martinez and Officer Salinas.
Both officers testified that Martinez did not attempt to hit or kick them and that Officer Salinas struck the only blow. They claimed that Martinez drew Officer Salinas' gun and pointed it at them. Martinez said that he merely grabbed Officer Salinas' gun as the latter began drawing his weapon.
All three participants agree that Officer Salinas cried out, "He's got my gun:" Officer Pena then drew her weapon and fired several times. One round struck Martinez in the face, damaging his optic nerve and rendering him blind. Another round struck a vertebra, paralyzing his legs. Three more rounds struck one leg, in the knee joint area. The officers then handcuffed Martinez.
The patrol supervisor, Sergeant Chavez, with paramedics, arrived on the scene within minutes. He rode to the emergency room in the ambulance with Martinez.
As emergency room personnel treated Martinez, Sergeant Chavez commenced a 45-minute taped interview of the suspect, without the benefit of Miranda warnings.
The medical staff repeatedly requested the sergeant to leave the room. The tape demonstrates that the interviewer did leave several times, but always returned and resumed questioning. He turned the tape recorder off upon each departure and the actual recorded conversation was approximately ten minutes in length.
Martinez, throughout the interview, complained he was in pain, was choking, was dying and could not move his legs. He drifted in and out of consciousness. He actually said he was dying eight times, complained of pain 14 times, and two times said he did not want to talk anymore.
Sergeant Chavez finally left for good only when the medics moved Martinez out of the emergency room for a CAT scan.
Martinez survived and sued the city of Oxnard, the police chief, and Officers Salinas and Pena under Title 18, Section 1983, U.S. Code, alleging the arresting officers violated his constitutional rights by stopping him without probable cause and using excessive force. That lawsuit is another matter for a jury and does not concern us now.
What we're concerned with here is that Martinez also brought civil action against Sergeant Chavez alleging the sergeant violated his constitutional rights by subjecting him to a coercive interrogation while receiving critical medical care.
The district court denied Sergeant Chavez' defense of qualified immunity and granted summary judgment for Martinez on his claim that Chavez violated his 5th and 14th Amendment rights in the coercive interrogation. The U.S. Court of Appeals for the 9th Circuit affirmed that holding. Chavez appealed those rulings in this action.
In argument before the highest court on December 4, the attorney for Sergeant Chavez, joined by the U.S. Deputy Solicitor General, claimed that a coercive interrogation by police does not violate one's constitutional rights unless, and until, the resulting statements are actually introduced into evidence in court. And even if it does violate one's constitutional rights, the police officer enjoys qualified immunity unless his conduct shocks the conscience of a reasonable person, and/or he should have known the action was unconstitutional.
The attorney for Martinez argued the constitutional violation occurs at the time of the offense and does not have to wait for use of the statements in court and trial. And, he protested, of course Sergeant Chavez knew his coercive interrogation violated Martinez' constitutional rights. Therefore, he is liable and not entitled to qualified immunity.
"Res Ipsa Baloney," says the U.S. Supreme Court, May 27, 2003, to the argument of the attorney for Martinez. (I'm paraphrasing, roughly.)
"An officer is entitled to qualified immunity if his alleged conduct did not violate a constitutional right. "And the Court holds that "mere compulsive questioning" does not violate the Constitution. "Statements compelled by police interrogation may not be used against a defendant in a criminal case, but it is not until such use that the Self-Incrimination Clause (5thAmendment) is violated."
"Chavez's failure to read Miranda warnings to Martinez did not violate Martinez's constitutional rights and cannot be grounds for a civil action. And the absence of a criminal case in which Martinez was compelled to be a witness against himself defeats his core 5th Amendment Claim:"
(Bottom line: An important ruling, but not because of earth-shaking Miranda implications.)