This page contains information from State and Federal Court Decisions and Other legal information of interest to law enforcement.
NOTICE: The owner of this website is not an attorney. Nothing on this website should be interpreted to be a legal opinion by the owner. The intent is to share information resources provided through Court Cases or other legal authorities.
Supreme Court rules public officials can sometimes be sued for blocking critics on social media Associated Press article March 15Justice Amy Coney Barrett, writing for the court, said that officials who use personal accounts to make official statements may not be free to delete comments about those statements or block critics altogether. On the other hand, Barrett wrote, “State officials have private lives and their own constitutional rights.” Read the full story at this link Court Opinions: Lindke v. Freed and O'Conner-Ratcliff v. Garner
KSA 8-1547, Starting Parked Vehicle: Kansas Court of Appeals Garner v KDOR12/23/22 This appeal overturned the suspension of a driver's license from a DUI administrative hearing. The court overturned the suspension based on the facts of the case and the elements of the violation of Unsafe Starting a Parked Vehicle. The facts of the case point to Garner starting from a stop at a controlled intersection spinning his tires. KSA 8-1547 requires a driver leaving a "stopped, standing or parked" position to make such movement of the vehicle to be "made with reasonable safety." The court ruled no evidence was presented to support the action of Garner was done in an unsafe manner. Thus, they ruled the initial stop was without reason to believe a violation had occurred and a violation of the Fourth Amendment, and that makes the discovery of Garner's alleged intoxication inadmissible.
The case does not address how KSA 8-1565 would have applied in this case, since it was not presented as the reason for the stop. KSA 8-1565 can be violated by an "exhibition of speed or acceleration." Perhaps the wrong statute was given by the officers for the stop, perhaps it wouldn't have made any difference to the court. We won't ever know. Also note the use of Standard Traffic Ordinance (for cities) would produce the same result since KSA 8-1547 is the same as STO 53 and KSA 8-1565 is the same as STO 37.
In the ruling, the court indicated that to support a violation there must be testimony or evidence presented that the spinning of the tires occurred in an unsafe manner or in an unsafe circumstance. The articulation of the safety factor beyond the spinning of the tires is required to prove a violation of KSA 8-1547.
It is unknown at the time of this posting if the prosecution will appeal this decision to the supreme court.
US Supreme Court Decision See the July 2022 edition of the Federal Law Enforcement Informer summarizing Vega v. Tekoh regarding federal lawsuit against an officer for failing to advise a suspect or their Miranda Rights. The court ruled Miranda and subsequent cases made it clear that Miranda imposed a set of “prophylactic rules,” that while “constitutionally based,” are rules, nonetheless. The Court added that at no point in Miranda “did the Court state that a violation of its new rules constituted a violation of the Fifth Amendment right against compelled self-incrimination. Instead, it claimed only that those rules were needed to safeguard that right during custodial interrogation.” Consequently, the Court reversed the Ninth Circuit Court of Appeals, and held that a violation of Miranda was not itself a violation of the Fifth Amendment right against self-incrimination; therefore, such a violation did not constitute “the deprivation of [a] right . . . secured by the Constitution.” Additionally, the Court saw no justification for expanding Miranda to confer a right to sue under §1983.
DUI Case from Kansas Supreme Court:State vs Myer 12/3/21 The Kansas Supreme Court unanimously upheld a 2018 change to state law eliminating an “identical-to-or-narrower-than” test for using prior out-of-state DUI convictions in determining severity levels and sentencing for a DUI charge. The amended law clarifies prior convictions count even if the law in the other state (or even in a Kansas municipality) is broader than the Kansas DUI law. ". . .the Legislature intended courts to count as prior convictions those out-of-state offenses comparable to Kansas' DUI statute in title, elements, and prohibited conduct, even if the elements of the out-of-state crime are broader."
City of Tahlequah v. Bond, 2021 U.S. LEXIS 5310 (Oct. 18, 2021) In this case, Officers Girdner and Vick, by contrast, engaged in a conversation with Rollice, followed him into a garage at a distance of 6-10 feet, and did not yell until after he picked up a hammer. The Court held that the officers were entitled to qualified immunity, as the facts from Allen were so dramatically different from the facts here, they did not clearly establish that the officers’ use of force in this case was unlawful.
Tenth Circuit Case Law: From The Federal Law Enforcement Informer October 2021 U.S. v. Kendall: In sum, the officers’ search of Kendall’s vehicle was reasonable under the Fourth Amendment because it was made pursuant to standard police procedures and for the purposes of protecting the car and its contents and the safety of the officers and the general public.
Point of Law: Detention After Finding No PC Police Magazine 8/11/21 The problem in this case arises shortly after a Florida OUI arrestee arrived at the booking facility and blew a .00. Which brings up two important concerns. First, what is your agency’s practice with regard to the release of an arrestee once it is determined that the arrest may be faulty? Second, what procedures do you have in place to ensure your policies meet constitutional muster?
United States Supreme Court Source: FLETC The Informer July 2021 Lombardo v. City of St. Louis, 141 S. Ct. 2239 (2021) City of St. Louis, Missouri police officers arrested Nicholas Gilbert for trespassing in a condemned building and failing to appear in court for a traffic ticket. Officers brought Gilbert to the St. Louis Metropolitan Police Department’s central station and placed him in a holding cell. At some point, an officer saw Gilbert tie a piece of clothing around the bars of his cell and put it around his neck, in an apparent attempt to hang himself. Three officers responded and entered Gilbert’s cell. One grabbed Gilbert’s wrist to handcuff him, but Gilbert evaded the officer and began to struggle. The three officers brought Gilbert, who was 5’3” and 160 pounds, down to a kneeling position over a concrete bench in the cell and handcuffed his arms behind his back. Gilbert reared back, kicking the officers and hitting his head on the bench. After Gilbert kicked one of the officers in the groin, they called for more help and leg shackles. While Gilbert continued to struggle, two officers shackled his legs together.
Emergency medical services personnel were phoned for assistance. Several more officers responded. They relieved two of the original three officers, leaving six officers in the cell with Gilbert, who was now handcuffed and in leg irons. The officers moved Gilbert to a prone position, face down on the floor. Three officers held Gilbert’s limbs down at the shoulders, biceps, and legs. At least one other placed pressure on Gilbert’s back and torso. Gilbert tried to raise his chest, saying, “It hurts. Stop.” After 15 minutes of struggling in this position, Gilbert’s breathing became abnormal and he stopped moving. The officers rolled Gilbert onto his side and then his back to check for a pulse. Finding none, they performed chest compressions and rescue breathing. An ambulance eventually transported Gilbert to the hospital, where he was pronounced dead.
Gilbert’s parents (Plaintiffs) sued, alleging that the officers had used excessive force against him. The district court granted summary judgment in favor of the officers, concluding that they were entitled to qualified immunity because they did not violate a constitutional right that was clearly established at the time of the incident. On appeal, the Eighth Circuit affirmed the judgment of the district court, holding that the officers did not apply unconstitutionally excessive force against Gilbert. The Plaintiffs appealed and the Supreme Court agreed to hear the case.
In Graham v. Connor, the Supreme Court held that to determine if a police officer used excessive force, courts will ask “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them.” The court added that this inquiry “requires careful attention to the facts and circumstances of each particular case.” Citing its decision in Kingsley v. Hendrickson, the Court found that those circumstances include: 1) the relationship between the need for the use of force and the amount of force used; 2) the extent of the plaintiff’s injury; 3) any effort made by the officer to temper or to limit the amount of force; 4) the severity of the security problem at issue; 5) the threat reasonably perceived by the officer; and 6) whether the plaintiff was actively resisting.”
In this case, the Court found that the Eighth Circuit incorrectly characterized as “insignificant” circumstances that could potentially be important under Kingsley, including that Gilbert was already handcuffed and leg shackled when officers moved him to the prone position and that officers kept him in that position for fifteen minutes.
The Court commented that such details could matter when deciding whether the officers were entitled to qualified immunity. For example, the evidence presented in the district court showed that officers placed pressure on Gilbert’s back even though their department instructs its officers that pressing down on the back of a prone subject can cause suffocation. In addition, it was established that well-known police guidance recommends that officers get a subject off his stomach as soon as he is handcuffed because of that risk. The guidance further indicates that the struggles of a prone suspect may be due to oxygen deficiency, rather than a desire to disobey officers’ commands.
The Court concluded that such evidence, when considered alongside the duration of the restraint and the fact that Gilbert was handcuffed and leg shackled at the time, may be pertinent to: 1) the relationship between the need for the use of force and the amount of force used; 2) the security problem at issue; and 3) the threat, to both Gilbert and others, reasonably perceived by the officers. The Court concluded by stating that it “expressed no view as to whether the officers used unconstitutionally excessive force or, if they did, whether Gilbert’s right to be free of such force in these circumstances was clearly established at the time of his death.” Instead, the Court remanded the case to give the Eighth Circuit Court of Appeals an opportunity to consider the facts and circumstances it failed to consider in its previous analysis, and then determine if the officers were entitled to qualified immunity.
Supreme Court Rules Tribal Police Can Detain Non-Natives who Violate State or Federal Laws Police Magazine, Point of Law 6/9/21 Tribal police have the authority to detain non-Natives traveling through reservation land if the officer has a reasonable belief that the suspect violated state or federal law, the Supreme Court unanimously ruled. See the Court Syllabus at this link. Held: A tribal police officer has authority to detain temporarily and to search non-Indian persons traveling on public rights-of-way running through a reservation for potential violations of state or federal law.
US Supreme Court Reinstates Law Suit Against St. Louis Officers in Excessive Use of Force Case LOMBARDO v. ST. LOUIS Per CuriamDissent [Alito] From the ruling: "Here, for example, record evidence (viewed in the light most favorable to Gilbert’s parents) shows that officers placed pressure on Gilbert’s back even though St. Louis instructs its officers that pressing down on the back of a prone subject can cause suffocation. The evidentiary record also includes well-known police guidance recommending that officers get a subject off his stomach as soon as he is handcuffed because of that risk. The guidance further indicates that the struggles of a prone suspect may be due to oxygen deficiency, rather than a desire to disobey officers’ commands. Such evidence, when considered alongside the duration of the restraint and the fact that Gilbert was handcuffed and leg shackled at the time, may be pertinent to the relationship between the need for the use of force and the amount of force used, the security problem at issue, and the threat—to both Gilbert and others—reasonably perceived by the officers. Having either failed to analyze such evidence or characterized it as insignificant, the court’s opinion could be read to treat Gilbert’s “ongoing resistance” as controlling as a matter of law.3Id., at 1014. Such a per se rule would contravene the careful, context-specific analysis required by this Court’s excessive force precedent. We express no view as to whether the officers used unconstitutionally excessive force or, if they did, whether Gilbert’s right to be free of such force in these circumstances was clearly established at the time of his death. We instead grant the petition for certiorari, vacate the judgment of the Eighth Circuit, and remand the case to give the court the opportunity to employ an inquiry that clearly attends to the facts and circumstances in answering those questions in the first instance."
Supreme Court limits prosecutors’ use of anti-hacking law 6/4/21 Conservative and liberal justices joined to vote 6-3 to overturn the conviction of a police sergeant who used a work database to run a license plate search in exchange for money. The justices ruled prosecutors had overreached in using the federal Computer Fraud and Abuse Act to charge him. The case is important guidance in narrowing the scope of the law.
Important US Supreme Court Decision 5/17/21 Caniglia v. Strom "The question today is whether Cady’s [Cady v. Dombrowski, 413 U. S. 433 (1973)] acknowledgment of these “caretaking”duties creates a standalone doctrine that justifies warrant-less searches and seizures in the home. It does not." We will wait for legal analysis of the decision, but clearly what officers can do in a care taking situation absent exigent circumstances has changed. See the FLETC Informercase summary at this link. See LII bulletin on the decision at this link. See ruling at this link.
Two State Appellate Court Decisions of Interest 5/3/21 See more information on the KPOA Website, Point of Law Page. State v. Arrizabalaga The Kansas Supreme Court has recently agreed with the State and reversed the District Court and Appeals Court decision an officer “was not diligently and reasonably pursuing the purpose of the stop” while he awaited the drug dog. The Kansas Supreme Court ruled “if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop.” Second, “[i]n evaluating the reasonableness of a stop, we consider what the police in fact do and whether the officers acted reasonably under the totality of the circumstances. The Court of Appeals should have Focused solely on the 24 minute segment of time between withdrawal of consent and the arrival of the drug dog: “[the officer] detained Arrizabalaga and his passenger for no longer than was necessary to get a drug dog to the scene to quickly confirm or dispel his reasonable suspicions. Under the circumstances existing that night . . . waiting 24 minutes for a fellow officer to arrive with a drug dog was reasonable and diligent . . . [w]e agree with the dissent that the panel majority engaged in post hoc second guessing of police conduct, imagining what other different investigative approaches might have accomplished." State v. Cash After a recitation of the current law concerning car stop mission limitations and reasonable suspicion the court ruling stated: “Yet these limitations do not mean that police must perform their duties with a blind eye. When a detainee’s responses and the surrounding circumstances give rise to an objectively reasonable and articulable suspicion that criminal activity is occurring during a traffic stop, an officer can broaden his or her inquiry to satisfy those suspicions . . .The reasonable suspicion analysis requires use of an objective standard based on the totality of the circumstances, not a subjective standard based on the detaining officer’s personal belief . . . So the relevant question for the district court at a suppression hearing is whether the facts presented to the officer—facts to which the officer must testify with particularity—give rise to an objective basis for suspecting criminal activity when viewed under the totality of the circumstances standard . . . [A]n officer is not required to neatly package the reasonable suspicion factors in a single succinct answer; the court is required to consider ‘the totality of the circumstances, all facts and inferences, [and] not a select few . . . Reasonable suspicion is a lower standard than probable cause. What is reasonable depends on the totality of the circumstances in the view of a trained law enforcement officer. The totality of the circumstances standard allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them.”
Shooting at Moving Vehicles – Orn v. City of Tacoma DLG Learning Center 4/27/21 Even though a vehicle shooting incident is highly dependent on the individual facts of that particular case, I continually hear from officers that the Supreme Court has clearly stated that officers can shoot at a moving vehicle; nothing could be farther from the truth. The two precedent cases from the United States Supreme Court are the Plumhoff v. Rickard case in 2014 and the Mullenix v. Luna case in 2015.
Stormont-Vail v. Board of County Commissioners II 12/11/20 The Court said that “[i]n a coordinated police action involving multiple law enforcement agencies, the agency ‘with operational control’ has the obligation under K.S.A. 22-4612 to pay for medical treatment requested during the action for an injured person taken into custody . . . [s]o if the response team acted in something other than a ‘willy-nilly exercise’ . . . then the test for operational control is simply this: Who was ‘the captain of the team?’” See more information on the KPOA Website, Point of Law Page.
DLG Learning Center Articles on Qualified Immunity Posted 11/15/20 Qualified Immunity, Deadly Use of Force: Cole v Hutchins This case highlights the important role that all of the facts play in a court’s legal calculation and an important operational consideration for your agency: it is necessary to have a plan in place that allows officers to change and reevaluate the use of force throughout an incident. Especially in today’s age of video recording and all eyes on our officers, we must be vigilant in assessing and reassessing force throughout an incident. What may be a reasonable force consideration at one point during the incident may become an unreasonable option as the incident de-escalates or if the officer or citizens surrounding the area are no longer in danger. Use of Force: Officer Involved Shooting – Goffin v. Ashcraft A case that focuses on an Officer-Involved-Shooting in Warren, Arkansas and deals with the shooting of a suspect who, unbeknownst to the officer, was not in possession of a handgun at the time he was shot. Civil Use of Force – O’Brien v Town of Bellingham A Civil case out of Massachusetts where the trial court and ultimately, the 1st Circuit, looked at the facts and circumstances involved in O’Brien’s arrest and subsequent booking and determined that the officers were entitled to Summary Judgment and dismissed the case. Prior to filing this civil claim O’Brien pled guilty to a number of criminal charges including assault and battery on a police officer, resisting arrest, and malicious destruction of property. Deadly Force Pursuit & Qualified Immunity: Monzon v. City of Murrieta As we navigate through this difficult time, we know that one of our basic liability protections, qualified immunity, is under siege on all fronts, at both the state and federal levels (for more on Qualified Immunity see Parts One, Two, and Three from our three part Qualified Immunity Series). Interestingly, today’s case upholds the protections afforded by Qualified Immunity and comes from, of all places, the 9th Circuit! Qualified Immunity – What Every Officer Needs To Know: Part One History of How Qualified Immunity Came to Be As I watch what is occurring across the Country I am confused. I have practiced law for nineteen years. Qualified Immunity – What Every Officer Needs To Know: Part Two The Law of Qualified Immunity and Due Process To fully understand qualified immunity, we need to discuss why qualified immunity is important to the judicial system and taxpayer dollars. Qualified Immunity – What Every Officer Needs To Know: Part Three Part Three – What the Public Needs to Know So, what is qualified immunity? What does it mean to society as a whole? And what should law enforcement officers tell the public when it comes to qualified immunity?
The Ever-Complicated Chokehold & Qualified Immunity: Tuuamalemalo v. Greene DLG Learning Center 7/22/20 Chokeholds and policing are certainly a hot topic in today’s society. Today we will be reviewing a use of force case out of the 9th Circuit that touches on chokeholds and another highly debated topic, qualified immunity. The specific topic of today’s case is the use of a neck restraint or so called “choke hold” on a suspect. Chokeholds come with a lot of complications and in many jurisdictions, they are being outlawed.
Montgomery V. Saleh: Ks Supreme Court 2020 The Supreme Court affirmed the opinion of the court of appeals affirming in part and reversing in part the order of the district court granting summary judgment for the State and Patrick Saleh, a highway patrol trooper, and dismissing Plaintiff's complaint alleging negligence and vicarious liability, holding that genuine issues of material fact existed precluding summary judgment.
Plaintiffs, Shelby Montgomery and Scott Bennett, sustained injuries when a Toyota driven by Robert Horton ran a red light and collided with Bennett's truck. Horton was being pursued by Saleh at the time of the collision. Plaintiffs brought this lawsuit, claiming that Saleh was negligent in failing to cease his pursuit of Horton prior to when he did and that the State was vicariously liable. The district court granted summary judgment for Defendants. The court of appeals reversed the district court's finding on proof of causation and remanded for trial. The Supreme Court affirmed, holding (1) a genuine issue of material fact existed as to whether Saleh breached the duty imposed by Kan. Stat. Ann. 8-1506; and (2) a dispute existed as to whether Saleh's conduct was a cause in fact of Plaintiffs' injuries.
Couser v. Gay: 10th Circuit Court of Appeals May 22, 2020 The court overturned a US district court decision and found the Sheriff of Harvey County, Kansas, is a county official when performing law enforcement functions, not a state official. It thus held that, unlike a state official, he is not entitled to Eleventh Amendment immunity when sued for damages in his official capacity under 42 U.S.C. § 1983.
Day v. Wooten, 947 F.3d 453 (7th Cir 2020) Handcuffing and Use of Force Liability The court noted several handcuffing practices that have been clearly established as violating 4th Amendment protections:
Yanking a suspect’s arm and applying excessively tight handcuffs to a suspect who is not resisting arrest and is accused of a minor crime;
An officer’s knowing use of handcuffs in a way that would cause unnecessary injury or pain; and
Officers failing to consider an arrestee’s stated medical or physical injuries or conditions while handcuffing the individual.
DUI Statute Revisions on Prior Out of State Convictions Counting to Enhance To Felony DUI Upheld by Kansas Court of Appeals In a Johnson County DUI case, State v. Mejia, the Kansas Court of Appeals upheld the sentencing provisions as amended by the legislature holding that for a prior out of state DUI conviction apply toward the enhancement of the Kansas DUI to a felony. This could still be appealed to the Kansas Supreme Court.
Inventory Searches: 6th Circuit Court of Appeals rules inventory searches are invalid without agency written policy. See article at this link. United States v. Alexander, 954 F.3d 910 (6th Cir. 2020)
No Immunity for SWAT Teams Use of Flash Diversionary Device (8th Circuit Court of Appeals-MO) Z.J. vs. Kansas City Board of Police Commissioners, 2019 US App LEXIS 23205 (8th Cir July 2019) "While the court acknowledged that it had not ruled on a case involving diversionary devices, there were a number of appellate courts that had addressed this issue. The court went on to cite cases in the Second, Seventh, Ninth and Eleventh circuits where the use of diversionary devices in similar situations was found unreasonable." Source: DLG Learning Center
KS v Glover: A case about car stops An appeal by Attorney General Derek Schmidt in the case of Kansas v Glover has resulted in the US Supreme Court overturning the Kansas Supreme Court. The case questioned the constitutionality of a car stop based on a computer check showing the vehicle owner had a revoked driver's license. A Douglas County made the stop, the driver was revoked, and an arrest was made. Nearly 4 years later, we now know the stop was constitutional.
Here are key statements from the ruling guiding conduct in these stops. "This case presents the question whether a police officer violates the Fourth Amendment by initiating an investigative traffic stop after running a vehicle’s license plate and learning that the registered owner has a revoked driver’s license. We hold that when the officer lacks information negating an inference that the owner is the driver of the vehicle, the stop is reasonable." [Emphasis added.]
"We emphasize the narrow scope of our holding. Like all seizures, “[t]he officer’s action must be ‘justified at its inception.’ ” . . . “The standard takes into account the totality of the circumstances—the whole picture.” . . . As a result, the presence of additional facts might dispel reasonable suspicion. For example, if an officer knows that the registered owner of the vehicle is in his mid-sixties but observes that the driver is in her mid-twenties, then the totality of the circumstances would not “raise a suspicion that the particular individual being stopped is engaged in wrongdoing.” . . . (“ ‘[e]ach case is to be decided on its own facts and circumstances’ ” . . . Here, Deputy Mehrer possessed no exculpatory information—let alone sufficient information to rebut the reasonable inference that Glover was driving his own truck—and thus the stop was justified."
Kahler v Kansas: Insanity Defense See Supreme Court Decision at this link: Kahler v. Kansas. Due process does not require Kansas to adopt an insanity test that turns on a defendant’s ability to recognize that his crime was morally wrong.
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The Tenth Circuit Court of Appeals Upholds KHP Troopers Traffic Stop
The Tenth Circuit Court of Appeals held that at the conclusion of the traffic stop, specific and articulable facts existed to provide the trooper with reasonable suspicion that Berg was engaged in criminal activity.
United States v. Berg, 947 F.3d 1313 (10th Cir. 2020) A Kansas state trooper was patrolling a section of Interstate-70 (I-70) when he saw three vehicles traveling east. The trooper noticed that all three were traveling approximately ten miles-per-hour below the speed limit and none had a Kansas license plate. Because it was uncommon to see three vehicles with out-of-state plates traveling in close proximity on I-70, the trooper believed the vehicles were traveling together. The trooper pulled onto the roadway and caught up with the trailing vehicle, a compact car with California license plates. The trooper checked the vehicle’s registration with his in-car computer and discovered it was registered to a rental company in California.
As the trooper investigated the trailing vehicle, he noticed the two other vehicles, a red minivan and a pickup truck, sped up and began to travel at approximately the speed limit. The trooper passed the compact car and began following the minivan. The trooper determined the minivan was registered to a rental company in Arizona. While the trooper was investigating the minivan and running its registration, he saw it commit a traffic violation. Almost immediately after the minivan committed the infraction, the trooper saw the pickup truck accelerate to approximately ten-miles-per hour over the speed limit. The trooper ran the truck’s license plates and discovered that it was registered to a private individual in California.
Based on his observations, the trooper believed the compact car and the pickup truck were escort vehicles which, based on his training and experience, he believed were used by drug traffickers to divert attention from a vehicle transporting illegal drugs. In addition, the trooper believed the pickup truck had tried to divert his attention from the minivan by speeding up when it noticed he was following the minivan. The trooper decided to stop the minivan based on his belief it was more likely the “load” vehicle because of its larger capacity.
After the trooper stopped the minivan, he approached it and saw that it contained a large amount of cargo. The driver, Mark Berg, told the trooper that he was moving from Las Vegas to Minnesota. The trooper did not believe Berg’s story because, in his experience, the way Berg’s items were packed was not consistent with what he typically sees when interacting with motorists who are moving. Specifically, the trooper saw boxes, duffel bags, and suitcases stacked floor to ceiling, “crammed” into the minivan when he expected to see household items that cannot be packed into boxes, such as appliances, mixed in with the other items.
Based on his observations, the trooper believed Berg was transporting drugs. The trooper returned Berg’s documents and then asked Berg if he would answer a few more questions. Berg did not expressly agree but he continued speaking to the trooper. When the trooper asked Berg for consent to search the minivan Berg refused. At this point, the trooper told Berg he was being detained while an officer with a drug-sniffing dog was called. When the dog arrived, it alerted to the presence of drugs in the minivan. Officers searched the minivan and found approximately 471 pounds of marijuana.
The government charged Berg with possession with intent to distribute marijuana. Berg filed a motion to suppress all evidence seized from his minivan. The district court denied Berg’s motion and he appealed.
On appeal, Berg did not challenge the validity of the initial stop, which the trooper testified was based on two traffic violations committed by Berg: following too closely and failing to maintain a lane. Instead, Berg argued that the trooper unlawfully detained him from the time he refused consent to search the minivan until the drug dog alerted on the vehicle. Generally, a police officer may detain a driver once the initial traffic stop ends if, during the stop, “the officer develops an objectively reasonable and articulable suspicion that the driver is engaged in some illegal activity.” To determine whether an officer has a reasonable suspicion to continue the detention, a court will “look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis” for suspecting illegal activity.
Here, the Tenth Circuit Court of Appeals held that at the conclusion of the traffic stop, specific and articulable facts existed to provide the trooper with reasonable suspicion that Berg was engaged in criminal activity.
First, the trooper’s suspicion that the three vehicles he followed were traveling in tandem to support a drug trafficking operation was supported by the following facts: (1) in his experience it was uncommon to see three vehicles with out-of-state plates traveling in close proximity to each other on I-70; (2) the three vehicles were all traveling at approximately ten-miles-per-hour under the speed limit; (3) when the trooper got behind the compact car it continued to travel at approximately ten-miles-per hour under the speed limit while the minivan and pickup truck accelerated to the speed limit; and (4) the pickup truck accelerated to approximately ten-miles-per hour over the speed limit almost immediately after the minivan committed a traffic violation.
From these facts, the court concluded that it was reasonable for the trooper to infer that the pickup truck was intentionally diverting his attention from the minivan, which he believed to be the “load” vehicle because of its cargo capacity and because the pickup truck was registered to a private individual. In the trooper’s experience, he testified that he rarely saw large amounts of drugs transported in privately owned vehicles. Second, the trooper’s observations concerning Berg’s cargo, in his experience, was not consistent with Berg’s claim that he was moving from Las Vegas to Minnesota. Specifically, Berg’s minivan was densely packed with at least five large moving boxes for flat panel televisions and twelve full duffel bags and suitcases, which the trooper testified was inconsistent with what he typically sees when people are moving. Consequently, the court held that the trooper had reasonable suspicion to prolong the stop while he waited for the officer to bring the drug-sniffing dog.
10th Circuit Upholds Use of a Network Investigative Technique to Identify the IP Address The US 10th Circuit upheld the use of a Network Investigative Technique to identify the Internet Protocol address of a computer used to connect to a known child pornography website. See details at this link: US V Wagner
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Federal Immigration Laws Do Not Preempt State Laws on Use of False Social Security Numbers In overturning the Kansas Supreme Court ruling that the federal immigration laws preempted use of false social security numbers on all federal forms in a state case of identity theft, the court stated: "The Kansas Supreme Court thought that the prosecutions in these cases ran afoul of this provision because the charges were based on respondents’ use in their W–4’s and K–4’s of the same false Social Security numbers that they also inserted on their I–9’s. Taken at face value, this theory would mean that no information placed on an I–9— including an employee’s name, residence address, date of birth, telephone number, and e-mail address—could ever be used by any entity or person for any reason. This interpretation is flatly contrary to standard English usage." Kansas v Garcia
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Smart v Wichita 10th Circuit Opinion Upheld qualified immunity for officers in all claims except the claim one officer fired a shot after threat had ended. Smart v Wichita 10th Circuit Opinion
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Qualified Immunity Denied in Case Alleging "Gratuitous" Use of Force in Manner of Transporting Suspect2/5/2020 Tenth Circuit Court of Appeals McCowan v. Morales, 2019 U.S. App. LEXIS 38816 (10th Cir. NM Dec. 27, 2019) Officer denied qualified immunity in case alleging the gratuitous use of force by placing a handcuffed compliant suspect in the back seat of the patrol car, failing to use the seatbelt to restrain the suspect, and allegedly driving recklessly throwing the suspect around in the back seat. Failing to provide medical attention for complaint of injury was also part of the case.
US Supreme Court Activity (Source: TSRP DUI Update January 3, 2020) Mitchell v. Wisconsin – Argument - April 23, 2019 – Transcript – Audio – June 27, 2019 – Opinion Released Issue: Whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.
Kansas v. Glover – Argument - November 4, 2019 – Transcript – Audio Issue: Whether, for purposes of an investigative stop under the Fourth Amendment, it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary.
State v. Baker, 120411, (KS Ct. of Appeals – 12.20.2019) – Affirmed Kansas Court of Appeals confirmed DUI conviction appealed claiming evidence was insufficient to prove defendant was intoxicated to an extent that rendered him incapable of safely driving. Source: TSRP DUI Update 1/3/2020
Kansas Court of Appeals Ruling State v. Shelbie Ellis; No. 120,046 See full article at this link on the KPOA website. Read the full opinion at this link. . . .bottom line and best practice: officers should remember that they have no authority to compel identification from a person at a welfare check; and once it is found that the person does not need further assistance, then the officer should just leave. Police practice or department policy or supervisor directions notwithstanding. Such practices do not override the Constitution.
In Shelbie’s case, after Shelbie had made it clear that she did not need assistance: 1) the officers should have left; or, 2) at most, the officers could have asked for Shelbie’s affirmative consent to identify herself. And, after obtaining the identification, the officers should have immediately returned the ID, walked away, run the warrant check away from Shelbie, and when it hit, re-contacted Shelbie and arrested her on the warrant. It was the retention of the DL, the close remaining with Shelbie, and all of the unnecessary questioning that the panel justifiably did not like.
Lastly, there is an unfortunate comment by the panel in this case that the defense bar may cite to in the future. The panel hints that no person’s identification obtained at a welfare check, even given voluntarily and under no-detention circumstances, can be used for a warrant/NCIC check because that police action would be a “criminal investigation.” The panel’s comment is not supported in the case law, and interestingly the panel does not cite to any. Why? Probably because no person has an expectation of privacy in their personal criminal information inside of a warrant file or in the NCIC database.
In Nieves v. Bartlett, the US Supreme Court allowed qualified immunity in a case where the defendant claimed the arrest was retaliatory. "The issue before the Court was: Whether probable cause to make an arrest defeats a claim that the arrest was in retaliation for speech protected by the First Amendment." The USSC overturned the 9th Circuit stating "that probable cause to arrest a suspect should generally defeat a First Amendment retaliatory arrest claim brought under 42 U.S.C. § 1983. However, the Court added that a 'narrow qualification is warranted for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so.' For example, the Court commented that at many intersections jaywalking is commonplace, and is a crime that rarely results in arrest. So, in a case where a person who has been vocally complaining about police conduct is arrested for jaywalking at such an intersection, where others have not routinely been arrested, the Court concluded the person’s First Amendment rights would not be sufficiently protected if a retaliatory arrest claim could be dismissed simply because probable cause existed to arrest him. Consequently, the court found that even if an officer has probable cause to arrest, a plaintiff’s First Amendment retaliatory arrest claim may survive so long as the plaintiff presents objective evidence that he was arrested when otherwise similarly situated persons not engaged in the same type of protected speech had not been arrested."
In US vs Loera, the 10th circuit upheld a lower court ruling to not suppress evidence of child pornography discovered while examining electronic media in a fraud case. A key component of the case was an agent going back to the media on which he had earlier observed the child pornography to get additional details of the pornography to accurately describe it in the affidavit for a follow-up search warrant.
THIS RULING IS NOT APPLICABLE IN KANSAS. But it is troubling from a public safety perspective. In my opinion, the logic they use would not be too shocking to see in a Kansas ruling. Let's hope I'm wrong. Read this article from US News. Read the case law (Idaho v Clarke) at this link.
Kansas Supreme Court rules smell of marijuana is sufficient to justify residential search. See State v Hubbard. See KPOA summary of case at this link. In this case emanating from Lawrence, officers detected the smell of marijuana coming from inside a house as they encountered the suspect at the front door. The officers secured the house and obtained a search warrant. The court upheld the search and the conviction.
In an unpublished opinion issued on Friday, October12, 2018, the Kansas Court of Appeals ruled the 2018 amendments to the Kansas Civil Forfeiture Act are "procedural" in nature and are thus retroactively applied. This means the changes to filings by persons asserting a property interest and procedures for handling civil forfeiture and related criminal proceedings, among other court procedures that were amended, will apply to forfeiture cases initiated or filed prior to the effective date of the amended law. The ruling is in the case of Junction City Police Department v. $454,280 (Robert Henderson). It is not known if the state will file an appeal to the ruling.
CARPENTER v. UNITED STATES 819 F. 3d 880 SyllabusOpinion [Roberts] Dissenting opinions are also available on the syllabus page.
In yet another 5-4 decision with the liberal members prevailing, the USSC ruled on June 22, 2018, that search warrants are required to obtain cell phone location information in certain cases. This raises the bar to obtain the information from reasonable suspicion used under the Stored Communications Act to probable cause for a search warrant.
The court was explicit that this is to be a “narrow” decision. The decision also explicitly acknowledges that exigent circumstances may be permissible to get this information without a warrant. As always, the failsafe position is get a warrant. So we want cell tower information in an investigation, we ought to obtain a search warrant in all but very exceptional circumstances.
All agencies should be having discussions with their prosecutors to establish how to proceed when attempting to obtain cell phone location records.
The decision is 119 pages long, but here is the nuts and bolts of the decision: The syllabus summarizes the case as follows. "Cell phones perform their wide and growing variety of functions by continuously connecting to a set of radio antennas called “cell sites.” Each time a phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI). Wireless carriers collect and store this information for their own business purposes. Here, after the FBI identified the cell phone numbers of several robbery suspects, prosecutors were granted court orders to obtain the suspects’ cell phone records under the Stored Communications Act. Wireless carriers produced CSLI for petitioner Timothy Carpenter’s phone, and the Government was able to obtain 12,898 location points cataloging Carpenter’s movements over 127 days—an average of 101 data points per day. Carpenter moved to suppress the data, arguing that the Government’s seizure of the records without obtaining a warrant supported by probable cause violated the Fourth Amendment. The District Court denied the motion, and prosecutors used the records at trial to show that Carpenter’s phone was near four of the robbery locations at the time those robberies occurred. Carpenter was convicted. The Sixth Circuit affirmed, holding that Carpenter lacked a reasonable expectation of privacy in the location information collected by the FBI because he had shared that information with his wireless carriers."
Key decision points include: "The Government’s acquisition of Carpenter’s cell-site records was a Fourth Amendment search."
". . . when an individual 'seeks to preserve something as private,' and his expectation of privacy is 'one that society is prepared to recognize as reasonable,' official intrusion into that sphere generally qualifies as a search and requires a warrant supported by probable cause."
"The digital data at issue—personal location information maintained by a third party—does not fit neatly under existing precedents but lies at the intersection of two lines of cases. One set addresses a person’s expectation of privacy in his physical location and movements. . .The other addresses a person’s expectation of privacy in information voluntarily turned over to third parties."
"Tracking a person’s past movements through CSLI partakes of many of the qualities of GPS monitoring considered in Jones--it is detailed, encyclopedic, and effortlessly compiled. At the same time, however, the fact that the individual continuously reveals his location to his wireless carrier implicates the third-party principle of Smith and Miller. Given the unique nature of cell-site records, this Court declines to extend Smith and Miller to cover them."
"A majority of the Court has already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements. . . .historical cell-site records present even greater privacy concerns than the GPS monitoring considered in Jones: They give the Government near perfect surveillance and allow it to travel back in time to retrace a person’s whereabouts, subject only to the five-year retention policies of most wireless carriers."
"This decision is narrow. It does not express a view on matters not before the Court; does not disturb the application of Smith and Miller or call into question conventional surveillance techniques and tools, such as security cameras; does not address other business records that might incidentally reveal location information; and does not consider other collection techniques involving foreign affairs or national security."
"The Government did not obtain a warrant supported by probable cause before acquiring Carpenter’s cell-site records. It acquired those records pursuant to a court order under the Stored Communications Act, which required the Government to show “reasonable grounds” for believing that the records were “relevant and material to an ongoing investigation.” 18 U. S. C. §2703(d). That showing falls well short of the probable cause required for a warrant. Consequently, an order issued under §2703(d) is not a permissible mechanism for accessing historical cell-site records. Not all orders compelling the production of documents will require a showing of probable cause. A warrant is required only in the rare case where the suspect has a legitimate privacy interest in records held by a third party. And even though the Government will generally need a warrant to access CSLI, case-specific exceptions--e.g., exigent circumstances—may support a warrantless search."
NOTICE: The owner of this website is not an attorney. Nothing on this website should be interpreted to be a legal opinion by the owner. The intent is to share information established in Attorney General Opinion, Court Cases, or other legal authorities.
In Nieves v. Bartlett, the US Supreme Court allowed qualified immunity in a case where the defendant claimed the arrest was retaliatory. "The issue before the Court was: Whether probable cause to make an arrest defeats a claim that the arrest was in retaliation for speech protected by the First Amendment." The USSC overturned the 9th Circuit stating "that probable cause to arrest a suspect should generally defeat a First Amendment retaliatory arrest claim brought under 42 U.S.C. § 1983. However, the Court added that a 'narrow qualification is warranted for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so.' For example, the Court commented that at many intersections jaywalking is commonplace, and is a crime that rarely results in arrest. So, in a case where a person who has been vocally complaining about police conduct is arrested for jaywalking at such an intersection, where others have not routinely been arrested, the Court concluded the person’s First Amendment rights would not be sufficiently protected if a retaliatory arrest claim could be dismissed simply because probable cause existed to arrest him. Consequently, the court found that even if an officer has probable cause to arrest, a plaintiff’s First Amendment retaliatory arrest claim may survive so long as the plaintiff presents objective evidence that he was arrested when otherwise similarly situated persons not engaged in the same type of protected speech had not been arrested."
In US vs Loera, the 10th circuit upheld a lower court ruling to not suppress evidence of child pornography discovered while examining electronic media in a fraud case. A key component of the case was an agent going back to the media on which he had earlier observed the child pornography to get additional details of the pornography to accurately describe it in the affidavit for a follow-up search warrant.
THIS RULING IS NOT APPLICABLE IN KANSAS. But it is troubling from a public safety perspective. In my opinion, the logic they use would not be too shocking to see in a Kansas ruling. Let's hope I'm wrong. Read this article from US News. Read the case law (Idaho v Clarke) at this link.
Kansas Supreme Court rules smell of marijuana is sufficient to justify residential search. See State v Hubbard. See KPOA summary of case at this link. In this case emanating from Lawrence, officers detected the smell of marijuana coming from inside a house as they encountered the suspect at the front door. The officers secured the house and obtained a search warrant. The court upheld the search and the conviction.
In an unpublished opinion issued on Friday, October12, 2018, the Kansas Court of Appeals ruled the 2018 amendments to the Kansas Civil Forfeiture Act are "procedural" in nature and are thus retroactively applied. This means the changes to filings by persons asserting a property interest and procedures for handling civil forfeiture and related criminal proceedings, among other court procedures that were amended, will apply to forfeiture cases initiated or filed prior to the effective date of the amended law. The ruling is in the case of Junction City Police Department v. $454,280 (Robert Henderson). It is not known if the state will file an appeal to the ruling.
CARPENTER v. UNITED STATES 819 F. 3d 880 SyllabusOpinion [Roberts] Dissenting opinions are also available on the syllabus page.
In yet another 5-4 decision with the liberal members prevailing, the USSC ruled on June 22, 2018, that search warrants are required to obtain cell phone location information in certain cases. This raises the bar to obtain the information from reasonable suspicion used under the Stored Communications Act to probable cause for a search warrant.
The court was explicit that this is to be a “narrow” decision. The decision also explicitly acknowledges that exigent circumstances may be permissible to get this information without a warrant. As always, the failsafe position is get a warrant. So we want cell tower information in an investigation, we ought to obtain a search warrant in all but very exceptional circumstances.
All agencies should be having discussions with their prosecutors to establish how to proceed when attempting to obtain cell phone location records.
The decision is 119 pages long, but here is the nuts and bolts of the decision: The syllabus summarizes the case as follows. "Cell phones perform their wide and growing variety of functions by continuously connecting to a set of radio antennas called “cell sites.” Each time a phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI). Wireless carriers collect and store this information for their own business purposes. Here, after the FBI identified the cell phone numbers of several robbery suspects, prosecutors were granted court orders to obtain the suspects’ cell phone records under the Stored Communications Act. Wireless carriers produced CSLI for petitioner Timothy Carpenter’s phone, and the Government was able to obtain 12,898 location points cataloging Carpenter’s movements over 127 days—an average of 101 data points per day. Carpenter moved to suppress the data, arguing that the Government’s seizure of the records without obtaining a warrant supported by probable cause violated the Fourth Amendment. The District Court denied the motion, and prosecutors used the records at trial to show that Carpenter’s phone was near four of the robbery locations at the time those robberies occurred. Carpenter was convicted. The Sixth Circuit affirmed, holding that Carpenter lacked a reasonable expectation of privacy in the location information collected by the FBI because he had shared that information with his wireless carriers."
Key decision points include: "The Government’s acquisition of Carpenter’s cell-site records was a Fourth Amendment search."
". . . when an individual 'seeks to preserve something as private,' and his expectation of privacy is 'one that society is prepared to recognize as reasonable,' official intrusion into that sphere generally qualifies as a search and requires a warrant supported by probable cause."
"The digital data at issue—personal location information maintained by a third party—does not fit neatly under existing precedents but lies at the intersection of two lines of cases. One set addresses a person’s expectation of privacy in his physical location and movements. . .The other addresses a person’s expectation of privacy in information voluntarily turned over to third parties."
"Tracking a person’s past movements through CSLI partakes of many of the qualities of GPS monitoring considered in Jones--it is detailed, encyclopedic, and effortlessly compiled. At the same time, however, the fact that the individual continuously reveals his location to his wireless carrier implicates the third-party principle of Smith and Miller. Given the unique nature of cell-site records, this Court declines to extend Smith and Miller to cover them."
"A majority of the Court has already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements. . . .historical cell-site records present even greater privacy concerns than the GPS monitoring considered in Jones: They give the Government near perfect surveillance and allow it to travel back in time to retrace a person’s whereabouts, subject only to the five-year retention policies of most wireless carriers."
"This decision is narrow. It does not express a view on matters not before the Court; does not disturb the application of Smith and Miller or call into question conventional surveillance techniques and tools, such as security cameras; does not address other business records that might incidentally reveal location information; and does not consider other collection techniques involving foreign affairs or national security."
"The Government did not obtain a warrant supported by probable cause before acquiring Carpenter’s cell-site records. It acquired those records pursuant to a court order under the Stored Communications Act, which required the Government to show “reasonable grounds” for believing that the records were “relevant and material to an ongoing investigation.” 18 U. S. C. §2703(d). That showing falls well short of the probable cause required for a warrant. Consequently, an order issued under §2703(d) is not a permissible mechanism for accessing historical cell-site records. Not all orders compelling the production of documents will require a showing of probable cause. A warrant is required only in the rare case where the suspect has a legitimate privacy interest in records held by a third party. And even though the Government will generally need a warrant to access CSLI, case-specific exceptions--e.g., exigent circumstances—may support a warrantless search."
FLETC Informer: Court Case Law Review April 2018 United States Supreme Court Kisela v. Hughes: Whether an officer was entitled to qualified immunity in a lawsuit where the plaintiff claimed the officer violated the Fourth Amendment by using excessive force when he shot her
United States v. Microsoft: Whether a warrant issued under § 2703 of the Stored Communications Act required Microsoft to produce the contents of a customer’s email account stored on a server outside the United States
Montgomery v Saleh This is a troubling court decision that will hopefully be reversed on appeal. It generally holds the pursuing officer responsible for the actions of a pursued driver.
FLETC Informer: Court Case Law Review March 2018 Tenth Circuit United States v. Stevens: Whether the defendant’s online messages to the Tulsa Police Department constituted “true threats” under 18 U.S.C. § 875(c)
FLETC Informer: Court Case Law Review Jan 2018 United States Supreme Court District of Columbia v. Wesby: Whether officers had probable cause to arrest multiple partygoers in a vacant house for unlawful entry and whether the officers were entitled to qualified immunity because the law was not clearly established.
Tenth Circuit United States v. Bagley: Whether the search of a bedroom fell within the scope of a protective sweep after the defendant was arrested near the front door of the house
Farrell v. Montoya: Whether an officer used excessive force against the plaintiffs in violation of the Fourth Amendment when he fired three shots at their fleeing vehicle
United States v. Saulsberry: Whether a tip from a restaurant employee provided reasonable suspicion to detain the defendant, and whether the officer established probable cause to examine a stack of cards found in a bag inside the defendant’s car.
An interesting case in the 10th circuit on First Amendment rights, McDonnell v City and County of Denver. It is only a ruling on the US District Court decision on an injunction against enforcement pending the case outcome. So the final decision on the merits in the case are still pending. But the discussion of the First Amendment Rights and development of law to balance those rights against public safety interests might be of interest and perhaps even useful if one is developing or modifying laws on this subject.
In yet another blow to DUI enforcement, the Kansas Appellate Court issued a ruling on Dec. 22, 2017, in State v Robinson striking down the Preliminary Breath statute. It is unclear whether the opinion will be appealed. The ruling centers on applying the Ryce decision by the Kansas Supreme Court to preliminary breath testing based on a criminal charge for refusing the test, i.e. the suspect withdrawing their implied consent. Check with your local prosecutors for advice on handling the PBT requests at this point.
On December 18, 2017, the 10th Circuit Court of Appeals has reversed a Kansas City US District Court case ruling a protective sweep of a home went too far and resulted in officers gaining information used to obtain a search warrant for the whole house. See US vs. Stephen Bagley.
KEY STATEMENT IN DECISION: The seminal precedent is Maryland v. Buie, 494 U.S. 325 (1990). There the Supreme Court allowed protective sweeps in two situations. In the first situation, authorities can look in “closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” 494 U.S. at 334. In the second situation, authorities can look elsewhere in the house upon specific, articulable facts supporting a reasonable belief that someone dangerous remains in the house.
FLETC Informer: Court Case Law Report Dec 2017 Tenth Circuit United States v. Mirabal: Whether it was reasonable for an officer to enter the backseat of the defendant’s car and pull down an armrest to access the trunk to search for a rifle
Byrd v. United States: Whether a driver has a reasonable expectation of privacy in a rental car when he has the renter’s permission to drive the car but is not listed as an authorized driver on the rental agreement.
Carpenter v. United States: Whether the Fourth Amendment requires the government to get a search warrant to obtain historical cell site location information from wireless carriers or if this information can be obtained by a court order under § 2703(d) of the Stored Communications Act.
City of Hays, Kansas v. Vogt: Whether the Fifth Amendment’s Self Incrimination Clause prohibits the use of compelled statements at a probable cause hearing.
Collins v. Virginia: Whether a police officer could enter private property without a warrant or consent, approach a home, and search a vehicle parked a few feet from the house under the automobile exception.
Dahda v. United States: Whether Title III requires suppression of evidence obtained pursuant to wiretap orders that were invalid because the orders exceeded the issuing judge’s territorial jurisdiction.
District of Columbia v. Wesby: Whether police officers had probable cause to arrest for trespassing when the owner of a vacant home tells the officers that he had not authorized entry while the suspects claimed they had permission to be in the house.
United States v. Microsoft Corporation: Whether a warrant issued under § 2703 of the Stored Communications Act required Microsoft to produce the contents of a customer’s email account stored on a server outside the United States.
Lozman v. City of Riviera Beach, Florida: Whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law.
On May 23, 2017, the 10th circuit ruled a municipal court conviction is not sufficient for a federal charge of illegal possession of a firearm in a case of a prior domestic battery conviction in a municipal court. As it stands now, unless the 10th Circuit opinion from yesterday is overturned which I believe is unlikely, there is literally no state or federal criminal sanction in Kansas for a person possessing a firearm in Kansas after conviction of domestic battery in a municipal court. That is not good for our domestic violence victims and programs.
Supreme Court Cases: 2015-2016 Term – A number of Supreme Court decisions of particular importance to law enforcement are summarized. From the FBI Law Enforcement Bulletin
US Supreme Court Denies Certiorari on a civil forfeiture case. March 6, 2017 LISA OLIVIA LEONARD v. TEXAS The case appears to have been denied due to a procedural defect and not because the court isn't looking for a civil forfeiture case to hear.
The case is out of Texas and the denial order is worth reading as it casts doubt on the due process of the civil forfeiture process and begs for a case that can procedurally come before the court.
10th Cir. Case, Vogt v. City of Hays (KS) involving investigation of officer: Whether the self-incrimination clause of the Fifth Amendment prohibits the use of compelled statements in a probable cause hearing, whether four officers were entitled to qualified immunity, and whether the district court properly dismissed the plaintiff’s claims against two municipalities.
Key takeaway from the ruling: The 10th circuit has now established "The Fifth Amendment protects individuals against compulsion to incriminate themselves “in any criminal case.” U.S. Const. amend. V. This amendment prohibits compulsion of law enforcement officers to make self-incriminating statements in the course of employment. Garrity v. New Jersey, 385 U.S. 493, 500 (1967). As a law enforcement officer, Mr. Vogt enjoyed protection under the Fifth Amendment against use of his compelled statements in a criminal case."
Another key takeaway is this statement from the ruling: ". . . this right was violated in 2013 and 2014 when Mr. Vogt’s compelled statements were allegedly used to develop investigatory leads, initiate a criminal investigation, and bring charges."
My editorial comments: This case was a 2-1 decision with the Chief Judge of the 10th Circuit offering the dissenting opinion. So this case may not be final yet if further appealed. The tone of the opinion is a bit unusual and, to me, reeks of a justice completely ticked off by the attorneys. Regardless, It still should be read by any officer engaging in interdiction stops followed by a good discussion of the case with your agency leadership and legal representation. There is some good guidance in the opinion on issues the 10th Circuit Court finds troubling in these cases. (Remember, I am not an attorney and I am not offering legal advice.)
Vasquez v Lewis and Jimmerson. The case involves a stop based on a vehicle displaying a temporary tag not clearly visible because it was taped inside a tinted window. A warning was issued prior to the officers asking for permission to search the vehicle. The driver did not give consent and was detained pending arrival of a drug dog. No drugs or other evidence of a crime was found. The case seems to revolve around whether the detention after the return of the license, consent to answer additional questions, and denial of permission to search the vehicle was an unlawful Fourth Amendment violation and whether the officers should be granted qualified immunity.
An interesting quote from the case: "This Court has repeatedly admonished law enforcement that once an officer has been assured that a temporary tag is valid, he “should . . . explain[] to Defendant the reason for the initial stop and then allow[] her to continue on her way without requiring her to produce her license and registration.” [My editorial comment: This seems to ignore that such a display behind a tinted window is a violation of state law, KSA 8-133.]
Also from the opinion: "Even under the totality of the circumstances, it is anachronistic to use state residence as a justification for the Officers’ reasonable suspicion." "Absent a demonstrated extraordinary circumstance, the continued use of state residency as a justification for the fact of or continuation of a stop is impermissible." It is important to note the residency was only one of nine things the officers listed as facts leading to their suspicion of criminal activity. The opinion also notes in footnotes: 1 The Officers also argue that Vasquez gave vague or inconsistent answers to questions about his travel plans. However, the Officers do not explain what these answers were or why they were contradictory. On reviewing the record, which contains a video recording of the interactions between the Officers and Vasquez, we cannot find anything even arguably inconsistent in Vasquez’s answers. 2 Neither the dissent nor the Officers explain how these factors, taken together, indicate suspicious behavior. The Officers instead recite them as a list of unrelated facts. But officers must explain why the factors, together, create “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Lambert, 46 F.3d at 1069 (quotation omitted ). As the Supreme Court has reminded the circuit courts, we should not and cannot review these factors in isolation. Arvizu, 534 U.S. at 273. Thus, officers must explain why the factors considered together are suspicious, and not simply recite isolated factors, leaving it to the courts to glean how they create reasonable suspicion.
United States v. Ackerman, (10th Cir. Kan. Aug. 5, 2016) The case involves an e-mail forwarded to NCMEC by AOL after they were alerted images attached to the e-mail matched certain child pornography profiles. AOL did not open the e-mail but forwarded it to NCMEC who did open it. NCMEC determined the four attached images were child pornography. Service providers are required by federal law to forward messages thought to contain child pornography to NCMEC. Federal law also authorizes NCMEC to open and review those e-mails and forward them to government law enforcement agencies for investigation if they are found to contain child pornography.
The court also questions application of the private search doctrine in light of the United States Supreme Court decision in United States v. Jones. In this case, NCMEC exceeded the search of the e-mail and attachments by AOL since AOL did not open the e-mail and examine the photos but relied only on a digital "hit" indicating one of the images matched an image previously found to be child pornography.
The case was remanded to the District Court for further consideration. So for the time being, it appears the operations of NCMEC continue unchanged. But this case bears watching as the District Court considers other reasons the search may be acceptable.
In the end, the ruling provides, ". . .hard questions remain to be resolved on remand, not least the question whether the third-party doctrine might preclude Mr. Ackerman’s claim to the Fourth Amendment’s application, a question the government has preserved and the district court and we have reserved. But about one thing we can be very certain. There can be no doubt that NCMEC does important work and that its work can continue without interruption. After all, it could be that the third-party doctrine will preclude motions to suppress like Mr. Ackerman’s. Or that changes in how reports are submitted or reviewed might allow NCMEC to access attachments with matching hash values directly, without reviewing email correspondence or other attachments with possibly private, noncontraband content — and in this way perhaps bring the government closer to a successful invocation of the private search doctrine. Or it may be possible that the government could cite exigent circumstances or attenuation doctrine or special needs doctrine or the good faith exception to excuse warrantless searches or avoid suppression in at least some cases. But even if not a single one of these potential scenarios plays out — and we do not mean to prejudge any of them — we are confident that NCMEC’s law enforcement partners will struggle not at all to obtain warrants to open emails when the facts in hand suggest, as they surely did here, that a crime against a child has taken place."
US vs. Ackerman. The ruling remands the case back to the Kansas US District Court for further consideration of any Fourth Amendment exceptions in light of the Appeals Court ruling NCMEC is indeed a governmental entity and that their opening of an e-mail containing pornographic image attachments was a warrantless search subject to the Fourth Amendment.
In a 6-2 decision, the USSC upheld the federal firearm prohibition for persons convicted of misdemeanor domestic violence. The argument before the court was whether reckless conduct was sufficient to support the prohibition. The court ruled it is.
Davis v. Clifford (10th Cir. Colo. June 13, 2016) Qualified immunity case evolving from breaking a car window and forcibly removing a driver with an active arrest warrant for driving while suspended from a no insurance case. The lower court grants qualified immunity but the 10th circuit reverses and remands to the lower court for further proceedings. The crux of this case the driver was refusing to cooperate and get out of the car, but was not actively resisting or attempting to flee. It will be interesting to watch this case to see what evolves from the lower court.
A ruling by the 4th circuit, not directly affecting Kansas courts or law enforcement, says a warrant is not needed for cell tower location data. The significance of this for Kansas is that it moves the question closer to going to the US Supreme Court for a decision. See the article here. 2016 Session Law Chapter List6/3/2016 0 Comments
The Secretary of State's Office has published a list of bills passed with the assigned Session Law Chapters at: http://www.kssos.org/pubs/pubs_session_laws.html The session laws will be published at that same link on or before July 1, 2016.
I have amended the Secretary of State document by adding some additional fields and links to the bill information on the legislative website. This can be downloaded at the following links: Excel Document (Sort and Filter Enabled) PDF Document
Two decisions from the 10th Circuit Court of Appeals. Cases appealed from Oklahoma. Interesting cases with some good law enforcement guidance points but probably not ground breaking.
US v Carless: 10th Circuit upheld a knock and talk contact at a house with a "no trespassing" sign on the front porch. The knock and talk led to a voluntary entry to the home where drugs were in plain view, which led to a search warrant for the home. Article from Lexipol on this case.
Perea v Baca: The 10th Circuit upheld a court ruling in New Mexico denying qualified immunity to the officers in a lawsuit based on excessive force for extended use of a taser. The court said, "It is—and was at the time of Perea’s death—clearly established law in the Tenth Circuit that the use of disproportionate force to arrest an individual who is not suspected of committing a serious crime and who poses no threat to others constitutes excessive force. Fogarty, 523 F.3d at 1160; Casey, 509 F.3d at 1281, 1285 (use of force, including a taser, against a suspect who committed only a nonviolent misdemeanor, and who did not struggle against officers until the officers employed force, was unlawful). More specifically, it is likewise clearly established that officers may not continue to use force against a suspect who is effectively subdued. . .See, e.g., Fancher v. Barrientos, 723 F.3d 1191, 1201 (10th Cir. 2013) (although a single shot by an officer may have been justified, the following six shots were clearly unlawful because they occurred after arrestee no longer posed a threat of serious harm)." 0 Comments Overlooked Legal Nuggets 5/6/2016 0 Comments
Police Magazine Point of Law Overlooked Legal Nuggets10 little-noticed "good-news" rulings you can use to your advantage. NOTE: Application of case law is always trickier than a two page magazine article can portray. This article contains useful case law references, but use them to engage your prosecutors, trainers, and legal advisors in conversations about how these apply in your agency and jurisdiction.
State vs Patterson: The Ks Supreme Court upheld upheld the court of appeals ruling reversing the district court. The Supreme Court ruling holds the search of a vehicle parked in the driveway of a residence when searched on the basis of a search warrant for the "premises" was legal. The court points out the importance of the use of the term "premises" and not lacking such a term previously ruled to include the curtilage. For example the ruling states: "Fortunately, in Patterson's case, the issuing magistrate included terms— specifically the term "premises"—in the warrant itself setting the outer boundary of the warrant's scope at the totality of the unit of property ownership." 2016 Session Law Chapter List6/3/2016 0 Comments
The Secretary of State's Office has published a list of bills passed with the assigned Session Law Chapters at: http://www.kssos.org/pubs/pubs_session_laws.html The session laws will be published at that same link on or before July 1, 2016.
I have amended the Secretary of State document by adding some additional fields and links to the bill information on the legislative website. This can be downloaded at the following links: Excel Document (Sort and Filter Enabled) PDF Document
Two decisions from the 10th Circuit Court of Appeals. Cases appealed from Oklahoma. Interesting cases with some good law enforcement guidance points but probably not ground breaking.
US v Carless: 10th Circuit upheld a knock and talk contact at a house with a "no trespassing" sign on the front porch. The knock and talk led to a voluntary entry to the home where drugs were in plain view, which led to a search warrant for the home. Article from Lexipol on this case.
Perea v Baca: The 10th Circuit upheld a court ruling in New Mexico denying qualified immunity to the officers in a lawsuit based on excessive force for extended use of a taser. The court said, "It is—and was at the time of Perea’s death—clearly established law in the Tenth Circuit that the use of disproportionate force to arrest an individual who is not suspected of committing a serious crime and who poses no threat to others constitutes excessive force. Fogarty, 523 F.3d at 1160; Casey, 509 F.3d at 1281, 1285 (use of force, including a taser, against a suspect who committed only a nonviolent misdemeanor, and who did not struggle against officers until the officers employed force, was unlawful). More specifically, it is likewise clearly established that officers may not continue to use force against a suspect who is effectively subdued. . .See, e.g., Fancher v. Barrientos, 723 F.3d 1191, 1201 (10th Cir. 2013) (although a single shot by an officer may have been justified, the following six shots were clearly unlawful because they occurred after arrestee no longer posed a threat of serious harm)." 0 Comments Overlooked Legal Nuggets 5/6/2016 0 Comments
Police Magazine Point of Law Overlooked Legal Nuggets10 little-noticed "good-news" rulings you can use to your advantage. NOTE: Application of case law is always trickier than a two page magazine article can portray. This article contains useful case law references, but use them to engage your prosecutors, trainers, and legal advisors in conversations about how these apply in your agency and jurisdiction.
State vs Patterson: The Ks Supreme Court upheld upheld the court of appeals ruling reversing the district court. The Supreme Court ruling holds the search of a vehicle parked in the driveway of a residence when searched on the basis of a search warrant for the "premises" was legal. The court points out the importance of the use of the term "premises" and not lacking such a term previously ruled to include the curtilage. For example the ruling states: "Fortunately, in Patterson's case, the issuing magistrate included terms— specifically the term "premises"—in the warrant itself setting the outer boundary of the warrant's scope at the totality of the unit of property ownership." Offender Registration: Multiple Case Decisions4/23/2016 0 Comments
But in State vs Petersen-Beard the court rules lifetime registration for sex offenders does not constitute punishment. The key difference in this case and those listed above appears to be the lifetime registration.
In State vs Charles the Court overturned a requirement to register as a violent offender ruling the Offender Registration Act is punitive due to the public disclosure requirements. As a result the offenders requirement to register was overturned because Apprendi applies if offender registration is punitive, thus requiring the decision to register to be made by the trier or fact, in this case a jury. However, the judge made the determination on registration in this case. 0 Comments Anticipatory Search Warrant: State vs Mullen4/23/2016 0 Comments
State vs. Unrau Case No. 114234 In yet another split decision (2-1), the Kansas Court of Appeals continued making it difficult to establish reasonable grounds to request a preliminary test in a DUI case. This opinion is unpublished and comes on the heals of the Supreme Court case, City of Wichita vs. Molitor 301 Kan. 251. It is uncertain if the case will be appealed to the Ks Supreme Court. 0 Comments Compelling Unencrypted Data, EncryptionCodes and/or Passwords4/4/2016 0 Comments
NICHOLS v. UNITED STATES 775 F. 3d 1225, reversed. Syllabus Opinion [Alito] This case is an appeal from a federal charge and applies to the Federal Laws on Registered Offenders. You will not the last lines in the opinion state: ". . .Both parties agree that the new law captures Nichols’s conduct. Supp. Brief for United States 3; Reply Brief 10; Tr. of Oral Arg. 18, 35. And, of course, Nichols’s failure to update his registration in Kansas violated state law. Kan. Stat. Ann. §22–4905(g). We are thus reassured that our holding today is not likely to create “loopholes and deficiencies” in SORNA’s nationwide sex-offender registration scheme."
The case summary: The Sex Offender Registration and Notification Act (SORNA) makes it a federal crime for certain sex offenders to “knowingly fai[l] to register or update a registration,” 18 U. S. C. §2250(a)(3), and requires that offenders who move to a different State “shall, not later than 3 business days after each change of name, residence, employment, or student status,” inform in person “at least 1 jurisdiction involved pursuant to [42 U. S. C. §16913(a)] . . . of all changes” to required information, §16913(c). A §16913(a) jurisdiction is “each jurisdiction where the offender resides, . . . is an employee, and . . . is a student.” Petitioner Nichols, a registered sex offender who moved from Kansas to the Philippines without updating his registration, was arrested, escorted to the United States, and charged with violating SORNA. After conditionally pleading guilty, Nichols argued on appeal that SORNA did not require him to update his registration in Kansas. The Tenth Circuit affirmed his conviction, holding that though Nichols left Kansas, the State remained a “jurisdiction involved” for SORNA purposes. Held: SORNA did not require Nichols to update his registration in Kansas once he departed the State. 0 Comments Key Mental Illness Commitment Statutes:4/1/2016 0 Comments
Attorney General Derek Schmidt has announced he has joined the attorneys general in other states in a US Supreme Court case challenging the constitutionality of criminalizing DUI test refusals. See the announcement here. See the filed brief here. 0 Comments Terry Stop3/8/2016 0 Comments
10th Circuit upholds Reasonable Suspicion for Terry Stop.
Please forward this to all law enforcement agencies and officers you have contact with. In light of the Kansas Supreme Court’s decisions today invalidating DUI criminal refusal and the implied consent advisory as written, the Attorney General’s Office, in consultation with the Kansas Department of Revenue, has created the OAG Substitute for DC-70 which should all law enforcement officers should begin utilizing effective immediately. All current forms, DC-70 (Rev. 07/2013), should no longer be used.
Gregory T. Benefiel Assistant Attorney General - Traffic Safety Resource Prosecutor Office of Kansas Attorney General Derek Schmidt 120 SW 10th Avenue, 2nd Floor Topeka, KS 66612 Office: (785) 368-6201 Cell: (785) 230-2296 FAX: (785) 291-3875 Email: Greg.Benefiel@ag.ks.gov www.ag.ks.gov
Here is an interesting case decided 12/29/15 by the 10th circuit. It involves a child pornography case where the PC affidavit for the search warrant was based on the defendant posting “sexually provocative” photos on the internet of a 10-year-old girl. The photos were not pornography and did not sexually explicit acts, but the defendant and others commented about their sexual attraction for the girl. The magistrate issued the search warrant which led to the discovery of a large amount of child pornography in his possession. The court ruled the affidavit did not justify PC because sexually suggestive photos were not in violation of the law and did not provide probable cause the defendant possessed child pornography. The did uphold the search based on the good faith rule. United States v. Edwards.
2015-017Concealed Carry in Public Buildings Topic: Firearms‒Personal and Family Protection Act; Restrictions on Carrying a Concealed Handgun; Concealed Handguns in Public Buildings Synopsis: The Personal and Family Protection Act (PFPA) does not authorize a city to adopt a “prescreen” process whereby certain members of the public may apply to be approved to bypass security measures at the public entrances to the city hall.
2015-014Criminal Use of Weapons/National Firearms Act Topic: 1. Crimes and Punishments‒Crimes Against the Public Safety‒Criminal Use of Weapons 2. Unfair Trade and Consumer Protection‒Manufacturers of Firearms, Firearms Accessories, Ammunition‒Second Amendment Protection Act; Personal Firearms, Accessories and Ammunition Manufactured in Kansas Synopsis: The defense of compliance with the National Firearms Act (NFA) is available to a person in possession of a firearm sound suppressor that is manufactured in Kansas and remains within Kansas state borders. State law requires a person to comply with the NFA if he or she wishes to lawfully possess any firearm sound suppressor in Kansas, including those that are manufactured in Kansas and remain within Kansas state borders.
2015-011Concealed Carry: Public Buildings Leased in Their Entirety to Private Entity Topic: State Departments; Public Officers and Employees‒Firearms‒Personal and Family Protection Act; Restrictions on Carrying Concealed Handgun; Liabilities; Sign RequirementsSynopsis: The definition of “state or municipal building” in the Personal and Family Protection Act (PFPA) excludes county-owned buildings leased in their entirety by private entities. A private non-profit entity that leases a county owned building is not required to install adequate security measures in order to prohibit the carrying of concealed handguns inside the building. The PFPA shields private entities from increased liability following the 2013 amendments to the PFPA.
2015-010 Open Records: Private Devices Used by Public Employees Not Subject to Open Records Topic: Public Records, Documents and Information–Records Open to the Public–Open Records Act; Certain Records Not Required to be Open Synopsis: State employees who utilize a private device and do not utilize public resources to send an email from his or her private email account (private email) are not a “public agency” as defined by the Kansas Open Records Act (KORA) in K.S.A. 2014 Supp. 45-217(f). Accordingly, their private emails are not records subject to the provisions of the KORA.
2015-009 Lotteries and Fantasy Sports NOTE: The 2015 Legislature has passed a new law that will nullify this opinion. Topic: Fantasy Sports are not lotteries under the definitions provided in 2015 HB2155. Synopsis: If fantasy sports leagues fall within the definition provided in 2015 Senate Substitute for HB 2155, then fantasy sports leagues are games of skill and therefore are not lotteries. Further, because the Legislature has the exclusive authority to legislate and may determine what conduct may be punished as a crime, we conclude that Section 19 of 2015 Senate Substitute for HB 2155 does not violate the constitution. NOTE: The 2015 Legislature has passed a new law that will nullify this opinion.
2015-005 Constitutionality of KSA 21-5419 Alexi's Law Topic: Crimes and Punishments—Crimes Against Persons—Application of Certain Crimes to an Unborn Child State Departments; Public Officers and Employees—Attorney General—Duties and Responsibilities; Authority to Prosecute and Defend Constitution of the State of Kansas—Bill of Rights—Equal Rights Synopsis: K.S.A. 2014 Supp. 21-5419(b) does not violate Section 1 of the Kansas Bill of Rights. Unless a statute is clearly unconstitutional, the Attorney General is required to defend the statute.
2015-003 Firearms: Concealed Carry: Schools, Grounds of Public Buildings, Employee's Vehicle, Regulating Firearm Storage, Gun Free School Zones, NOTE: This ruling was made prior to the July 1, 2015, change in the law allowing concealed carry without a permit. TOPIC: Cities and Municipalities‒Miscellaneous Provisions‒Firearms and Ammunition; Regulation by City or County, Limitations; State Departments; Public Officers and Employees‒Firearms‒Personal and Family Protection Act Synopsis: The Personal and Family Protection Act (PFPA) allows state and municipal buildings, public schools, public post-secondary institutions, state or municipal-owned adult care homes, community mental health centers, indigent health care clinics, state or municipal-owned medical care facilities, the Kansas State School for the Deaf and the Kansas State School for the Blind to regulate, restrict or prohibit concealed carry inside those institutions’ buildings. The PFPA does not permit a city, county or other political subdivision to regulate, restrict or prohibit concealed carry on the grounds of public buildings. A public employer may not prohibit an employee from storing a firearm in the employee’s personal vehicle, even while the vehicle is on the employer’s premises. K.S.A. 2014 Supp. 12-16,124(a) generally prohibits cities and counties from regulating the carrying or storage of firearms, but K.S.A. 2014 Supp. 12-16,124(d) allows a city or county to adopt an ordinance, resolution, regulation or personnel policy consistent with the PFPA. The federal Gun-Free School Zones Act (GFSZA) prohibits a person without a valid concealed carry license from carrying a firearm inside a school zone. A person with a valid Kansas concealed carry license may carry a firearm into a school zone without violating the GFSZA, but the PFPA still allows public school districts to prohibit concealed carry by posting signage on a school district building. The extent to which a person possesses a constitutional right to carry a firearm in public is unclear following the United States Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. City of Chicago. 0 Comments US Supreme Court Decision: CHADRIN LEE MULLENIX v. BEATRICE LUNA11/16/2015 0 Comments
This case stems from a civil action against an officer for excessive force and illegal seizure of a person who was shot by an officer in an attempt to end a pursuit. See the ruling here. It is important to note the court decided only the issue of qualified immunity in a civil case, and does not address whether a 4th amendment violation occurred.
The 4th Circuit Court of Appeals recently ruled a search warrant is required to obtain location data from cell site tickets (thankfully not a court ruling applying to Kansas). But will this become the prevailing rule? Only time will tell. Read the summary in the Xiphos August Newsletter.
An article by FLETC on Reasonableness and Post-Riley Smartphone Searches can be found in the August issue of The Informer from the Federal Law Enforcement Training Center.
The 10th Circuit decided two cases from Oklahoma dealing with search and seizure.
The first case involves upholding the search of a car after a traffic stop was completed and a drug dog gave a hit on the car. Illegal firearms were found. See the opinion on US vs. Moore.
The second case also involves a traffic stop and a search of a vehicle based on the smell of burnt marijuana. Again the legality of the search was upheld. See the opinion on US vs. Snyder.
The Aug. 2015 issues of AELE's three periodicals have been uploaded. [The current issues, back issues since 2000, case digests since 1975, and a search engine are FREE. Everyone is welcome to read, print or download AELE publications without charge. The main menu is at: http://www.aele.org/law]
*** Law Enforcement Liability Reporter *** This issue has cases on assault & battery, ECWs, false arrest, firearms related, policy liability, dead body handling, racial profiling, and search & seizure. View here.
*** Fire, Police & Corrections Personnel Reporter *** This issue has cases on arbitration, prescriptive drug abuse, FMLA, First Amendment, handicap discrimination, homosexual employee rights, patronage employment, retaliatory personnel actions, sex discrimination, and whistleblower protection. View here.
In this case a traffic stop was made (bicycle without a light at night). The bicyclist was in possession of a firearm and the officer removed a bag the bicyclist revealed contained a firearm from the bicyclist’s shoulder and put it on the hood of the car. The firearm apparently was unloaded and therefore was not a violation of Utah's concealed carry law. The officer then ran a warrants and records check and found a prior conviction for drugs and several other arrests without a conviction. The officer then spoke to the bicyclist further, and the bicyclist admitted he was a current drug user, which prohibits him from possessing a firearm under federal law. The court ruled the officer had no “particularized and objective basis to suspect that he might be engaged in criminal activity.” The court ruled the officer extended the stop in violation of the 4th amendment and suppressed the evidence.
NOTE: Check with your legal staff for advice on how this decision may impact your operational procedures.
US Supreme Court sidestep of ADA application to law enforcement when dealing with person taken into custody.
11th Circuit (GA, AL, FL) ruling that search warrants for historic cell site data are not necessary upholding the obtaining of a court order for a cell phone carrier’s business records was not a search under the Fourth Amendment.
A Kansas case (State v Vrabel) on local law enforcement jurisdiction.
The Kansas Supreme Court ruled today the Kansas Highway Patrol is responsible for the medical bills owed to KU Med Center for treatment of a person taken into custody by the Highway Patrol.
SYLLABUS BY THE COURT 1. The plain language of K.S.A. 22-4612(a) imposes a duty on the Kansas Highway Patrol to reimburse a health care provider for services provided to an indigent person in the custody of the Kansas Highway Patrol. K.S.A. 22-4612(a) supersedes the holding in Wesley Med. Center v. City of Wichita, 237 Kan. 807, 703 P.2d 818 (1985), which rejected custody as the touchstone for determining if a law enforcement agency must pay for a prisoner's medical treatment. 2. Under K.S.A. 22-4612(a), the obligation of one of the statutorily specified governmental entities, such as the Kansas Highway Patrol, to pay for the medical expenses of an indigent criminal offender is initially triggered by the entity having custody of the indigent offender at the time the decision is made to obtain medical treatment for the offender. 3. A person is in custody when under arrest, although arrest might not always be necessary to establish custody.
The US Supreme Court has ruled 9-0 cell phones are not subject to a search incident to arrest and require a search warrant absent exigent circumstances. The ruling comes from two cases: Riley v. California From the Ninth Circuit (California) and United States v. Wurie From the First Circuit (Massachusetts). The following are articles on the decisions:
Administrative Actions by ABC Based on Local Law Enforcement Report Overturned Katie's Bar and Grill v. ABC Decided on June 27, 2014 In this case, the Kansas Court of Appeals ruled the ABC cannot take administrative enforcement action based on local law enforcement reports because the statute requires an immediate issuance of complaint by the ABC at the time the violation occurs. This likely will mean no administrative enforcement based on local law enforcement reports until a legislative change is made to the statutes. Look for more information coming from the ABC.
NOTE: The 2015 Legislature is Working on Legislation to Fix This
KU Med v Wabaunsee County Decided on June 27, 2014 County not required to pay because injured person was in temporary (investigative) custody and not committed to or held in jail at time of his injuries. Those injuries were self-inflicted by jumping from a fourth floor window but that was not a factor in the decision. This case has some unique circumstances but seems to have some good precedence for us.
You might want to also keep in mind a decision from the Kansas Court of Appeals in KU Med v Wyandotte County and KHP decided on 9/13/2013. In that case they ruled the agency arresting a person, not the county jail, is responsible for the medical bills incurred before the person is received by the jail. A major difference in that case compared to KU Med v Wabaunsee County is that the injured party was actually arrested for a crime (from a vehicle pursuit and crash). This case overturned a prior Kansas Supreme Court decision in Wesley Medical Center v Wichita, a 1985 case occurring before the legislature enacted KSA 22-4612. NOTE: On June 22, 2015, The KS Supreme Court upheld the decision of the Appellate Court in KU Med vs Wyandotte County vs. KHP.See the Ks Supreme Court Ruling on that case here.
In US vs. Fonseca the court looked at the reasonableness of the length of a Terry Stop. See the summary and link to the full opinion here. This case probably doesn't break much new ground for us, but the summary at the link above are interesting reading shedding light on how the US Circuit Court over Kansas looks at these issues.
Decided in March 2014 In US vs. Mosley the court looked at the thin line between when the pointing of your weapon at a suspect creates a 4th Amendment seizure and when it does not. See the summary and link to the full opinion here.
This case probably doesn't break much new ground for us, but the summary at the link above is interesting reading shedding light on how the US Circuit Court over Kansas looks at these issues.
NOTE: Remember these cases are decided on the totality of circumstances, so this case should not be taken as a blanket approval of any 911 call being sufficient for a car stop in all circumstances. But it is an interesting case. See a short case summary here.
Kansas Supreme Court, State vs. Stevenson. Updated by Court 3/31/2014 "In short, the totality of the circumstances in this case only establishes that the officers' observation of a very strong odor of alcohol emanating from within the vehicle, which they suspected to be the result of spilled alcohol, provided them with reasonable suspicion to extend the traffic infraction detention to further investigate whether Stevenson was transporting an open container of alcohol in violation of K.S.A.2013 Supp. 8-1599.The officers' failure to acquire additional inculpatory facts relating to the crime being investigated before commencing their search of the vehicle rendered the search unreasonable and unlawful." Read the statute on transporting an open container, KSA 8-1599, here.
US vs. Castleman Decided by USSC on 3/26/14 Possession of Firearm after conviction for a misdemeanor crime of domestic violence
The court found Castleman's conviction of misdemeanor battery "intentionally or knowingly causing bodily injury to" the mother of his child was indeed a "misdemeanor crime of domestic violence" and applicable to his possession of a firearm under 18 USC §922(g)(9).
Castleman’s conviction qualifies as a “misdemeanor crime of domestic violence.”
The court appears to rule a person with "common authority" of property may consent to a search even after the objection of another person with "common authority" of the property, provided the objecting party is no longer present and even if the objecting party is not present due to their lawful detention or arrest by law enforcement. "We therefore hold that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason." (Page 10)
CAUTION: Officers should not abuse this authority by creating the absence of the objecting party only for the purpose of furthering their ability to gain consent to search. The authority under Fernandez hinges on the lawful detention or arrest. It appears that infers if the court would later determine the detention or arrest was unlawful, the search would also likely be unlawful. That suggests an arrest or detention that would otherwise not have been made should not be used to create the absence of the objecting party.
An excellent summary of the Federal Hatch Act (Political involvement of state and local government employees) as revised in 2012. Document at this link.
Tracking Devices NOTE: The 2013 Legislature passed new statutes on search warrants to provide specific processes for GPS warrants. Modifications to other search warrant laws were also made.
In United States v. Antoine Jones, the Supreme Court unanimously restricted law enforcement’s ability to attach a GPS tracking device to a suspect’s vehicle to track their movements. In doing so, the Court rejected the government’s view that long-term surveillance of a suspect by GPS tracking is no different than traditional, low-tech forms of monitoring. Read the entire opinion here: http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf.
Are you unclear about the what probable cause and reasonable suspicion mean? These are terms that law enforcement, prosecutors, and even the courts find difficult to clearly define. See this article from Police Magazine on the topic.