Can't Frisk Based On Domestic Violence Alone

A police report of "domestic violence" does not, by itself, give justification for the police to frisk a person for weapons.

 

Thomas v. Dillard, 2016 BL 106710, 9th Cir., No. 13-55889, 4/5/16

     The Ninth Circuit Court of Appeals ruled that a simple report of "domestic violence" cannot automatically give rise to a reasonable suspicion to frisk because domestic violence involves a broad array of crimes, many of which do not necessarily involve weapons.

     This is different from other crimes, like bank robbery or drug trafficking, which almost always involve weapons and automatically give investigators sufficient reasonable suspicion to stop and frisk.

http://www.bloomberglaw.com/public/desktop/document/Thomas_v_Dillard_No_1355889_2016_BL_106710_9th_Cir_Apr_05_2016_Co?1462979570

Suggestion Not Custodial Seizure

A suspect was not in police custody, and did not need to be Mirandized, just because officers suggested that it would be a good idea for him to come with them and to be honest.

 

Spencer v. United States, 2016 BL 63376, D.C., No. 13-CF-0085, 3/3/16

     The D.C. Court of Appeals determined that a reasonable person in the suspect's shoes would have felt free to leave regardless of the officers' statements, because he "was still permitted to use his cell phone, he was never handcuffed, and he was told multiple times that he was not under arrest."

     Just because officers told the suspect that he "needed" to come with them to the station and later said "if  you want to walk out of here, you got to be honest" does not mean that the suspect was in custody. Because he was not in custody he did not need to be read his Miranda rights. The police did not assert authority to get his compliance, rather, it seemed that the suspect's decision to go with his girlfriend to the station was "precipitated by his desire to support his girlfriend."

http://www.bloomberglaw.com/public/desktop/document/Spencer_v_United_States_No_13CF0085_2016_BL_63376_DC_Mar_03_2016_/1?1458312772

Cop Request Determined To Be 'Command'

A man was effectively seized when he refused to consent to a search and the police "asked" him to exit his legally parked vehicle.

 

Sharp v. United States, 2016 BL 45032, D.C., No. 13-CM-951, 2/18/16

     It was clear that refusal was not a real option for the Devon Sharp. Therefore, when the police "asked" him to exit his car, it was really a command, amounting to a seizure under the Fourth Amendment. This case clarifies that such requests will be treated as commands when a reasonable person would, under the circumstances, believe that he had to comply.

     The court stated, quoting Florida v. Bostick, that "in the absence of any sign that a reasonable person in these circumstances would believe the officer was giving him a genuine choice to decline the request and stay in the car, we conclude that the police here 'convey[ed] a message that compliance with their request[] [was] required'."

     The court also noted that nothing that Sharp had been doing gave rise to reasonable suspicion, and did not justify his detention. Merely listening to loud music and appearing to be nervous is not enough.

http://www.bloomberglaw.com/public/desktop/document/Sharp_v_United_States_No_13CM951_2016_BL_45032_DC_Feb_18_2016_Cou?1457369927

Massachusetts Supreme Court Differs from SCOTUS Over Anonymous Tip

An anonymous tip about an apparent drunk driver does not, by itself, give the police reasonable suspicion to conduct an investigatory stop of the suspected motorist.

 

Commonwealth v. Depiero, 2015 BL 435626, Mass., No. SJC-11893, 1/4/16

    An anonymous tipster called 9-1-1 and complained about an apparently drunk driver.  The Massachusetts Supreme Court ruled that this, by itself, did not give the police reasonable suspicion to conduct an investigatory stop of the suspected drunk driver.

    The court's decision does not follow the U.S. Supreme Court's decision in Navarette v. California, which says that anonymous calls are normally reliable because caller ID technology makes prank calls unlikely. In this case, the court indicated that caller ID technology is irrelevant if the caller does not know about it, and a tipster might instead be a prankster.

http://www.bloomberglaw.com/public/document/Commonwealth_v_Depiero_No_SJC11893_2015_BL_435626_Mass_Jan_04_201

'Seizure' Only After Driver Obeyed Police Orders

A seizure does not occur until a suspect actually capitulates to a show of authority.

 

United States v. Stover, 2015 BL 416751, 4th Cir., No. 14-4283, 12/18/15

    A driver exited his truck and threw a pistol into the grass before he complied with the police officer's command to return to the vehicle. The Fourth Circuit Court of Appeals ruled that he abandoned the weapon before he was "seized" for purposes of the Fourth Amendment.

    The court indicated that a seizure does not occur until a suspect actually capitulates to a show of authority, and the defendant did not submit until he had already ditched the pistol. The court did not accept the defendant's argument that the pistol was the fruit of an illegal seizure because the police seized him without reasonable suspicion when they pulled up behind his truck, turned on their lights, and blocked him from driving away.

    The court hearkened to the ruling in California v. Hodari D., 499 U.S. 621 (1991), which held that a police officer's "show of authority" does not, alone constitute a Fourth Amendment seizure unless and until the suspect submits. Here, the court rejected the proposition that anything short of headlong flight qualifies as submission and ruled that merely remaining at the scene does not qualify as submission.    

    The court stated that because the defendant gave no indication that he was submitting until after he discarded the pistol, he was not "seized" until he did indicate submission. "Only after he discarded that gun and was confronted by an armed police officer did Stover submit to police authority," the court said.