Cops Can't Use Dog on Suspect Who Ceased Fleeing

Police may be held liable for having a police dog attack a man after he had surrendered and put his hands in the air.

 

Alicea v. Thomas, 2016 BL 60723, 7th Cir., No. 15-1255, 3/1/16

     The Seventh Circuit Court of Appeals ruled that, if a jury believes that the man had surrendered, the police may be liable for siccing their dog on him. The court here clarifies that the police cannot assume that a surrendering suspect continues to pose a threat in order to justify using extreme force.

     The court added that "[t]he sole fact a suspect has resisted arrest before cannot justify disregarding his surrender in deciding whether and how to use force."

http://www.bloomberglaw.com/public/desktop/document/Alicea_v_Thomas_No_151255_2016_BL_60723_7th_Cir_Mar_01_2016_Court?1457716591

No Qualified Immunity For "Objectively Unreasonable" Tasing

Police officers will not be granted immunity for using a taser on a person who is unarmed and is not told he is under arrest, because that tasing was objectively unreasonable.

 

Kent v. Oakland County, 2016 BL 1955, 6th Cir., No. 14-2519, unpublished 1/6/16

    Deputies tased a man who was trying to stop the resuscitation of his naturally deceased father (who had previously expressed a desire that no such efforts be made). This tasing was "objectively unreasonable" and violated law that was clearly established in 2010. The U.S. Court of Appeals for the Sixth Circuit ruled that the deputies are, therefore, not entitled to qualified immunity and the man's civil rights claim main proceed.

    It was undisputed that the victim "was unarmed and made no evasive movements to suggest he had a weapon" before being tased. Also, he was never told that he was under arrest.

http://www.bloomberglaw.com/public/desktop/document/Kent_v_Oakland_County_No_142519_2016_BL_1955_6th_Cir_Jan_06_2016_?1453485740

Dog-Sniff Illegal on Curtilage Even if Officer Hangs Back

Evidence ruled inadmissible when the drug dog alerted near a suspect's apartment window even though the officer let the dog roam off leash while he stayed outside the curtilage.

 

United States v. Burston, 2015 BL 384510, 8th Cir., No. 14-3213, 11/23/15

    In this case the officer let the dog off the leash to sniff around while he remained outside of the curtilage by being six feet away from the apartment window. The Eighth Circuit Court of Appeals ruled that the search violated the rules laid out in Florida v. Jardines.

    The court stated that "cases preceding Jardines support the proposition that a police officer cannot invade a homeowner's curtilage by bringing a dog six to ten inches from a resident's window for the purpose of gathering evidence without a warrant."

    The court determined that the action in this case is different from action permitted in a common area. The court stated that "the area searched in this case was within six to ten inches of Burston's window, that is to say, an uncommon area."

    The ruling indicates that it is the location of the dog that matters. The argument that there is no Fourth Amendment violation so long as the officer stands "in a lawful location" while the dog invades the curtilage unlawfully is incorrect.

http://www.bloomberglaw.com/public/desktop/document/United_States_of_America_Plaintiff__Appellee_v_Democrus_Pernell_B?1451402638

Police Not Caretakers During Manhunt

Community caretaking exception will not grant qualified immunity to police officers for a warrantless entry into a home while hunting down a robbery suspect.

 

Matalon v. Hynnes, 2015 BL 379728, 1st Cir., No. 15-1372, 11/18/15

    Police officers were chasing a robbery suspect and a witness directed the police officers to a home where they arrested the occupant. The occupant was not involved with the robbery and sued the officers. The officers claimed that the community caretaker exception applied to them, the court ruled that it did not.

    The First Circuit Court of Appeals said that the community caretaking exception to the Fourth Amendment's protections has become a "catchall for the wide range of possibilities that police officers must discharge aside from their criminal enforcement activities."    

    The community caretaking exception does not apply in this case because the officers' search was not "aside from their criminal enforcement activities" because it was that exact activity. The standard for this activity is that "[a]n objectively reasonable officer should have known that a warrantless entry into the plaintiff's home could not be effected on the basis of the community caretaker exception."

http://www.bloomberglaw.com/public/desktop/document/Matalon_v_Hynnes_No_151372_2015_BL_379728_1st_Cir_Nov_18_2015_Cou?1451317442

Feds Protected By Qualified Immunity In Arrest of State Cops

Qualified immunity is granted in a civil rights lawsuit to federal agents who arrested every state cop at the scene of a fake drug raid, to then later sort out which suspects stole the "bait" items.

 

Callahan v. Unified Gov't of Wyandotte Cty./Kan. City, 2015 BL 376394, 10th Cir., No. 14-3717, 11/16/15

    The U.S Court of Appeals for the Tenth Circuit granted qualified immunity to the federal officers even though the arrests were made with blanket suspicion, not specific individual suspicion, that some of the group had stolen items.

    The plaintiffs cited Ybarra v. Illinois, 444 U.S. 85 (1979), where the U.S. Supreme Court held that a warrant to search a public bar for evidence of drug deals did not allow the officers to search all of the patrons only because of their "mere propinquity" to those already suspected. Ybarra requires particularized probable cause.

    To differentiate from Ybarra, the court looked to Maryland v. Pringle, 540 U.S. 366 (U.S. 2003), which upheld the detention and search of everyone in a car (not just the driver) on the reasonable conclusion that everyone in the small space was likely involved in a common criminal enterprise.

   However, the court indicated that Pringle raises more questions than it answered, and that its impact on the Ybarra analysis open for debate. Because of this ambiguity, the court concluded that the arresting officers had not violated the Ybarra standard saying, "[w]e cannot ask officers to make a legal determination-that law professors probably could not agree upon-without any guidance from the courts and then hold them liable for guessing incorrectly."

http://www.bloomberglaw.com/public/desktop/document/Callahan_v_Unified_Govt_of_Wyandotte_CtyKan_City_No_143171_2015_B?1450892372

Illegal Trash Pull Does Not Lead To Suppression

Evidence suppression is not the remedy for an illegal trash pull in this case of a warrantless search outside of the police's territorial jurisdiction.

 

State v. Robinson, 2015 BL 366572, Kan., No. 90,196, 11/6/15

    The Kansas Supreme Court ruled that there was no evidence that the "otherwise lawful trash pull" was committed by police officers from outside of the jurisdiction. Also, if it were committed by police from another jurisdiction, the statutory limits placed on police officers' authority are designed to protect neighboring jurisdictions, and not give any particular defendants any additional substantive rights.

    Though the evidence was not suppressed, the Court rejected the state's argument that the officers were acting as private citizens, and were therefore not acting under the territorial jurisdiction of their office. The court "doubt[ed] seriously" that private citizens "could wield sufficient influence to secure the cooperation and assistance of a private trash contractor in such endeavors for weeks on end."

http://www.bloomberglaw.com/public/desktop/document/STATE_OF_KANSAS_AppelleeCrossappellant_v_JOHN_E_ROBINSON_SR_Appel?1450112350

Peace Officer's Qualified Immunity Reinstated by SCOTUS

Assumption that the police officer acted unreasonably is not 'beyond debate.'

 

Mullenix v. Luna, U.S., No 14-1143, cert. granted, reversed 11/9/15, per curiam

    During a late-night high-speed chase, a police officer shot and killed the driver of the escaping vehicle. The driver was shot four times. The police officer, shooting from an overpass, claimed to have been aiming for the engine block of the speeding vehicle.

    The Fifth Circuit Court of Appeals agreed with the district court that the officer's actions were not proper because the threat was not great enough to justify deadly force.

    The Supreme Court held that "whatever can be said of the wisdom of Mullenix's choice, this Court's precedents do not place the conclusion that he acted reasonably in these circumstances 'beyond debate.'"

Court Approves Suspicion-free DNA Testing of Officers.

It is reasonable, under the Fourth Amendment, to compel the collection of DNA from police officers in order to eliminate them as possible sources of crime scene contamination.

 

Bill v. Brewer, 2015 BL 280656, 9th Cir., No. 13-15844, 8/31/15

    The Ninth Circuit indicated that the effort to exclude the officers as contributors of DNA is justification enough to conduct buccal swabs. The opinion ruled that a specific warrant was not required because court orders satisfy the Fourth Amendment warrant requirement.

    The court determined that "excluding public safety personnel as the source of DNA would plainly 'aid in' the conviction of an eventual criminal defendant, by negating any contention at trial that police had contaminated the relevant evidence." This means that it did not matter that the plaintiffs in this case were police officers, and not suspects.

    The level of intrusion here is not disproportionate to the likely benefits. The court indicated that it was reasonable for the state to "ask sworn officers to provide saliva samples for the sole purpose of demonstrating that DNA left at a crime scene was not the result of inadvertent contamination by on-duty public safety personnel."

http://www2.bloomberglaw.com/public/desktop/document/Bill_v_Brewer_No_1315844_2015_BL_280656_9th_Cir_Aug_31_2015_Court

Forced Departure Deemed 'Seizure' Due to Rough Handling.

When an officer roughly grabs a person, an order to depart becomes a Fourth Amendment seizure.

 

Salmon v. Blesser, 2015 BL 292438, 2d Cir., No. 14-1993-cv, 9/10/15

    The Second Circuit Court of Appeals said that, though the use of physical force to restrain someone and control their movements may or may not be reasonable under the circumstances, it still constitutes a seizure. Circuit precedent indicates that an order to leave, by itself, is not a seizure. The precedent even indicates that if the person is escorted by an officer as they leave, gives gentle physical guidance, or bars reentry, it is not a seizure.

    However, in this lawsuit the officer grabbed the plaintiff by the collar and twisted his arm behind his back. The court ruled that this was "intentionally restraining and controlling" the plaintiff's movements, and was elevated to the level of a Fourth Amendment seizure.

http://www2.bloomberglaw.com/public/desktop/document/Salmon_v_Blesser_No_141993cv_2015_BL_292438_2d_Cir_Sept_10_2015_C