Highlights of This Issue

United States Supreme Court Action

Court Reaffirms the Totality of the Circumstances Test for Establishing Reasonable Suspicion for an Investigative Stop.

United States v. Arvizu, 122 S.Ct. 744, 2002 WL 46773, No. 00-1519 (2002).

A federal Border Patrol agent stopped a minivan carrying two adults and three children on an unpaved road in a remote area of southern Arizona. The van was found to be carrying 128 pounds of marijuana.In affirming a trial court suppression of evidence, the Ninth Circuit Court of Appeals broke down the facts known to the agent into 10 separate components, including the fact that the minivan's driver slowed abruptly when he saw the border patrol car, avoided eye contact with the agent, and the fact that children in the backseat of the minivan waved at the agent in a mechanical manner, as if they had been instructed to do so.

The Ninth Circuit ruled that the facts were either irrelevant or innocuous and were "insufficient to give rise to reasonable suspicion."

On appeal to the Supreme Court, the Court reversed in a unanimous decision and an opinion written by the Chief Justice. The Court ruled that in evaluating whether "reasonable suspicion" exists for a police officer to detain a suspect briefly for questioning, courts should pay more attention to the officer's experience and the event's overall context than to possibly innocent explanations for individual parts of the incident. It said the Ninth Circuit's approach was inconsistent with the Court's precedents that required reasonable suspicion to be based on the "totality of the circumstances," and not isolated facts.

The Court said the agent "was entitled to make an assessment of the situation in light of his special training and familiarity with the customs of the area's inhabitants. We think it quite reasonable that a driver's slowing down, stiffening of posture, and failure to acknowledge a sighted law enforcement officer might well be unremarkable in one instance (such as a busy San Francisco highway) while quite unusual in another (such as a remote portion of rural southeastern Arizona)." It noted that the road defendant was on was only 30 miles north of the Mexican border and was commonly used by smugglers of aliens and narcotics who wanted to avoid a checkpoint on a parallel major highway.

The Court concluded that while police officers should base investigative stops on more than a "hunch," a police officer does not have to exclude facts simply because there is a possibility that an innocent explanation exists for particular conduct.

Federal and State Decisions

Arrest, Search and Seizure

"Knock and Talk" Procedures: Constitutionality; Consent

Scott v. State, 782 A.2d 862 (Md. 2001).

State. A "knock and talk" procedure whereby police officers randomly knocked on motel room doors at 11:30 P.M. to question occupants in hopes that they would allow the police to enter and ultimately consent to a search, did not violate the Fourth Amendment or a state constitutional provision, even though the procedure was carried out in the absence of suspicion or probable cause. The defendant-occupant was not awakened by the officers' knock, he and his girlfriend were up, the television set was on, and a hot tub was running, the police identified themselves before defendant opened the door, and the police merely asked, not demanded, that defendant open the door and talk to them.

"There was no Fourth Amendment seizure in this case. There was a knock--perhaps a loud knock, but not a sustained or persistent one. Scott, though allegedly startled, was not awakened by it; he and his girlfriend were up, the television set was on, and the hot tub was running. The police identified themselves before Scott opened the door, and they merely asked, not demanded, that he open the door and talk with them. We are not prepared, alone among courts . . . to find every late-night 'knock and talk' encounter a Fourth Amendment seizure, without regard to all other relevant circumstances."

The court went on to rule that defendant's consent to search his motel room was voluntary. It considered evidence showing no police overbearing or even impoliteness, the entire incident, from knock to completion of the search, took only two to three minutes, defendant was not inexperienced in that he had previously been convicted of a drug offense, and his own testimony indicated an awareness on his part that he could have refused entry to the police.

Traffic Stop: Racial Profiling; Inability to See Driver

United States v. Villanueva, 157 F.Supp.2d 1184 (D.Kan. 2001).

Federal. A defendant was not racially profiled for investigation by a deputy sheriff based on his Hispanic ancestry, where the deputy was unable to see the characteristics of the driver prior to making a traffic stop, due to the fact that the vehicles were traveling in opposite directions on a divided highway at night.

"Defendant asserts Deputy Knowles targeted him for investigation based on his Hispanic ancestry. Reflecting a national trend, racial allegations are made in an alarmingly high number of cases before this court. The implication and veracity of such allegations is now the product of national debate. In this case, however, the allegation is remarkably lacking in merit. There is absolutely no indication defendant's ethnicity motivated Deputy Knowles. In fact, Deputy Knowles testified he was unable to discern any charateristics about the vehicle's driver before he initiated the traffic stop. Considering the vehicles were traveling in opposite directions on a divided highway at night, defendant has offered no justification for discrediting Deputy Knowles's testimony. Therefore, the court summarily dismisses this allegation, and suppression will be denied as to this issue."

Interrogation

Miranda: Public Safety Exception; Need to Locate Gun

United States v. Catrett, 55 M.J. 400 (2001).

Federal. The custodial questioning of a defendant by the police in his apartment without required Miranda warnings was justified under the "public safety" exception to Miranda, where the police were responding to a domestic-assault complaint in which a gun was reportedly involved, an empty holster was found during a search of the apartment before the questioning, and the questions were a legitimate attempt by the police to locate the still-missing gun.

"The Supreme Court in New York v. Quarles, 467 U.S. at 657-58, 104 S.Ct. 2626, recognized a narrow exception to the Miranda-warnings' requirement with respect to questioning a suspect in custody. It said: 'We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rules protecting the Fifth Amendment's privilege against self-incrimination. . . . '

"In appellant's case the civilian police were responding to a domestic-assault complaint in which a gun was reportedly involved. . . . Although appellant denied using a gun, an empty holster was also found during a search of appellant's apartment before the challenged questioning. . . . Finally, the questions asked by the police, although phrased in terms of the cause of the reported assault, were found by the judge to be legitimate attempts by police to locate the still missing gun. . . . We agree with the appellate court below that the public-safety exception to Miranda applied in these circumstances."

Civil Liability / Personnel Law

Deadly Force and Police Pursuit: Shooting at Fleeing Vehicle; Good Faith Defense

Vaughan v. Cox, 2001 U.S. App. LEXIS 19417 (11th Cir. 2001).

Federal. A county sheriff's department received an early morning report that a red pickup truck with a silver tool box in its bed had been stolen from a service station along a highway, and that the suspect, a white male wearing a white t-shirt, was believed to be heading north on the highway. In response, two deputies headed to the northbound lanes of the highway in separate vehicles, and ultimately observed a red pickup. While tracking the truck, the deputies made efforts to determine whether the vehicle was indeed the stolen truck. When the truck started to speed away, after one deputy had clearly indicated to the occupants that he wanted them to stop, the deputies gave chase, and one deputy ultimately fired three shots into the truck, which struck a passenger in the truck, leaving him paralyzed.

A federal appeals court overturned summary judgment for the defendant county, finding that a reasonable jury could find the shooting to be in violation of the passenger's constitutional rights. The alleged crime was auto theft, and there was no claim that the officers believed the occupants to be armed, or that any shots had been fired at the officers. The shooting of the passenger could be found to be an illegal seizure in violation of the Fourth Amendment.

At the same time, the court also ruled that the defendant deputy was entitled to qualified immunity because a reasonable officer could have believed that the suspects in the truck, fleeing down a major highway at speeds in excess of eighty miles per hour, and apparently not about to stop, posed a threat of serious harm to the drivers and occupants of other vehicles. While the deputy may have been mistaken in the belief that he had grounds to use deadly force, "we cannot say that a reasonable officer" in his position "could not have believed" that such grounds existed, the court said.

Police Plaintiff: Fireman's Rule; High Speed Pursuit; Intentional Conduct of Motorist

State Farm v. Hill, 775 A.2d 476 (Md.App. 2001).

State. An appellate court held that the Fireman's Rule did not preclude police officers from recovering against a motorist for the motorist's actions which were intended to cause harm, in a case arising from an incident in which the motorist stole a vehicle, engaged in a high-speed chase, and struck the officers' vehicles during a rolling roadblock. There was dicta in prior cases in the state that the application of the Fireman's Rule to protect the motorist would not be appropriate, and the court said there were no conceivable public policy reasons why persons who intentionally cause harm to police officers should be protected by the Rule.

". . . it is a basic tenet of the common law that persons who intentionally cause harm to others should be held responsible for their actions. Thus, a criminal should not be protected civilly from the consequences of his wrongdoing. . . . we can see no conceivable public policy reasons why persons who intentionally cause harm to public safety officers should be protected by the fireman's rule. . . ."

Sexual Harassment: Teasing; Immature Conduct Not Based on Sex

Toth v. Ohio Dept. of Youth Serv., 754 N.E.2d 305 (Ohio Ct.Cl. 2001).

State. The conduct of the security administrator and other employees at a juvenile correctional center in teasing a correctional officer after seeing a photograph of the officer's work-related injuries, in which a portion of the officer's penis was displayed, and in making comments as to whether the officer was still a friend and whether he had enough food, did not support the officer's hostile environment sexual harassment claim. The court said the conduct was not based on sex, but on the fact that the officer was the one in the photograph, and teasing was no more than a juvenile expression of provocation.

"Certain vulgar expressions often have 'no connection with the sexual acts to which they make reference * * * [and] they are simply expressions of [personal] animosity or juvenile provocation' rather than discrimination based on sex. Thus, '[al]though explicit sexual content or vulgarity may often take a factfinder a long way toward concluding that harassing comments were in fact based on gender, * * * this need not necessarily be the case.' Hampel, 89 Ohio St.3d at 180, 729 N.E.2d at 735, quoting Johnson v. Honda, Inc. (C.A.7, 1997), 125 F.3d 408, 412. Cf. Shepherd v. Slater Steels Corp. (C.A.7, 1999), 168 F.3d 998, 1010-1011."