Preventing Defendant From Entering His Home for Two Hours While Police Obtained a Search Warrant for Drugs Did Not Violate the Fourth Amendment.

An Illinois intermediate appellate court ruled that where the police secured defendant's residence for approximately two hours while awaiting a search warrant for drugs as to which they had probable cause to believe defendant had hidden in his residence, and refused to allow defendant into the residence after he came out of the residence onto the front porch, unless accompanied by an officer, to prevent removal or destruction of evidence, this was an unreasonable seizure under the Fourth Amendment. The Illinois court ruled that evidence discovered in the residence upon execution of the search warrant had to be suppressed. 304 Ill.App.3d 395, 713 N.E.2d 93 (1999).

On appeal by the State of Illinois to the United States Supreme Court, the Court reversed 8-1 in a decision written by Justice Breyer. Balancing the state's interest, the nature of the intrusion, and what the Court considered to be the brevity of the seizure, the Court concluded that the police conduct was reasonable under the Fourth Amendment. Although personal property seizures are ordinarily unreasonable unless accomplished pursuant to a warrant, there are exceptions to this rule involving special law enforcement needs, diminished expectations of privacy, minimal intrusions, and the like.

The Court considered the following circumstances, in combination, and concluded that the police restraint was reasonable, and hence lawful. (1) The police had probable cause to believe that defendant's home contained evidence of a crime and unlawful drugs. (2) They had good reason to fear that, unless restrained, defendant would destroy the drugs before they could return with a warrant. (3) They made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy by avoiding a warrantless entry or arrest and preventing defendant only from entering his home unaccompanied. And (4) they imposed the restraint for a limited period, which was no longer than reasonably necessary for them, acting with diligence, to obtain the warrant.

The Court noted that in no prior case had it held unlawful a temporary seizure that was supported by probable cause and was designed to prevent the loss of evidence while the police diligently obtained a warrant in a reasonable period of time.

Justice Souter filed a concurring opinion. Only Justice Stevens dissented. He argued that the court below had correctly "placed a higher value on the sanctity of the ordinary citizen's home than on the prosecution of this petty offense," possession of drug paraphernalia and a small quantity of marijuana, both misdemeanors under Illinois law.

Outrageous Conduct: Giving a Drug Addict Defendant a Small Amount of Drugs

State. An undercover police officer's conduct in giving defendant, a drug addict, a small amount of cocaine the officer had purchased in order to aid the progress of the undercover investigation was not so outrageous as to violate defendant's due process rights. The court said that the officer's actions did not warrant dismissal of unlawful delivery of controlled substance charges, where defendant had insisted that the officer give him some drugs for introducing the officer to a drug dealer, defendant was only given cocaine after the purchases were completed, and there was no evidence that defendant was reluctant to commit the offense.

This court recognized the outrageous-conduct defense as distinct from an entrapment defense because, while the entrapment defense looks to the state of mind of the defendant in order to determine whether he or she was predisposed to commit the crime being prosecuted, the outrageous-conduct defense looks at the government's behavior.

Civil Liability: Strip Search; Misdemeanor; Good Faith Immunity

Federal. A female arrestee for a misdemeanor noise violation had a right to be free from public exposure, touching, and penetration of her genital area and kneading of her buttocks during a search conducted in public view and incident to her arrest, where there was no security risk or threat of the concealment or destruction of evidence. Since this right was clearly established at the time of the search, the officer who allegedly conducted the search of the arrestee in such a manner was not entitled to summary judgment in the arrestee's civil rights law suit on qualified immunity grounds.

State. An alleged victim who brought a civil rights action against a city, the city mayor, and the city police chief in connection with a rape purportedly committed by a city police officer, failed to show that the alleged rape was the result of a municipal policy. The police chief's summary judgment affidavit stated that the police department did not encourage or promote the commission of sexual assaults by city police officers, and that a background check he conducted when he hired the officer revealed only a neighborhood altercation that resulted in the officer's plea of nolo contendere to simple battery, and even if the officer used excessive force both before and after the city hired him, such force was unrelated to, and did not involve allegations of, rape, sexual harassment, or any other sexual offense.

The court said that even if the police chief had performed an inadequate background check when he hired the officer, such alleged negligence on the chief's part did not rise to the level of intentional and deliberate policy, for purposes of a municipal liability claim under 42 U.S.C. 1983.

State. A city was liable for false imprisonment of an arrestee for the period between the conclusion of a police department's laboratory test showing the package of which the arrestee accepted delivery contained no illegal substances and the arrestee's release following his arraignment in court. The court said that the probable cause that had previously existed for arrest and detainment, based on information from U.S. customs officers that the package contained heroin, ceased to exist when the lab results conclusively established innocence and he should have been released at that time. Still, the court remanded the case for further evidence on damages to see if the delay in releasing the arrestee might have been unavoidable.

"The absence of probable cause to continue to detain plaintiff established, as a matter of law, plaintiff's cause of action for false imprisonment, which does not require a showing of malice. . ., for the period between the conclusion of the Police Department's laboratory test and plaintiff's release after her arraignment. Accordingly, we modify to grant plaintiff judgment on that cause of action. However, a remand is necessary for further proceedings on the issue of damages, which may include mitigating evidence of any unavoidable delay in the processing and communicating of the laboratory results."

State. A sheriff and jail warden were not liable for releasing a detainee without a required bond who later killed the plaintiffs' mother because, even if defendants were negligent in allowing the detainee to be released on his own recognizance, this breach of duty was not the cause in fact or legal cause of the victim's death.

"Quite simply, bond does not exist for the protection of the public. Instead, as the courts have recognized, it exists to further the goal of ensuring the presence of the criminal accused at trial. Thus, even if the sheriff violated a duty associated with the housing of this pre-trial detainee by negligently allowing him to be released, he could have just as easily committed the same offenses had he been released and at large pursuant to the judicially set bond by posting a commercial surety or property bond. . . ."

A judge dissented.

Federal. A police department and physician did not violate the Fourth Amendment when the physician conducted a drug urinalysis without the officer's knowledge when the officer visited the physician for high blood pressure. The record showed that the officer knew that the physician conducted the department's drug tests, he had signed a waiver allowing the department to test him for drugs at any time, with or without cause, and the department had reasonable suspicion that the officer was using drugs.

". . . The waiver clearly put Carroll on notice that his urine could be tested for drugs 'at any time.' Given the breadth of the language in the waiver, it is difficult to argue that [the city of] Westminster exceeded its authority in testing Carroll. . . ."

Federal. An internal memorandum of a state police commissioner, which was circulated only to his superior and which informed the superior of his decision to abolish another state employee's position and reduce his rank, did not pertain to a "matter of public concern," and thus was not entitled to First Amendment protections. The concerns were addressed only to individuals capable of resolving an internal dispute between state employees, the memorandum did not allege any illegal activity by the state employee, and the memorandum was drafted in the Commissioner's official capacity, not as a private citizen, and only after the Commissioner was confronted with rumors of his own dismissal.

"The Court is able to conclude, based on the record as a whole, that the memorandum that serves as the basis for Rose's free speech claim does not rise to the level of public interest. The memorandum itself states that Simpson's [employee] 'reputation within the agency, his inflated salary ($85,000 per year), the mere fact that a trooper could be elevated to this status, along with his actions over the course of the past two years has caused serious morale problems within the State Police.' . . . This language clearly indicates that this memorandum addressed a matter of internal concern, rather than public concern. As such, Rose is not entitled to 'intrusive oversight by the judiciary in the name of the First Amendment.' Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 74 L.Ed.2d 708 (1983) (citations omitted)."

Federal. A municipality's interest in preserving discipline and harmony within its police department outweighed the interest of police officers in their speech regarding complaints they had about problems they perceived within the department. Therefore the officers could not prevail on a 42 U.S.C. 1983 retaliation claim after they were transferred.

The court said the officers' speech directly challenged their superior's ability to make decisions free from personal bias or preferences, the officers' speech was conducive to racial and gender tension within the department, and the officers made their complaints known to other officers who were subordinate to the superior.

"The employer's interest outweighs the employee's interest in speaking 'if the employee's speech "impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise."' . . . (quoting Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987))."

State. There was no evidentiary support for a finding that a county sheriff's department regarded as disabled a rejected applicant for a deputy sheriff position who was unable to see the color red, and therefore the applicant could not recover for alleged disability discrimination under the Americans With Disabilities Act or a state Fair Employment and Housing Act. The evidence did not show that the county perceived the applicant's major life activities of seeing and working as substantially limited by his condition, but had imposed color vision as a valid job requirement in view of the patrol duties of a deputy sheriff.

". . .'An otherwise valid job requirement, such as a height requirement [or color blindness], does not become invalid simply because it would limit a person's employment opportunities in a substantial way if it were adopted by a substantial number of employers.' (Sutton v. United Airlines, Inc. [119 S.Ct. 2139 (1999)], 119 S.Ct. at pp. 2151-2152.)"

Federal. It was held that a fire department could modify the standards for passing a physical ability test (PAT) required of firefighter applicants, to increase the pool of qualified female applicants to meet affirmative action requirements, without violating the equal protection rights of male applicants or their Title VII right to freedom from gender discrimination, even though the modifications were not revalidated by an expert who had validated the original requirements as being relevant to the position. The court said it was up to the department to determine the physical requirements for firefighters.

Further, male applicants for the firefighter position failed to show that the PAT was administered in a gender discriminatory fashion, in violation of their rights under the equal protection clause and Title VII, when evidence of discrimination consisted only of a claim that five out of 703 males taking the portion of the test involving movement of a fire hose were not given the benefit of a platform reducing the distance the hose had to be lifted.