Highlights of This Issue

United States Supreme Court Action

Prison Policy of Segregating Inmates According to Race Is Subject to Strict Scrutiny Review.

Search Incident to Arrest: Truck; Arrest of Occupant Who Had Just Left the Truck

A warrantless search of a truck that an arrestee exited just prior to his arrest was reason able, as a contemporaneous incident of the arrest, under the Fourth Amendment, even though the arresting officer did not make contact with the arrestee until he had exited the truck. The arrestee was standing about five feet away from the opened driver's side door when he was arrested.

"Recently, . . . the Supreme Court has clarified the scope of Belton [New York v., 453 U.S. 454 (1981) (holding as part of arrest of an occupant of a vehicle the police can make a contemporaneous search of the interior of the vehicle)]. In Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004), the Court held that Belton governs even when an officer does not make contact until the person arrested has left the vehicle.' Id. at 2129. So long as an arrestee is the sort of "recent occupant" of a vehicle such as petitioner was here, officers may search that vehicle pursuant to the arrest.'. . .

"Indeed, the concerns regarding officer safety and the destruction of evidence' cited by the Thornton court, id. at 2131, apply with at least equal force here because, when the police ap proached Herndon, the door of his truck was still open and he was standing only a few feet away. The search of Herndon's truck thus falls squarely within the range of searches deemed permissible by the Supreme Court in Belton and Thornton."

Traffic Stop: Racial Profiling; Evidence

United States v. Frazier, 394 F.3d 612 (8th Cir. 2005).

The conduct of police officers in target ing for surveillance a moving truck driven by defendant did not violate the Equal Protection Clause, even though defendant and his passenger were African-American, where the officer noted the truck was a smaller type likely to be used for a local move, but there was no rental facility for that type of truck nearby. The officers noticed a new padlock securing a latch of the truck, a bible on the front dashboard, and that the truck was from a known drug source area. All these facts made the officers suspect drug activity, based upon their training and experience. The court rejected a racial profiling argument for the surveillance and stop of the truck for lack of evidence of a discriminatory motive.

"Whether the officers acted on a 'legitimate hunch' or even arbitrarily in their investigation, Frazier lacks sufficient proof of discrimination to proceed with that inquiry. Under our cases, Frazier must "identify affirmative evidence from which a jury could find that the plaintiff has carried his or her burden of proving the pertinent motive."' Johnson, 326 F.3d at 1000 (quoting Crawford-El v. Britton. 523 U.S. 574, 600, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998)). Frazier's attack on the officers' credibility is insufficient to establish an equal protection violation. Frazier failed to provide enough evidence to establish that the officers targeted him solely because of his race."

Miranda: Custody; "Stand-Off" With Police Officers

Campbell v. State, 820 N.E.2d 711 (Ind.App. 2005).

A defendant was not "in custody" during a stand off with the police when he made statements to a police detective and, thus, was not entitled to Miranda warnings. When the detective arrived at the scene, defendant was armed with a pistol and police officers had surrounded defendant at gun point, and he had not yet yielded to the show of the officers' authority at the time he made the statement.

"In this case, the facts show that when Detec tive Stowers arrived at the scene, several officers had Campbell surrounded at gunpoint. . . . And Campbell was armed with a pistol. . . . In other words, it is apparent that Detective Stowers arrived in the midst of a 'standoff' between Campbell and the other officers. When Campbell made his remarks to Detective Stowers, Campbell was still refusing to submit to authority, inasmuch as he would not place his hands behind his back or submit to a pat down search so that the officers could confirm that he was no longer armed."

"In light of these circumstances, it is apparent that Campbell was not 'in custody' when he responded to the officers' inquiries. . . ."

Police Pursuit: Deadly Force; Good Faith Immunity

Waterman v. Batton, 393 F.3d 471 (4th Cir. 2005).

Once a motorist's vehicle, which had been the target of a police pursuit after it failed to stop when pursued for speeding, passed officers who had been trying to stop it while stationed near a toll plaza, such that the vehicle no longer pre sented an imminent threat to their safety, the officers' use of deadly force in continuing to fire at the pursued motorist was no longer constitutionally reasonable.

". . . [W]e conclude that the record, viewed in the light most favorable to the Estate, shows that once Waterman's vehicle passed the officers, the threat to their safety was eliminated and thus could not justify the subsequent shots. A factfinder could reasonably conclude that as the officers pursued Waterman's vehicle, they knew or should have known that Waterman had passed them without veering in their direction. Under these circumstances, a reasonable factfinder could determine that any belief that the officers continued at that point to face an imminent threat of serious physical harm would be unreasonable. . . ."