Highlights of This Issue

United States Supreme Court Action

• Pending United States Supreme Court Cases; Internet Links

Federal and State Decisions

Search: What Constitutes; Dog Sniff

Rodriguez v. State, 106 S.W.3d 224 (Tex.App. 2003).

State. A drug-dog sniff outside defendant's front door, which alerted police officers to the presence of a controlled substance inside defendant's house, was not a Fourth Amendment search. The dog sniff did not explore the details of the house, it could not have revealed anything about the house other than the presence of an illegal narcotic, and defendant did not have a reasonable expectation of privacy in the area since it was used as a main entrance to the house and not protected from observation by passersby. The dog's alert gave the police probable cause to obtain a search warrant for defendant's house.

". . . [A] government led investigative technique, such as a drug-dog sniff, that discloses only the presence or absence of narcotics, and does not expose noncontraband items, activity, or information that would otherwise remain hidden from public view, does not intrude on the legitimate expectation of privacy and is thus not a 'search' for Fourth Amendment purposes. . . . The dog's sniff in this case did not explore the details of the house; nor could the sniff reveal anything about the house other than the presence of an illegal narcotic. . . Because the drug-dog sniff in this case did not intrude on a legitimate expectation of privacy, it was not a search and thus not an illegal one. . . ."

Traffic Stop: Validity of Conducting a Computer Check of Driver's License

People v. Grove, 792 N.E.2d 819 (Ill.App. 2003).

State. It has been held that under most circumstances when a police officer stops a driver for committing a traffic violation, the officer may also run a quick warrant check of the driver's license. The detention, however, must last no longer than is necessary to achieve the purpose of the stop.

In this case the court said that upon conducting a traffic stop of defendant to investigate a possible registration violation, a police officer was entitled to run a computer check on the driver's license as a routine part of the traffic stop, even after determining that the registration was valid. The court said it was reasonable to expect such a minor intrusion when the officer conducted the investigation. In this case the computer check revealed that defendant's license had been revoked.

Voluntariness: Use of a Ruse and False Statements Concerning Strength of State's Case

Commonwealth v. Scoggins, 439 Mass. 571, 789 N.E.2d 1080 (Mass. 2003).

State. It has been noted that even though the use of a ruse by the police is insufficient, by itself, to render a confession involuntary, a false statement by the police concerning the strength of the state's case, coupled with an implied promise that the defendant will benefit if he makes a confession, may undermine the defendant's ability to make a free choice. In this case, however, the defendant's confession was found to be voluntary. Of special note is the value of a taped interrogation.

"Our inquiry into the admissibility of the defendant's confession does not end with his Miranda waiver, however. The Commonwealth must also demonstrate beyond a reasonable doubt that any statements made after the defendant waived his rights were made voluntarily. . . .

"The defendant focuses on two of these techniques. According to the defendant, the police first deceptively gave him the impression that conviction was a certainty and subsequently led him to believe that a confession would help his defense or reduce his sentence. Even though the use of a ruse by the police is insufficient, by itself, to render a confession involuntary, . . . a false statement concerning the strength of the commonwealth's case, coupled with an implied promise that the defendant will benefit if he makes a confession, may undermine 'the defendant's ability to make a free choice.' Commonwealth v. Meehan, 377 Mass. 552, 563, 387 N.E.2d 527 (1979) . . . [T]he specter of coercion arises in these circumstances from the possibility that an innocent defendant, confronted with apparently irrefutable (but false) evidence of his guilt, might rationally conclude that he was about to be wrongfully convicted and give a false confession in an effort to salvage the situation. See generally, Ofshe, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 Denv. U.L.Rev. 979 (1997).

"Though we are mindful of these considerations, our examination of the record indicates that the motion judge correctly found that the defendant's confession was voluntary. The officers did not confront the defendant with any false evidence or expressly state that a conviction was certain. It appears from the transcript of the interrogation that the defendant reached this conclusion independently. The officers also stopped short of making an assurance that the defendant would benefit from admitting his guilt. Because the interrogation was recorded, we were able to confirm the precise words used when the defendant was confronted with the evidence against him. Given the fine line between proper and improper interrogation techniques, the ability to reproduce the exact statements made during an interrogation is of the utmost benefit. . . ."

Police Officer Witness: Bullet Trajectory Expert Testimony

Rowe v. State, 582 S.E.2d 119 (Ga. 2003).

State. A police officer witness was qualified to testify as an expert in bullet trajectory and reconstruction of a murder scene, where he had been in law enforcement for approximately seven years at the time of a murder, he was a certified identification technician, he had received training in crime scene reconstruction and bullet trajectory, and he was an instructor in crime scene processing.

". . . [C]rime scene reconstruction and testimony concerning bullet trajectory have been recognized as areas of expertise. . . . However, formal education in the particular subject is not a prerequisite for status as an expert; a person may be qualified as an expert when the person's knowledge is derived from experience as well as study. . . . Findley had been in law enforcement since 1994; he was certified as an ID technician; he had received training in crime scene reconstruction and bullet trajectory; he attended an advanced reconstruction workshop; and he was an instructor at the police academy in crime scene processing.

"Findley was allowed to testify as to what he did and observed at the crime scene; as to any opinion testimony, it was given after an explanation of the facts upon which it was based, and it was a matter for the jury to weigh. . . ."

Police Pursuit: "Trailing"; Department Policy

Jones v. Congemi, 848 So.2d 41 (La.App. 2003).

State. The actions of police officers in following a vehicle which was initially speeding, and later refused to pull over after sirens and lights were activated, were reasonable and did not cause a subsequent accident occurring when the pursued vehicle struck another vehicle, resulting in death and injury to the occupants of the other vehicle. The police department policy allowed following a vehicle at a safe speed and trailing a vehicle that refused to stop, and the accident was clearly caused by the criminal actions of the driver of the pursued vehicle.

"Officer Archuleta stated that the majority of the time that he followed Mr. King, they were both traveling within the speed limit. It was not until shortly before the accident that Mr. King picked up speed. The department policy permits following a vehicle at a safe speed. Furthermore, although Mr. King did not pull over in the required 'stop zone,' the department manual allows the officer to begin 'trailing' the vehicle in such a situation. The parties disagree as to whether the officers 'trailed' Mr. King or 'chased' him at a high rate of speed. However, we find that this issue is not a genuine issue of material fact which precludes summary judgment.

"Even if the officers had deviated from the policies of the Kenner Police Department, we find that the undisputed material facts establish that the officers' actions were reasonable. Policies and regulations should indeed be followed and corrective action may be taken by the police department when an officer fails to comply with the department's regulations. However, when determining the scope of duty owed by law enforcement officers and whether such duty was breached, the legal question is whether or not a police officer's actions were reasonable, not whether he complied with departmental policies."

One judge dissented.

Excessive Force: Bystander Liability of Police Officer; Good Faith Immunity

North Carolina Ex Rel. Hailey v. Westmoreland, 267 F.Supp.2d 497 (N.C. 2003).

Federal. A deputy sheriff who held outstretched the wrist of an automobile occupant, following a valid stop of the car, did not have "bystander liability" for excessive force used by his partner, who allegedly struck the occupant while standing outside of the car, and again after entering the car. The deputy did not have a reasonable opportunity to prevent harm, since the attacks were unexpected and lasted for a very short period, and a release of his grip on the occupant could have been dangerous.

The court said the deputy had qualified immunity from bystander liability for his partner's use of excessive force, based on the assertion that he should have stopped his partner from beating the occupant. It noted that recognition of bystander liability in the circuit court of appeals did not occur until after the incident in question, precluding knowledge on the part of the deputy that he might be incurring bystander liability.

"Assuming for the purposes of deciding this motion that Westmoreland did strike plaintiff and that Porter knew this, the court finds that Porter did not have a reasonable opportunity to prevent the harm. . . .

". . . The unsettled state of legal precedent, combined with the facts as stated above, leads to the inescapable conclusion that Porter did not violate any clearly established right of plaintiff's of which a reasonable person would have been aware. Therefore, he is entitled to qualified immunity. Overall, Porter did not use excessive force against plaintiff, had no reasonable opportunity to prevent Westmoreland's alleged striking of plaintiff, and bystander liability was not a clearly established legal principle at the time. . . ."