Highlights of This Issue

United States Supreme Court Action

United States Supreme Court Reaffirms the Constitutionality of Pretext Stops and Arrests.

In a brief per curiam opinion the United States Supreme Court decided a case where an officer observed the commission of a traffic violation and stopped the vehicle. When the officer approached the vehicle, he recognized the driver from a previous police bulletin regarding persons engaged in illegal drug sales. After the officer noticed a roofing hatchet on the floorboard of the vehicle, the driver was arrested for a weapons violation under Arkansas law. The vehicle was impounded prior to being towed to a secure lot. During a subsequent inventory of the vehicle, a large quantity of amphetamines was found.

The Court ruled that if an officer has a legal basis for making a custodial arrest for a particular crime, it does not matter if he has suspicions that the suspect is involved in any other criminal activity.

The Court referred back to its decision in Whren v. United States, 517 U.S. 806 (1996), the case in which it approved so-called "pretext arrests." The Court in Whren stated its "unwillingness to entertain Fourth Amendment challenges based on the actual motivations of individual officers," and held that "subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis."

The Court in the instant case said: "That Whren involved a traffic stop, rather than a custodial arrest, is of no particular moment; indeed, Whren itself relied on United States v. Robinson, 414 U.S. 218, for the proposition that a traffic-violation arrest . . . [will] not be rendered invalid by the fact that it was a mere pretext for a narcotics search."

Thus, as long as there is a legal basis for making a custodial arrest, i.e., objective probable cause, officers may do so, even in cases where they are motivated by a desire to gather evidence of other suspected crimes. The Court also ruled that in interpreting Fourth Amendment rules, the state court below was bound by the precedents of the United States Supreme Court. Reversed, 11 S.W.3d 526 (2000).

Arrest, Search and Seizure

Search Warrant: Execution; Protective Sweep; Basement of Store

State. The police were justified in conducting a protective sweep of a convenience store basement, which contained a barbershop, after the arrest of the store owner in connection with the discovery of a large amount of crack cocaine in the store pursuant to a search warrant. It appeared that the persons entering the store could pass freely between the first floor of the store and the basement, the officers could not confirm the whereabouts of two individuals who had just entered the store prior to the apprehension of the store owner, and, as the only accessible area adjoining the first floor, the basement provided a logical hiding place.

". . . Because the sweep in the present case extended beyond the area within the immediate vicinity of the arrest, there must be 'articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.' [Maryland v. Buie, 494 U.S. 325 (1990)] at 334, 110 S.Ct. 10093. . . . Here, after extensive surveillance and probable cause of illegal activity, the police entered a building to search for narcotics. Once inside the convenience store, the police apprehended Gooden and located a large quantity of a controlled substance but could not confirm the whereabouts of two individuals who had just entered. As the only accessible area adjoining the first floor, the basement provided a logical hiding place for Taylor and Mahone. The police entered the basement under a reasonable belief that third parties were present and could pose a threat to them, therefore exigent circumstances legally justified the protective sweep of the basement."

Three justices concurred and dissented.

State. A search incident to defendant's arrest for possession of a stolen vehicle, during which a police officer heard "crinkling material" in the area of defendant's "crotch" during an initial pat-down, pulled defendant's belt line back and observed a plastic bag in defendant's groin area, and reached in two inches and pulled a bag out of the front of defendant's underwear, was not a "strip search" in violation of the Fourth Amendment. The court focused on the facts that defendant's clothing was not removed and his genital area was not exposed, and the arresting officers did not visually inspect or touch defendant's genitals.

". . . in a review of a number of federal appellate decisions, we found no cases that characterize a strip search as other than partial or total disrobement. . . .

"In this case, in accepting the commonwealth's evidence, we find appellant was not subjected to a strip search. . . . [His] clothing was not removed, and his genital area was not exposed. The officers made no visual inspection of appellant's genitals nor did the officers touch appellant's genitals. . . ."

State. A roadblock used by the police to gather information of a "hit-and-run" crime that occurred one week before violated the Fourth Amendment as a roadblock seeking evidence of "ordinary criminal activity," as proscribed by the United States Supreme Court in Indianapolis v. Edmond, 121 S.Ct. 447 (2000), reported in the January/February 2001 issue of LELR at p. 3, where there was no "emergency" justifying the roadblock. The blocking of side exits that prevented motorists from avoiding contact with the police discredited the prosecution's explanation that the police were only seeking evidence of the previous crime, and the court said it was likely that more traditional law enforcement techniques would have been just as effective. Defendant's DUI conviction, which resulted from his behavior at the roadblock, was voided.

"Edmond did leave open the possibility that an 'emergency' might justify a checkpoint the purpose of which would ordinarily be considered routine crime control. The Court gave as examples preventing an imminent terrorist attack and catching a dangerous criminal 'who is likely to flee by way of a particular route.' Edmond, 531 U.S. at --, 121 S.Ct. at 455, 148 L.Ed.2d at 345. Clearly, no such emergency was present here. The crime in question had occurred a week before. Moreover, the officers did not testify that they expected even to catch the offender; they merely wanted to get a more accurate description of him. This is the type of routine investigative work that the police must do every day and does not justify the extraordinary means chosen to further the investigation."

Interrogation

Miranda: Implied Waiver; Answering Questions Without Reluctance After Advisement of Rights

State. The Supreme Court of Ohio found a waiver of Miranda rights where, although a detective did not ask defendant if he wished to give up his rights, he asked him whether he understood his rights, defendant affirmed that he understood his rights, defendant stated that "That means I ain't got to say nothing right now, 'til I talk to my lawyer," defendant also stated that, "That means I can talk to you if I want to," and when the officer questioned defendant, defendant spoke with no visible reluctance. The court said that when a suspect speaks freely to the police after acknowledging that he understands his rights, a court may infer that the suspect implicitly waived his rights.

". . . A suspect's acknowledgment that he understands his rights should not, perhaps 'inevitably carry the day,' but, such an acknowledgment 'is especially significant when defendant's incriminating statement follows immediately thereafter," as was the case here. 2 LaFave, Israel & King, Criminal Procedure (2 Ed.1999) 592, Section 6.9(d), citing Billings v. People (1976), 171 Colo. 236, 466 P.2d 474."

Civil Liability / Personnnel Law

Strip Search Liability: DUI Female Arrestee; Good Faith Immunity

Federal. A strip search policy and a strip search conducted pursuant to it violated the Fourth Amendment privacy rights of a female arrestee in the absence of evidence that county jail officers who conducted the search had a reasonable suspicion that the plaintiff was concealing weapons or any other type of contraband.

". . . there is no evidence that the officers at Shelby County Jail had reasonable suspicion that Wilson was concealing weapons or any other type of contraband. Indeed, as the district court noted, an officer permitted Wilson to use the bathroom prior to the search, which indicates a lack of fear that Wilson might flush any such substance down the toilet. Moreover, Sheriff Jones testified that 'I don't believe we had a reason to suspect that [Wilson] had any contraband.'

"Because Wilson was strip searched absent reasonable suspicion, we hold that the search of Wilson, as well as the jail's policy authorizing her search, violated the Fourth Amendment prohibition against unreasonable searches and seizures. Other circuits addressing this issue have held similar policies unconstitutional. . . ."

Nevertheless, the sheriff was given qualified immunity from liability under 42 U.S.C. 1983 because at the time of the search no case in the plaintiff's circuit had clearly established the constitutional violation on facts materially similar to the plaintiff's and two district court cases had actually upheld the sheriff's policy.

Federal. Police officers stopped a motorist because of her "erratic driving." One of the officers asked her to exit the vehicle so he could conduct field sobriety tests, and she complied. While she was engaged in taking one of these tests, a vehicle exited the freeway at excessive speed, went out of control, and started sliding sideways rapidly towards the motorist and the trooper.

While the trooper testified he screamed and tried to grab the motorist as he ran between his patrol car and the motorist's vehicle, he was unable to get her. The out of control vehicle struck and killed her. Only one or two seconds allegedly elapsed from when the trooper first noticed the out of control car and when he turned to run. The estate of the motorist sued the police for violation of civil rights, claiming a deliberate indifference to her due process rights, as well as negligence under state law.

A federal trial court rejected these claims, finding that the officers did not violate any clearly established constitutional right, and were therefore entitled to qualified immunity on the federal claim, and that they were entitled to governmental immunity under state law. Further, the court said, the "most immediate and most direct" cause of the decedent's death was the "driver that struck her" and not the conduct of the officers.

Federal. The practice of "banding" of employment examination test scores falling within specified ranges, with all scores within a given range treated as identical, does not constitute race norming in violation of Title VII of the Civil Rights Act of 1964 per se. This court said that banding is a universal and normally an unquestioned method of simplifying scoring by eliminating meaningless gradations.

"We must consider whether banding, when it works to the advantage of a particular racial or ethnic group, is race norming. This is a question of first impression. For although banding has been upheld as a valid method of affirmative action, Boston Police Superior Officers Federation v. City of Boston, 147 F.3d 13, 24 (1st Cir. 1998); Officers for Justice v. Civil Service Commission, 979 F.2d 721 (9th Cir. 1992); Bridgeport Guardians, Inc. v. City of Bridgeport, 933 F.2d 1140, 1148 (2d Cir. 1991), none of the cases considers its consistency with the prohibition of race norming. See, e.g., Officers for Justice v. Civil Service Commission, supra, 979 F.2d at 725-26.

"We have no doubt that if banding were adopted in order to make lower black scores seem higher, it would indeed be a form of race norming, and therefore forbidden. But it is not race norming per se. In fact it's a universal and normally an unquestioned method of simplifying scoring by eliminating meaningless gradations. Any school that switches from number grades to letter grades is engaged in banding. . . ."