Highlights of This Issue

United States Supreme Court Action

• Drug Detection Roadblocks ruled unconstitutional
• Mail Fraud Statute was not applicable to false statements made in application for state license

Federal and State Decisions

Arrest: What Constitutes; Drawing Gun During Investigative Stop

State. Where a police officer drew his gun during an investigative stop of a juvenile suspected of possessing a gun, this did not make the stop exceed the scope of a permissible Terry stop and an illegal de facto arrest. The court noted that the officer never pointed his weapon at the juvenile before the juvenile admitted having a gun. Only at that point did the officer move his gun into a "low-ready" position.

"We disagree with the juvenile's argument that the stop exceeded the scope of a permissible Terry stop and became an illegal de facto arrest because Goins drew his weapon. 'Police are permitted to draw their weapons when they have reasonable basis to fear for their safety; by doing so, they do not convert an investigative stop into an arrest.' State v. Saez, 173 Ariz. 624, 627, 845 P.2d 1119, 1122 (App.1992). Here, the officer had information that the juvenile possessed a firearm. Nevertheless, he never pointed his weapon at the juvenile before the juvenile admitted having a gun. After that point, the officer moved his gun into a 'low-ready' position. After the juvenile's admission, Goins had probable cause to arrest him for possession of a firearm."

Warrantless Entry Into Apartment: Exigent Circumstances; Use of Informant; Factors to Consider

State. A warrantless forced entry into an apartment to arrest a defendant for possession of a controlled substance with intent to deliver was not justified where an informant who stated that drugs were being sold from the apartment had not been established as reliable, the police had no reason to believe defendant was armed and dangerous, the informant knocked on the apartment door at the request of the police, defendant opened the door while holding a small packet of cannabis and closed the door after a short conversation with the informant, the informant knocked again and within seconds police officers broke down the door, entered the apartment, and arrested defendant inside the apartment.

In reaching its decision the court listed the factors to be considered in making a determination that exigent circumstances justify a warrantless entry into a private residence to make an arrest: (1) whether the offense under investigation was recently committed; (2) whether there was any deliberate or unjustifiable delay by the officers during which time a warrant could have been obtained; (3) whether a grave offense was involved, particularly one of violence; (4) whether the suspect was reasonably believed to be armed; (5) whether the police officers were acting upon a clear showing of probable cause; (6) whether there was a likelihood that the suspect would have escaped if not swiftly apprehended; (7) whether there was a strong reason to believe that the suspect was on the premises; and (8) if the police entry, though nonconsensual, was made peaceably.

The court said this list of factors was not all-inclusive, but merely illustrative.

Investigative Stop: Reasonable Suspicion; Unidentified 911 Tipster; Reliability Factors; Florida v. J.L.

Federal. A tip given by a 911 caller was sufficiently reliable to constitute reasonable suspicion under Terry v. Ohio justifying an investigative stop and frisk of defendant, even though the caller, who claimed that defendant had hit her in the head with a firearm, refused to identify herself in the call. The court considered the fact that the caller gave information to the police that she believed would enable officers to determine her identity and location, thereby subjecting herself to the risks of adverse consequences in the event that her tip proved to be false. Other factors weighing in favor of sufficient reliability were that the caller offered a sound reason for refusing to give her name during the 911 call, the call and related communications were recorded, and the caller clearly had firsthand knowledge of the criminal activity she reported.

". . . The critical point for purposes of this [case] is that the caller gave information which, on the face of it, indicates that she believed she was identifiable to the police. That distinguishes this case from J.L. [Florida v. J.L., 120 S.Ct. 1375 (2000) (anonymous tip insufficient to justify a Terry stop)] and adds to the reliability of the tip because she subjected herself to the risks of adverse consequences in the event that the tip proved to be false."

Miranda: Public Safety Exception; New York v. Quarles; Objective vs. Subjective Test

Federal. The Ninth Circuit Court of Appeals ruled that federal agents did not act with an investigatory purpose when, as they had weapons drawn on an armed robbery suspect as he lay on the floor of a hotel room and as he began to bring his hands toward his waistband, they asked him where "the gun" was. Evidence of the gun was admissible under the public safety exception to Miranda of New York v. Quarles, 467 U.S. 649 (1984), despite the agents' failure to give defendant Miranda warnings. The court considered the facts that the hotel room had not been secured, the agents did not know whether the suspect was armed, and the agent who asked the question did not go beyond the bare minimum necessary to locate the potential threat to the agents.

The court reaffirmed the rule that a police officer's questioning of a suspect before giving Miranda warnings is acceptable if it relates to an objectively reasonable need to protect the police or the public from an immediate danger associated with a weapon. Significantly, it said the officer's subjective motivation in posing the question is not part of the Quarles analysis.

". . . Under Quarles, an officer's questioning of a suspect before giving a Miranda warning is acceptable if it 'relate[s] to an objectively reasonable need to protect the police or the public from any immediate danger associated with the weapon.' Quarles, 467 U.S. at 659 n. 8, 104 S.Ct. 2626. The officer's subjective motivation in posing the question is not part of the analysis. See United States v. Brady, 819 F.2d 884, 888 n. 3 (9th Cir. 1987). The application of the public safety exception is a mixed question of law and fact subject to de novo review. . . ."

To the same effect on the issue of an officer's motivation in Quarles cases, see Davis v. State, 536 S.E.2d 596 (Ga.App. 2000).

Criminal Sexual Abuse Statute: "French Kiss" With a Minor

State. Where defendant placed his tongue in a six-year-old victim's mouth, this constituted "sexual conduct" for purposes of his own sexual arousal under a criminal sexual abuse statute. The court said that defendant's "french kiss" of the victim was an inherently sexual act which generally results in sexual excitement and arousal. Defendant acknowledged in his appellate brief that a "french kiss" could be construed as sexual in nature.

Self Defense: Actions of Correctional Officers; Standard for Determining Defense

State. The Supreme Court of Washington has adopted the rule that a prisoner may claim self-defense and use force to resist the actions of a correctional officer only when the prisoner is in actual, imminent danger of serious injury. It adopted the established rule for the use of force in self-defense cases involving arrests, which requires that the person asserting self-defense face a situation of actual, imminent danger, not just apparent, imminent danger.

"We conclude the use of force against correctional officers should have the same status as the use of force against arresting officers, and should generally be discouraged as a matter of public policy. There seems to be little reason to differentiate between law enforcement officers making an arrest and correctional officers maintaining order in jails or other correctional facilities. We adhere to our preference . . . for persons to resort to the process of law rather than the self-help violence of the street."

One justice dissented.

Civil Liability: Arrest for Giving a Police Officer the Finger; "Fighting Words"; Qualified Immunity

Federal. An arrestee's display of his middle finger in an upward gesture, commonly referred to as "flipping someone off," "the bird," or "giving someone the finger," did not constitute "fighting words" and, thus, was protected as free speech under the First Amendment in a civil rights action brought under 42 U.S.C. sec. 1983. The court ruled that the arresting police officer was not entitled to qualified immunity in the lawsuit. It said the arrestee-plaintiff's gesture was clearly established as protected free speech at the time when the officer issued a ticket to the arrestee for disorderly conduct.

"While we agree the gesture utilized by Nichols was crude, insensitive, offensive, and disturbing to Chacon's sensibilities, it was not obscene under the relevant Supreme Court precedent, did not constitute 'fighting words,' and was protected as 'free speech' under the First Amendment to the United States Constitution. We also believe that this right was clearly established on August 6th of 1998 when Chacon arrested Nichols. Accordingly, we hold as a matter of law that Chacon is not entitled to qualified immunity and that his arrest of Nichols violated Nichols' First and Fourth Amendment rights."

Discipline: Conduct Unbecoming; Conduct After Use of Prescription Medicine for Recreational Purposes; Threat to Blow Up Public Safety Building

State. A police officer's alleged intoxication after taking a prescription sleep aid was "voluntary intoxication," so that the officer was responsible for her conduct unbecoming an officer, which was committed while she was intoxicated, where the officer voluntarily ingested the medication in a manner inconsistent with medical advice by exceeding the prescribed dosage, and the officer told her roommate that she was going to take enough medication to "feel good," thus indicating that her use of the medication was recreational rather than medicinal.

Additionally, the officer's conduct in calling police and fire dispatch centers and threatening to blow up the building in which the centers were located was deemed "subversive to the operation" of the police department, as a basis for conduct unbecoming an officer under a city police department manual, even if the threats were not taken seriously.

Discrimination: Physical Fitness Tests; Females; Disparate Impact

Federal. A transit authority's police force did not discriminate against women by adopting a physical fitness test that required all applicants to run 1.5 miles in 12 minutes or less. The court rejected a claim that such a test had an unlawful disparate impact on women because it excluded about 93% of women applicants.

The court said that if the agency were judicially required to use a lower standard, it "would become a police force with officers who were a danger to themselves, other officers, and the public at large, who were unable to effectively fight and deter crime. . . . Apprehending perpetrators, deterring crime, assisting fellow officers in emergency situations, and backing up fellow officers are critical components of the job of a SEPTA transit police officer."