Highlights of This Issue

United States Supreme Court Action

Court to Review Issue of Whether Law Enforcement Officers Enjoy Qualified Immunity (Good Faith) for a Fourth Amendment Violation in Serving a Defective Search Warrant.

Groh v. Ramirez, No. 02-811 (2003); decision below: 298 F.3d 1022 (9th Cir.)

Summary of the Ruling Below: Search warrant that did not list objects to be seized and did not incorporate, by reference or attachment, affidavit listing those objects violated Fourth Amendment; officers could not cure violation by orally informing person at target premises of objects to be seized; officer who led search without fulfilling his obligation to read warrant is not entitled to qualified immunity from 42 U.S.C. 1983 action.

Questions Presented in the U.S. Supreme Court:

(1) Did Ninth Circuit err in ruling that law enforcement officer violated clearly established law, and thus was personally liable in damages and not entitled to qualified immunity, when at time he acted there was no decision by U.S. Supreme Court or any other court so holding, and only lower court decisions addressing issue had found same conduct did not violate law?

(2) Did law enforcement officers violate particularity requirement of Fourth Amendment when they executed search warrant already approved by magistrate judge, based on attached application and affidavit properly describing with particularity items to be searched and seized, but warrant itself did not include same level of detail?

Court to Review Knock and Announce Search Warrant Rules; LELR Publisher Urges Court to Adopt Law Enforcement Position.

United States v. Banks, No. 02-473 (2003); decision below: 282 F.3d 699 (9th Cir.).

The Supreme Court has agreed to review a decision that invalidated a search of an apartment on the ground that the police failed to wait a sufficient time between announcing their presence and breaking down the door to serve a search warrant. The police waited 15 to 20 seconds before breaking down the door. Executing a search warrant as the apartment owner emerged from the shower, the police found weapons and narcotics. The court below had ordered the evidence suppressed because it found that the rapid and forcible entry had rendered the search unconstitutional.

Summary of the Ruling Below: When law enforcement officers seeking to enter premises to execute search warrant do not face exigent circumstances and, absent cooperation from persons inside, would have to make forcible entry entailing destruction of property, they may not do so unless, after knocking and announcing pursuant to 18 U.S.C. 3109, they receive explicit refusal of admittance or wait amount of time that is significant and longer than they would be required to wait if nonforcible entry were possible; police in this case who had no knowledge suggesting that drug suspect posed special risk and, upon knocking on apartment door, heard no sound suggesting that he was moving away from door, violated Fourth Amendment and knock-and-announce statute by waiting only 15-20 seconds before making forcible entry.

Question Presented in the U.S. Supreme Court:

Did law enforcement officers executing warrant to search for illegal drugs violate Fourth Amendment and 18 U.S.C. sec. 3109, thereby requiring suppression of evidence, when they forcibly entered small apartment in middle of afternoon 15-20 seconds after knocking and announcing their presence?

LELR publisher, James P. Manak, has filed an amicus curiae (friend of the court) brief in this case on behalf of various law enforcement organizations, urging the Court to reverse the decision. Our position is that the 15-20 second delay was adequate and that a contrary rule would threaten officer safety and lead to destruction of evidence, especially in drug cases.

Note: Both the decision in this case and Groh v. Ramirez, supra, will be reported in LELR when decided by the Supreme Court in the coming months.

Arrest, Search and Seizure

Traffic Stop: Requesting Consent to Search

State v. Carty, 170 N.J. 632, 790 A.2d 903 (2002).

State. Because of what it considered to be widespread abuse of existing law that allows the police to obtain consent searches of every motor vehicle stopped for even the most minor traffic violations, the New Jersey Supreme Court recently decided, under that state's constitutional provisions similar to those of the Fourth Amendment, that an officer may not request consent to search the vehicle during a routine traffic stop unless there is articulable suspicion that the search will uncover evidence of a crime. The court explained that it is virtually impossible to drive and not unwittingly commit some infraction of the motor vehicle laws. Thus a substantial number of drivers are at risk of being pulled over and asked by officers for consent to search their vehicles at the officer's discretion. The court asserted that motorists may sacrifice their right to privacy and consent to a search in order to escape with only a warning.

The court cited empirical studies showing that, although 95% of motorists consented to searches (based on requests that it said were sometimes intimidating), 4 out of 5 persons who submitted to consensual searches were innocent of any wrong doing. The court held that a suspicionless consensual search would be deemed unconstitutional whether it preceded or followed the completion of the traffic stop, so as to prevent the police from turning a routine traffic stop into what it called a "fishing expedition."

While this decision is based principally on state rather than federal search and seizure law, it is nevertheless instructive, at least by analogy, as to possible current trends in the courts.

Miranda: Pre-Custodial General On-the-Scene Questioning

State v. Cockerham, 574 S.E.2d 694 (N.C.App. 2003).

State. A defendant was not in custody when he told a law enforcement officer, in response to the officer's questions, that some people tried to break into his apartment and he shot at the wall so as not to hurt anyone, and thus Miranda warnings were not required at that time. The defendant had not yet been arrested or restrained and the officer's questions, asked after the officer observed a hole in the apartment wall, were deemed general 'what happened' and 'why' questions that were asked when the officer did not yet know whether the actions were accidental or criminal. Such questions are considered 'pre-Miranda' and are sometimes called 'general on-the-scene' questioning to determine simply what, if anything, has happened.

". . . even assuming arguendo that defendant was in custody, the circumstances are more similar to the 'general investigation' situation in which Miranda warnings need not be given. . . . The questions asked by Corporal Grugin were general 'what happened' and 'why' questions apparently asked when the officers did not yet know if what occurred was accidental or potentially criminal. Thus, we conclude that defendant was not in custody when he answered Corporal Grugin's questions and, as such, Miranda warnings were not required. . . ."

Excessive Force: Shooting at Fleeing Motorist; Good Faith Defense

Vaughan v. Cox, 2003 WL 23393 (11th Cir. 2003).

Federal. A police officer had "arguable probable cause" to believe that motorists who ignored his attempts to stop them, rammed his squad car from behind, and who accelerated to the speed of 80 to 85 miles per hour in an attempt to evade arrest posed a threat of serious harm to the officer or to others, and was protected by qualified immunity (good faith) from liability under the civil rights act when, without first providing any warning to the motorists, he discharged his firearm at their vehicle.

Although a reasonable jury, under the passenger's version of the events, could find that the officer's conduct violated the Fourth Amendment, prior decisions did not provide fair warning to the officer that his alleged conduct violated the Fourth Amendment, and thus a good faith defense was appropriate.

Rescue Services: 911 Calls; Duty to Provide Competent Services

Douglas v. Commonwealth of Pennsylvania Dept. of Health Emergency Medical Services Training Institute, 2003 WL 148919 (3rd Cir. 2003).

Federal. This court ruled that the Due Process Clause does not require states to provide rescue services, or to provide adequate or competent rescue services when they have chosen to undertake these services. It said that state action by emergency medical personnel, who must act in haste and under pressure, violates the Fourteenth Amendment guarantee of substantive due process only when it "shocks the conscience."

The actions of city emergency medical technicians (EMTs) in responding to a 911 call reporting that an infant was choking on a grape did not shock the conscience, and thus, did not violate the substantive due process rights of the infant, who died of asphyxia two days later. The EMTs allegedly could not locate the reported address on their map and were lost when they left the fire station because of their alleged failure to familiarize themselves with the neighborhood in which they were providing emergency services. Additionally, they allegedly failed to use recognized protocols for choking situations when they arrived. However, they attempted to ascertain the location through all available means and attempted to arrive at the scene as rapidly as they could. This conduct did not shock the conscience, the court said.