Highlights of This Issue

United States Supreme Court Action

Search Warrant That Failed to Describe the Items to Be Seized Was Presumptively Invalid; No Civil Liability Defense for the Officer.

Groh v. Ramierez, 124 S.Ct. 1284, 2004 WL 330057, No. 02-811 (2004).

"Knock and Talk" Procedure: Voluntariness of Consent to Search

State v. Johnston, 839 A.2d 830 (N.H. 2004).

State. Police officers using a "knock-and-talk" procedure to investigate the possible possession of child pornography were not required to inform the suspect that he had the right to refuse a consent to a search of his home. The officers were not deceptive, they told the suspect that they were looking for child pornography when the suspect inquired into the alleged illegal conduct in question, and the suspect did not testify that he consented to a search because he was afraid. Although the court approved the use of the "knock and talk" procedure in this case, it also pointed out the possible problems that exist in its use and how to avoid them.

"One problem with the knock and talk procedure is that the police may attempt to obtain consent by minimizing the seriousness of the situation or by acting in a deceptive manner. . . .

"[However], the officers in this case did not use the procedure in an untoward manner. We emphasize that the officers here were not deceptive; when the defendant inquired as to the illegal activity in question, they specifically stated that they were looking for child pornography. Detective Crockett testified that had the defendant given any indication that he did not want to cooperate, he would not have persisted in attempting to obtain consent. Cf. Jones, 131 N.H. at 728-29, 560 A.2d 1159. In addition, . . . the defendant did not testify that he consented to the search because he was terrified. . . . Rather, the defendant testified that he consented to the search of the computer in his living room because "[he] thought [he] had to."

Miranda: Waiver; Effectiveness; Refusal to Sign Waiver Form

Commonwealth v. Raposa, 801 N.E.2d 789 (Mass. 2004).

State. A murder defendant's oral waiver of Miranda rights was knowing, intelligent, and voluntary, despite her refusal to sign a Miranda rights form and her refusal to have a subsequent interview recorded. The defendant was 36 years of age, had a college education, and was a part-time substitute teacher, and the interviewing officers testified to the circumstances of the waiver and interview.

On another point the court ruled that the interviewing officers' alleged awareness that the murder defendant was represented by an attorney on another matter at the time of the questioning did not require suppression of defendant's statement, where the police questioning stopped as soon as defendant asked to speak to her attorney.

Police Witness: Non-Expert Testimony on Shoeprint Evidence

People v. Maglaya, 6 Cal.Rptr.3d 155 (Cal.App. 2003).

State. The testimony of a non-expert police officer that shoeprints found in dirt at the scene of a crime were similar to the pattern on the soles of defendant's shoes was ruled admissible. Under statutory requirements the non-expert testimony was rationally based on the officer's perception, and the opinion was helpful to a clear understanding of his testimony. Without the officer's testimony the jury would otherwise have had to make its own tedious comparison of shoes and prints.

"Here, sergeant Johnston's comparison of shoes and footprints was rationally based on the witness's perception. In the words of the California Supreme Court, albeit in dicta, 'shoeprints are so large and the points of similarity so obvious, the comparison . . . is a matter of nonexpert rather than of expert testimony.' (People v. Taylor (1935) 4 Cal.2d 495, 497, 50 P.2d 796, italics added.)"

The case illustrates the difference between expert testimony (beyond the knowledge of the average person) and lay testimony (common knowledge).

Police Pursuit: Immunity; Reckless Disregard

Mississippi Dept. of Public Safety v. Durn, 861 So.2d 990 (Miss. 2004).

State. The evidence in this case supported a trial court's findings that a state trooper acted with reckless disregard for the safety and well-being of others, as required to deny him immunity under a state statute, when, while pursuing a third party for speeding, he passed on the left a vehicle that indicated it was turning left, where the motorist injured in the collision had activated his left-turn signal, the area where the accident occurred was congested, and visibility was limited.

"To be entitled to immunity [under the statute], the officer must not have acted with reckless disregard for the safety of others. Reckless disregard is more than mere negligence, but less than an intentional act. . . .

"[T]o determine whether an officer acted in reckless disregard of others while pursuing a third party [the following factors are considered]:

1. Length of chase. In the present case, Lantern's [officer] pursuit of the speeding vehicle lasted only seconds.
2. Type of neighborhood. The area was a congested business area.
3. Characteristics of the streets. The stretch of highway where the accident took place was straight and flat.
4. The presence of vehicular or pedestrian traffic. The area was congested.
5. Weather conditions and visibility. Visibility was limited by the darkness at 6:30 a.m.
6. The seriousness of the offense for which the police are pursuing the vehicle. Lantern was pursuing a speeding vehicle at the time of the accident.

"A review of our case law illustrates that we find reckless disregard when the 'conduct involved evinced not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high probability of harm involved.' Maldonado [v. Kelly, 768 So.2d 906 (Miss. 2000)], 768 So.2d at 910-11."

Employment Termination/Release Agreement: Voluntariness

Clark v. Riverview Fire Protection Dist., 354 F.3d 752 (8th Cir. 2004).

Federal. It was held that a firefighter was not acting under duress when he signed an agreement releasing his fire district and its board from all claims relating to his employment, including claims of employment discrimination under Title VII of the Civil Rights Act of 1964. This result was not affected by the fact that the board required that the firefighter decide whether to sign the agreement before it adjourned a meeting called to discuss his termination. The firefighter was provided a copy of the agreement five days before the meeting, he reviewed the agreement with his union representatives before the meeting, and he was provided with a recess during the meeting to further review and consider his options.

"Because Clark points to no facts indicating he was prevented from exercising his free will by threats or wrongful conduct, we conclude he was not under duress when he signed the Agreement. Likely this was a stressful situation for Clark, and under pressure he made a decision he later regretted. Clark's dissatisfaction, however, stems from a lack of favorable bargaining position and knowing the future of his employment was in the hands of a Board which was less than hospitable toward him. The 'fact that the choice was difficult does not mean that he lacked the requisite free will to make the decision.' Anselmo, [v. Mfrs. Life Ins. Co., 771 F.2d 417 (8th Cir. 1985)], 771 F.2d at 420. . . .

". . . [T]he Board's desire to resolve the dispute before its evening adjournment did not preclude Clark from exercising his free will at the time he executed the Agreement. Also, any failure of Clark's representative to discuss the agreement and its implications does not equate to the Board's imposition of duress on Clark."