Highlights of This Issue

United States Supreme Court Action

Supreme Court Will Review State Case That Held Canine Sniff of Car Stopped for Speeding Was Unconstitutional Without Reasonable Suspicion.

People v. Caballes, 207 Ill.2d 504, 2003 WL 22725527 (Ill. 2003). certiorari granted, No. 03-923.

A state trooper stopped defendant for speeding on an interstate highway. Defendant said he was moving from Las Vegas to Chicago, but the only visible belongings were two sport coats in the back seat of the car. The officer testified that the car smelled of air freshener and that the defendant was dressed in a business suit even though he was unemployed. A request to search the car was refused by the defendant. As the officer was writing a ticket for speeding, another officer arrived with a drug-detection dog and began walking around the car. After the dog signaled an alert, the officers searched the car and found marijuana.

This was found to be a violation of the Fourth Amendment. The Illinois Supreme Court said:

"The state has not offered sufficient justification for implementing a canine sniff. The police did not detect the odor of marijuana in the car or note any other evidence suggesting the presence of illegal drugs. . . . Although [the officer] did not actively summon [the] dog for purposes of conducting a canine sniff . . . the police impermissibly broadened the scope of the traffic stop in this case into a drug investigation because there were no specific and articulable facts to support the use of a canine sniff. . . ."

The United States Supreme Court has taken this case on review to determine whether the canine sniff at the traffic stop required reasonable suspicion, independent of the traffic stop. A decision is expected this Fall and will be reported in LELR.

Traffic Stop: Unnecessary Detention; Conducting a Computer Check on License

United States v. Garrido-Santana, 360 F.3d 565 (6th Cir. 2004).

Federal. When a police officer ran a computer check on a rental vehicle's license plate to ensure that defendant was lawfully operating the vehicle, this did not exceed the scope and duration of a valid traffic stop for a speeding violation and did not violate the Fourth Amendment. The court said that although defendant provided the officer with a valid driver's license and rental agreement, and the rental agreement provided for an additional driver, defendant's name was not listed on the agreement, and defendant's signature on the agreement was illegible, thus justifying further investigation by the officer.

"At the suppression hearing, Lomax [officer] testified that, after looking at the rental agreement 'closely,' he ran the computer check on the vehicle's license plate because he did not see defendant's name 'listed'--or printed--on the agreement. Lomax elaborated that about ninety-nine percent of the rental agreements that he had seen listed the name of the additional driver in the same type of print in which the renter's name was listed. Lomax testified that he first recognized the signature on the rental agreement as defendant's after he had returned to the police station and was comparing that document with defendant's driver's license and the courtesy ticket that defendant had signed. As to whether it was reasonable to believe that the vehicle was stolen, Lomax underscored that, along with defendant's name not being printed on the rental agreement, Lomax knew of instances in which authorized individuals had not done something that the rental agreement required them to do. As Lomax testified, '[t[here are always reasons to do checks.'"

Miranda: Interrogation; Functional Equivalent; "Tell Your Side of the Story"

State v. Hebert, 82 P.3d 470 (Kan. 2004).

State. A police officer's question to a defendant, who had shot another police officer, "Would you like the opportunity to tell me your side of the story?," preceded by several requests by the officer that he wanted to hear defendant's side of the story in his own words, was the functional equivalent of "interrogation." Since the defendant was already in Miranda "custody" (under arrest), Miranda warnings were required.

"In this case, Agent Cordts testified that he was shocked that the defendant responded with an incriminating statement. This court, however, is not concerned with the agent's subjective feelings, but whether he or she should have known his or her words were reasonably likely to elicit an incriminating response. . . .

"Before asking, 'Would you like the opportunity to tell me your side of the story,' Agent Cordts told the defendant that he would like to hear his side of the story in his own words. This is exactly what the defendant did. The officer should have known that the defendant, who had made no previous statement, who knew he had shot the officer, and who had been in custody for several hours, might be anxious to take him up on this request to hear his side of the story. . . ."

Police Witness: Expert on Computer Program

Williford v. State, 127 S.W.3d 309 (Tex.App. 2004).

State. A police detective was qualified to testify about a mirror image of the hard drive on defendant's computer containing child pornography that he made using a specialized computer program, in defendant's trial for possession of child pornography. The detective was a computer expert for his police department and was knowledgeable about the program, the program was generally accepted in the computer forensic investigation community, the detective had successfully used the program in the past, the program had a low potential rate of error, and several articles had been written about the program, including one magazine that gave the program a five-star rating out of five stars.

". . . [The detective] testified that EnCase [the computer program] is generally accepted in the computer forensic investigation community, that EnCase is used worldwide, that he knew how to use EnCase, that he knew how EnCase worked, that he had successfully used EnCase in the past, that EnCase can be tested by anyone because it was commercially available and anyone could purchase it, that EnCase has been tested, that there have been several articles written about EnCase and other computer forensic software programs, that SC Magazine gave EnCase an overall five-star rating out of five stars, that EnCase has a low potential rate of error, that he successfully copied appellant's hard drive by using EnCase, and that EnCase verified that he had successfully copied appellant's hard drive. Detective Owes described in detail for the trial court how EnCase worked. . . ."

Excessive Force: Removing Passenger From Car With Drawn Gun; Reasonableness

Heyward v. Christmas, 593 S.E.2d 141 (S.C. 2004).

State. A highway trooper's acts of entering a car, with his gun drawn, to extract a passenger was objectively reasonable for purposes of the passenger's civil rights action alleging the use of excessive force in making an arrest, relating to the passenger being accidentally shot in the thigh. The crime being investigated was severe, because several shots had been fired from the car at one of the pursuing officers, the driver had already exited the vehicle without a gun, allowing the trooper to reasonably conclude that the gun was either still in the car or in the passenger's possession, the passenger had failed to comply with the officers' orders to exit the car with his hands raised, the trooper was forced to make a split-second judgment, and the trooper did not want to holster his gun due to his fear that he might be unable to retrieve it quickly if it was needed.

The action of the trooper was deemed reasonable even though he could have placed himself in a protective position and could have used the patrol car's public address system to give orders.

"While Trooper Christmas could have placed himself in a protective position and could have used the public address system to give orders to respondent, considering those facts is exactly the type of analysis prohibited by [Graham v. Connor, 490 U.S. 386 (1989)]. See Graham . . . (reasonableness of particular use of force must be judged from perspective of reasonable officer on the scene, rather than with 20/20 hindsight); Anderson v. Russell, [247 F.3d 125 (4th Cir. 2001)], . . . (declined to adopt 20/20 hindsight to second guess officer's decision to shoot rather than take cover, given officer reasonably believed his life to be in imminent danger)."