Highlights of This Issue

United States Supreme Court Action

Use of "Hitching Post" by Prison Guards for Prisoner Discipline Was Unconstitutional.

Hope v. Pelzer, 122 S.Ct. 2508, No. 01-309 (2002).

In this prisoners' rights case the Court ruled 7-2 in an opinion written by Justice Stevens that a prison inmate was subjected to cruel and unusual punishment in violation of the Eighth Amendment when prison guards handcuffed him to a so-called "hitching post" for disruptive behavior, despite his having already been subdued, where the guards knowingly subjected him to a substantial risk of physical harm, to unnecessary pain caused by the handcuffs and restricted his position of confinement for a seven-hour period, to unnecessary exposure to the heat of the sun, to prolonged thirst and taunting, and to the deprivation of bathroom breaks that created a risk of particular discomfort and humiliation.

The Court said the guards were not entitled to qualified immunity in view of a decision in their federal circuit, a state DOC regulation, and a Department of Justice report, all indicating that the use of a "hitching post" was unconstitutional.

The Chief Justice and Justices Thomas and Scalia dissented.

Federal and State Decisions

Arrest, Search and Seizure

Search Warrant: Post-Dating; Judge's Inadvertence

United States v. Hitchcock, 286 F.3d 1064 (9th Cir. 2002).

Federal. A DEA agent's otherwise valid search of a defendant's residence, conducted on the same date the agent obtained a search warrant from the court, was within the temporal scope of the warrant, notwithstanding the fact that the warrant was post-dated by one day, where the only reason the search warrant was post-dated was the judge's inadvertence, which was not attributable to the agent.

". . . We conclude that where an agent obtains a search warrant from the court and later that day conducts an otherwise valid search, the search is within the scope of the warrant, notwithstanding the fact that the warrant is post-dated by one day, so long as the evidence in the record indicates that the only reason the search warrant was post-dated was the court's inadvertence. . . ."

Strip Search: Station House; Municipal Open Container Violation; Crack Pipe

People v. Taylor, 741 N.Y.S.2d 822 (N.Y.App. 2002).

State. A strip search of a defendant at a police station incident to his arrest for a municipal open container violation, was reasonable once a police officer discovered a crack pipe, and the defendant began moving his torso and legs around in a suspicious manner, making it difficult for the officer, who was smaller in stature, to control him or search him further while awaiting assistance.

". . . Under these circumstances, there was reasonable suspicion to subject defendant to a strip search at the station house. . . ."

Stop and Frisk: Reasonable Suspicion; Unidentified Informant; Officer's Experience

United States v. Nelson, 284 F.3d 472 (3rd Cir. 2002).

Federal. A police lieutenant who was experienced in drugs and narcotics law enforcement received a tip from an informant, who did not identify himself, that two black males inside a gray BMW with a tag in the back window were "cruising the drive," "running our pockets" and "sticking us up." The court ruled that this constituted "reasonable suspicion," and thus when police officers made an investigatory Terry stop of a vehicle exactly matching the description broadcast by the lieutenant and on the street named in his report, they had reasonable suspicion for the stop.

The court said the lieutenant had reason to infer that the tipster, who called on a line whose number was disseminated only to family members and informants, was an informant and, based on the lieutenant's specialized knowledge of criminal activity and its location, a victim of criminal activity.

"While the informant's call did not merit as much credence as a face-to face report or a call from an informant who identified himself would have, nonetheless, the use of the private line and the officer's name, coupled with the accuracy and 'inside' nature of the information, as well as its urgency, afforded the call sufficient indicia of reliability to arouse a reasonable suspicion. . . ."

Interrogation

Miranda: Custody; Complete Control of Driver While Passenger Was Arrested

People v. Taylor, 41 P.3d 681 (Colo. 2002).

State. A court found Miranda custody where a defendant made incriminating statements about cocaine that was discovered in his vehicle pursuant to a search incident to his passenger's arrest. The court said that the detention was not a routine traffic stop, since defendant was pulled over solely because there was a warrant for his passenger's arrest, and once the passenger was arrested police officers asked for and kept defendant's license, removed and escorted him to the rear of his vehicle, and frisked and essentially pinned him against the back of the vehicle. The statement was made 19 minutes into the detention while the defendant was surrounded by armed uniformed officers and their patrol cars.

"The case before us today is different in significant ways from a 'routine traffic stop[]' . . . [Defendant] was 'completely at the mercy of the police.' Berkemer [v. McCarty, 468 U.S. 420 (1984)] 468 U.S. at 438, 104 S.Ct. 3138.

"Unlike the routine traffic stop[] at issue in Berkemer . . . this was a relatively lengthy detention and police dominated atmosphere where the officers used physical force to control Defendant's movement. . . . Accordingly, under the circumstances, we find that defendant was in custody when he made the inculpatory statements. Therefore, because the Defendant had not been advised of his Miranda rights, we affirm the trial court's suppression of these statements."

Miranda: Waiver; Voluntariness; Telling Suspect Possible Sentence He Faced and the Effect of Cooperation

United States v. Okafor, 285 F.3d 842 (9th Cir. 2002).

Federal. The defendant was arrested after a search of his luggage at an airport turned up cocaine. The court held he waived his Miranda rights voluntarily, even though customs agents told him that he faced a 10 to 20 year sentence and that cooperation could help him avoid a lengthy prison sentence.

Even if this were considered an "inducement," it was not sufficiently compelling to overbear the defendant's will in light of the totality of the circumstances.

"Common sense may indicate that a suspect's recognition of the potential consequences of his or her crime may create incentives for cooperation. But there is nothing wrong with that. We have held that 'recitation of the potential sentence a defendant might receive does not render a statement involuntary.' United States v. Bautista-Avila, 6 F.3d 1360, 1365 (9th Cir. 1993) (internal quotation marks omitted). The ten to twenty year possible sentence was accurate, and its recitation does not amount to coercion. . . . Those who do a crime may have to pay in time; and we do not hesitate to say that law enforcement may bring this to the suspect's attention. . . . [Likewise] inducements to cooperate are not improper and do not render a suspect's statement involuntary unless under the total circumstances it is plain that they have overborne the free will of the suspect. Here, under the total circumstances, including the length of time between discovery of the drugs and the statement [at least 45 minutes], the waiver of Miranda rights was valid and the ensuing statement to authorities was voluntary."

Trial Procedure

Expert Witness: Confession Admissibility; Social Psychologist

State v. Free, 351 N.J.Super. 203, 798 A.2d 83 (N.J.App. 2002).

State. A social psychologist, Dr. Saul M. Kassin, was not allowed to testify as an expert witness on the subject of coerced confessions since the opinions offered in his written report were not scientifically reliable and his proposed evidence failed to satisfy the evidentiary requirement that the nature of expert testimony must be such as will assist the trier of fact to understand the evidence or to determine a fact in issue. The court ruled that coercive factors mentioned by the psychologist, such as isolation, persistent questioning and minimization of consequences of a confession, were matters that a jury would recognize as having a potential for causing a false confession. As such, the jury did not need the assistance of expert testimony to weigh the admissibility of the defendant's confession.

"After reviewing the opinions from other jurisdictions, we are not satisfied that Dr. Kassin's 'premises have gained general acceptance,' Kelly [State v., supra, 97 N.J. 178, 478 A.2d 364 (1984)], at 210, 478 A.2d 364, and, therefore, we are convinced that the opinions offered in this report are inadmissible as not scientifically reliable.

"We are also convinced that the proposed evidence failed to satisfy the evidentiary requirement that the nature of expert testimony offered must be such as 'will assist the trier of fact to understand the evidence or to determine a fact in issue.' N.J.R.E. 702. This aspect of the direct predecessor to this Evidence Rule was described in Kelly, supra, as requiring proof that 'the intended testimony . . . concern a subject matter that is beyond the ken of the average juror.' 97 N.J. at 208, 478 A.2d 364. . . . the coercive factors mentioned by Dr. Kassin, such as isolation, persistent questioning, confrontation with real or fabricated evidence of guilt, and minimization of the consequences of confession, are all factors that a jury would recognize as having a potential for causing a false confession."

Civil Liability/Personnel Law

Police Pursuit: Striking Fleeing Suspect; "Shocks the Conscience" Test

Thomas v. City of Columbus, 198 F.Supp.2d 1360 (M.D.Ga. 2002).

Federal. A civil rights plaintiff was not "seized" by a police officer for Fourth Amendment purposes, as a result of accidentally being struck by a police officer's vehicle during the course of a pursuit. The plaintiff escaped the police after being sprayed with pepper spray, he was approximately 50 feet from the officer's vehicle and running directly toward it, and the officer slowed his vehicle to avoid striking plaintiff. The court also found no due process violation.

"As has been observed, 'police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving. A police officer deciding whether to give chase must balance on one hand the need to stop a suspect and show that flight from the law is no way to freedom, and, on the other, the high-speed threat to all those within stopping range, be they suspects, their passengers, other drivers, or bystanders.' County of Sacramento v. Lewis, 523 U.S. [833 (1998)] at 853, 118 S.Ct. 1708. Accordingly, 'high-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment, redressable by an action under section 1983.' Id. at 854, 118 S.Ct. 1708.

"No reasonable jury could conclude that either Spear's or Whitten's conduct in this case 'shocks the conscience.' Therefore, it cannot give rise to the violation of the Fourteenth Amendment. Accordingly, no 1983 claim can be maintained and summary judgment is appropriate."

Internal Affairs and Civil Case Statements: Garrity v. New Jersey; Admissibility in Criminal Case

United States v. Vangates, 287 F.3d 1315 (11th Cir. 2002).

Federal. In an internal affairs investigation of an alleged beating of a prisoner, a corrections officer was told that her statements could not be used against her in a subsequent criminal proceeding. Later, when the prisoner sued under 42 U.S.C. 1983, the officer testified after her attorney failed to tell her to plead the Fifth Amendment.

When her testimony was used against her in a subsequent criminal case, her claim of the privilege against self-incrimination based on Garrity v. New Jersey, 385 U.S. 493 (1967), was rejected. "Because we are satisfied that [she] could not have formed an objectively reasonable belief that her testimony in the civil case was compelled by any state action, we conclude that the district court [in her criminal trial] found correctly that the [civil trial] testimony was not protected by Garrity or the Fifth Amendment, and we affirm the conviction."

Right to Privacy: Police; Disclosure of Medications

Byrne v. Massachusetts Bay Transp. Authority, 196 F.Supp. 77 (D.Mass. 2002).

Federal. A policy of a transportation authority requiring police officers, as safety-sensitive employees, to "consult with Medical Operations before using prescription or over-the-counter medications that may contain alcohol or other substances that may impair their ability to perform safety-sensitive duties" did not violate a state privacy law or the Fourth Amendment. The court said the authority's interest in safety justified a relatively limited intrusion on the officers' privacy by requiring the disclosure of medications.

". . . . In the first place, the intrusion into the plaintiffs' privacy is not very great. The information the Policy requires the plaintiffs to disclose is the same which would commonly occur during a routine face-to-face examination by a medical officer. Moreover, the information is not disseminated. Under the Policy, employees only disclose the medications they are taking to a Medical Operations doctor or nurse. . . . The doctor or nurse then determines 'whether the employee's use of the medication could impair the employee's performance or jeopardizes the safety of the employee, his/her co-workers or the public.' Id. The Medical Operations staff contacts the employee's supervisor only if the employee is disqualified by reason of his taking the medication from some or all of his duties. Id. The supervisor is not told any information other than the employee's job restrictions 'unless the employee requests in writing' that the supervisor receive additional information. Id.

"On the other side of the scale, the MBTA has a substantial interest in ensuring that its police officers' faculties are unimpaired not only by prohibited drugs or alcohol but also by any medications they are legitimately taking. The potential for harm to either MBTA employees or to the general public is just as great when an officer is impaired by illegal medications as when he is impaired by legal drug use. On balance, the MBTA's interest in safety justifies the relatively limited intrusion on the plaintiffs' privacy created by the required disclosure of medications."