A.D.A. and the Deaf. In this issue: Third Party Consent. Blue Lights as a Seizure. Public Nuisance. Street Pat-down

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1 A Newsletter for the Criminal Justice Community A.D.A. and the Deaf In this issue: Third Party Consent Blue Lights as a Seizure Public Nuisance Street Pat-down Legal Eagle Published by: LegalEagleServices.net West Palm Beach, FL B. Krischer, Editor Robert Seremeth and his daughter got into a violent dispute. 911 was called, the domestic disturbance was reported along with the fact that the family was deaf and there were no weapons in the house. Dispatch warned the responding deputies that the entire family is deaf and advised them to use their headlights to alert the residents of their presence. Sheriff s deputies had been to Seremeth s house on three or four occasions for domestic disputes. In each of the previous instances, Seremeth was able to communicate with the deputies with notes, and he was not charged with an offense. On this call the dispatcher contacted Meg Ryan, an officer with the city police department who was learning American Sign Language ( ASL ), to help communicate with Seremeth. When the deputies arrived they signaled their presence with flashlights, Seremeth opened the door, the deputies had their guns drawn, Seremeth was handcuffed, hands behind his back, removed from the home and seated outside. This, a deputy testified, was standard procedure for a domestic violence call. The handcuffs prevented Seremeth from writing notes or signing, so the deputies could not effectively interview Seremeth, and Seremeth could not ask why he was being detained. The sheriff s office had professional qualified-interpreter services available to it by contract with Maryland Interpreting Services. The contract provides for an emergency interpreter to arrive within one hour of the request. Seremeth was brought inside, and Seremeth s father, who is somewhat able to read lips and speak understandably, attempted to interpret for Seremeth and the officers. Ryan arrived 45 minutes into the encounter, carrying her ASL course book. Her efforts to communicate failed. Through the questioning, with Seremeth s father as an interpreter, and more than an hour into the encounter but about ten minutes after Ryan had arrived, the deputies determined no abuse had occurred, and they left. Seremeth sued the sheriff and the county claiming he suffered emotional issues and persistent anger because the county violated [his] right to communicate by handcuffing him behind his back and failing to explain their presence. The suit was for violations of the Rehabilitation Act and the A.D.A. Legal Officers Eagle should consult with their agency advisors to confirm 1 the interpretation provided in this publication and June to 2012 what extent it will affect their actions.

2 Issue: Did the responding deputies make sufficient accommodations for the suspect s disability during their investigation so as to be in compliance with the Americans with Disabilities Act? Given that the deputies were responding to a domestic violence report, Yes. The A.D.A.: The ADA provides, No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. Discrimination includes not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability. While it was undisputed that Seremeth had a disability and was a qualified individual, the question remained whether the county s criminal investigation is covered by the ADA. The Court of Appeals found, based upon precedent that the ADA applied to police interrogations. See Waller v. Danville, (4th Cir. 2009) (noting that courts recognize an ADA case is established when police properly arrest a suspect but fail to reasonably accommodate his disability during the investigation or arrest, causing him to suffer greater injury or indignity than other arrestees. ). Seremeth argued that because the deputies did not alter their protocol to allow him to be handcuffed in front of his body so he could write notes to the deputies and thereby communicate effectively, he was denied reasonable accommodation. Seremeth also claimed that because the deputies did not provide a qualified interpreter, they did not reasonably accommodate him. The U.S. Court of Appeals found that the exigencies of the circumstances permitted the police take the action they did, despite its impact on Seremeth. A public entity must make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity. With regard to communicationrelated disabilities, the regulations require public entities to take appropriate steps to ensure that communications with... members of the public... with disabilities are as effective as communications with others. Auxiliary aids include qualified interpreters on site, exchange of written notes, The court went on to find that the ADA does not trump legitimate law enforcement needs when responding to an emergency situation. The sheriff s deputies knew that they were going to a house where deaf people live; the deputies attempted to engage in conversation with a hearing-impaired individual and that at- tempt to communicate failed; the sheriff s office had a contract for a qualified interpreter; the deputies could have handcuffed Seremeth in front of his body to allow him to write notes; and Seremeth lacked the ability to communicate without notes or the use of his hands to sign. Nevertheless, as in the criminal procedure context, we are reluctant to question the snap judgments of law enforcement officials in situations in which a reasonable officer would fear for his safety and for the safety of those he is charged to protect. The deputies were responding to a domestic disturbance call, which Deputy Rohrer characterized as some of the most dangerous calls that we ever go on. The deputies were obligated to assure themselves that no threat existed against them, Seremeth s children, or anyone else. The deputies could not rely on a phone call claiming that there were no weapons in the house to do so would be a failure in their duty and training. Moreover, the exigency justified keeping Seremeth handcuffed behind his back, as is standard procedure in dangerous situations. The entire encounter took an hour and fifteen minutes before the deputies concluded that there was not probable cause to arrest Seremeth or remove him from his home to protect his children. WeInterpret could have taken up to an hour to provide an interpreter. The deputies were not required to wait until an interpreter arrived in order to perform their duty and attempt to question Legal Eagle 2

3 Seremeth. The accommodations afforded to Seremeth by the deputies were reasonable given their overwhelming need to obtain information quickly to protect themselves and others from possible violence. Judgment ordered for the sheriff and the county. The following quote is from Model Policy for Law Enforcement on Communicating with People who are Deaf or Hard of Hearing, published by DOJ. The input of people who are deaf or hard of hearing who are involved in incidents is just as important to the law enforcement process as the input of others. Officers must not draw conclusions about incidents unless they fully understand -- and are understood by -- all those involved, including people who are deaf or hard of hearing. People who are deaf or hard of hearing must not be charged for the cost of an auxiliary aid or service needed for effective communication. See also, Communicating with People Who Are Deaf or Hard of Hearing; ADA Guide for Law Enforcement Officers. BEK Seremeth v. Brd of County Comm rs U.S. Court of Appeals 4th Cir. March 12, 2012 Honoring Officers Killed in 2011 Total Line of Duty Deaths: 173 9/11 related illness: 6 Aircraft accident: 1 Animal related: 1 Assault: 5 Automobile accident: 35 Drowned: 4 Duty related illness: 7 Explosion: 1 Gunfire: 67 Gunfire (Accidental): 5 Heart attack: 11 Heat exhaustion: 1 Motorcycle accident: 5 Stabbed: 2 Struck by vehicle: 4 Training accident: 1 Vehicle pursuit: 4 By Month January: 18 February: 14 March: 24 April: 11 May: 16 June: 16 July: 16 August: 15 September: 10 October: 7 November: 7 December: 19 By Gender Male: 162 Female: 11 Statistics Average age: 41 Average tour of duty: 13 years, 2 months Read more: year=2011#ixzz1wi36w4mp Legal Eagle 3

4 Recent Case Law Third Party Consent Jasheene Ward was staying in a room at his mother house. Police arrived and defendant s mother answered the door and told police that she was the owner of the home and that the defendant had been staying with her for about four months. Police testified the mother consented to a search of the premises after they informed her that they believed Ward had drugs in his room resembling candy. Defendant s mother told the police she made the defendant s bed, did his laundry and had regular access to his bedroom. In the defendant s bedroom closet and behind a pair of jeans on an upper shelf, police found a box. Inside the box was a bag containing ecstasy pills. The closet had doors and contained adult men s clothing. The defendant argued at the motion to suppress that the evidence at the hearing failed to establish that his mother had either the actual or apparent authority to consent to a search of the box found in the bedroom closet. The trial court denied the motion. The 4 th D.C.A. disagreed. Issue: Did the police reasonably rely on the mother s consent to search her adult son s bedroom closet and the secreted box therein? No. Third Party Consent: The U.S. Supreme Court discussed this issue in Illinois v. Rodriguez (S.Ct. 1990). There the police relied on a defendant s girlfriend s representations to enter his apartment. Her statements were false but the Supreme Court found the police reasonably relied on those representations. What [defendant] is assured by the Fourth Amendment is not that no government search of his house will occur unless he consents; but that no such search will occur that is unreasonable. As with the many other factual determinations that must regularly be made by government agents in the Fourth Amendment context, the reasonableness of a police determination of consent to enter must be judged not by whether the police were correct in their assessment, but by the objective standard of whether the facts available at the moment would warrant a person of reasonable caution in the belief that the consenting party had authority over the premises. If not, then warrantless entry without further inquiry is unlawful unless authority actually exists. But if so, the search is valid. Common authority rests on mutual use of the property by persons generally having joint access or control for most purposes... The Fourth Amendment prohibition against warrantless searches of an individual s property does not apply when officers obtain consent either from the individual whose property is to be searched or from a third party who possesses common authority over the premises. Common authority over the premises, however, does not, in and of itself, permit search of any personal property contained within the premises. A third party cannot validly consent to a search of personal property belonging to another unless there is evidence of both common authority over and mutual usage of the property. Applying such principles, Florida s appellate courts have held that a livein girlfriend lacked the actual or apparent authority to consent to a search of a backpack in the garage, where she specifically identified the backpack as belonging to the defendant; that the defendant s wife lacked actual or apparent authority to consent to a search of a safe in the master bedroom closet, where she told police she did not have a key to the safe; and that the defendant s mother lacked actual or apparent authority to consent to a search of a desk in the bedroom the defendant shared with his wife and son where police did not determine the mother owned or used the desk or had regular access to its contents. Here, even assuming the mother s regular access to the defendant s room for purposes of laundry and making the bed were sufficient Legal Eagle 4

5 to substantiate the mother s apparent authority to consent to a search of the defendant s bedroom, such facts were insufficient to allow police to conclude the mother had actual or apparent authority to consent to a search of the box. The box was in a closet that contained only men s clothing and was hidden away on an upper shelf and behind a pair of jeans. There was nothing in the information known to police to suggest any mutual usage of, or common control over, the box. The trial court thus erred in denying the motion to suppress. Defendant s conviction is accordingly, reversed. The police may rely on a person s representation that they have the authority to waive a third party s Fourth Amendment rights if the facts surrounding those representations are reasonable. However, police may not always accept a person s invitation to enter, where the surrounding circumstances could conceivably be such that a reasonable person would doubt its truth and not act upon it without further inquiry. For example, a hotel/motel manager or apartment landlord cannot grant permission for the police to enter a guest s or tenant s apartment without exigent circumstances. It is true that the night clerk clearly and unambiguously consented to the search. But there is nothing in the record to indicate that the police had any basis whatsoever to believe that the night clerk had been authorized by the defendant to permit the police to search the defendant s room. In the instant case the 4 th D.C.A. expands upon that rule by asserting that the police must ascertain whether the party granting consent who enjoys common access to the shared area also enjoys mutual usage of, or common control over, the area or item to be searched. In this case because the box was hidden from general view it was not reasonable for the police to believe that the defendant s mother had the authority to waive her son s 4 th Amendment rights in the box. Ward v. State 4 th D.C.A. (May 16, 2012) Blue Lights as Seizure B.S.O. deputy testified that he was on duty and at 2:30 a.m., when he noticed an occupied SUV parked in front of a vacant open field. The SUV was legally parked, and its interior lights, headlights, and tail lights were all turned off. The deputy saw one individual in the vehicle, seated in the driver s seat. The deputy testified that he became suspicious once he saw that the vehicle had no lights on. The deputy pulled in front of the SUV and parked almost catty corner to where the SUV was parked, he denied that he blocked in the SUV. The deputy activated his overhead emergency lights. He said he did this so that he would not be hit by oncoming traffic. The deputy also illuminated his spotlight to see the occupant of the vehicle. The deputy approached the vehicle to investigate why the person was sitting in the car. Prior to his approach he did not know if the occupant was hurt or injured. As the deputy approached the vehicle, he detected the odor of marijuana. The deputy asked to see defendant s driver s license. The deputy noticed a partially smoked marijuana cigarette in the ashtray. The deputy then arrested defendant. While conducting a search incident to the arrest, the deputy found a small bag of marijuana and a bag of cocaine. The trial court found the encounter and resultant discovery lawful. The 4 th D.C.A. disagreed. Issue: Did the deputy seize the defendant by activating his emergency lights and spotlight prior to detecting the odor of marijuana? Yes. Police-Citizen Encounter: The Florida Supreme Court in Popple v. State (Fla. 1993) described three levels of police-citizen encounters: 1) a consensual encounter involving minimal contact during which the citizen is free to leave; 2) an investigatory stop or detention which requires a well-founded suspicion of criminal activity; and 3) an arrest supported by probable cause that a crime has been committed, or is being committed. The issue raised in this case is whether the defendant would have perceived that he was seized by the deputy, or was free to leave. In distinguishing between a consensual encounter and a seizure, courts analyze whether, under the totality of the circumstances, a reasonable person would feel free to disregard the police and go about his business. The 4 th D.C.A. had previously Legal Eagle 5

6 ruled that an officer s use of emergency lights evidences an investigatory stop rather than a consensual encounter because the use of emergency lights leads the citizen to believe that he or she is no longer free to leave. This automatic rule was overruled by the Florida Supreme Court in G.M. v. State (Fla. 2009). (See, Legal Eagle, Blue Lights as Police Seizure, November 2009). The Court disapproved of those cases standing for the absolute and inflexible proposition that activation of police lights alone always constitutes a seizure. Rather, the Court held that per se rules remain disfavored under Fourth Amendment jurisprudence, and activation of police lights is only one important factor to be considered in a totality-of-thecircumstances analysis of whether a seizure in the constitutional context has occurred. That said, the Florida Supreme Court went on to rule, It strains the bounds of reason to conclude that under these circumstances, a reasonable person would believe that he or she was free to end the encounter with police and simply leave. Moreover, it would be both dangerous and irresponsible for this Court to advise Florida citizens that they should feel free to simply ignore the officers, walk away, and refuse to interact with these officers under such circumstances. Instead, as a matter of safety to both the public and law enforcement officers, we conclude that a citizen who is aware of the police presence under the specific facts presented by this case is seized for Fourth Amendment purposes and should not attempt to walk away from the police or refuse to comply with lawful instructions. The 4 th D.C.A. concluded that the totality of the circumstances wherein a deputy sheriff approached a vehicle after activating his blue lights and spotlight rendered the vehicle occupant seized as a matter of 4 th Amendment law. In this case, the question is whether defendant was seized before the officer approached his vehicle and smelled the marijuana. Activation of emergency police lights is one factor to be considered in a totality-of-the-circumstances analysis of whether a seizure has occurred. Likewise, use of a spotlight or flashlight is another factor to be considered in evaluating whether a person would reasonably believe he was free to leave, but the use of a spotlight, without more, does not transform a consensual encounter into an investigatory stop. We acknowledge that if a person is parked on the shoulder of a highway, or otherwise gives some indication to a police officer that he might be in need of assistance on the roadway, a reasonable person in such circumstances would not necessarily perceive the officer s use of emergency lights as a show of authority. However, in this case there was no objective indication that defendant was in need of aid, nor did defendant exhibit any conduct to indicate that he sought police assistance. Under the totality of the circumstances, where, as here, defendant was legally parked on a residential street and did not give any indication that he might be in need of police assistance, no reasonable person would have felt free to drive away after an officer activated his emergency lights and used a spotlight to illuminate the person s parked vehicle. This is not a case where a reasonable person would have perceived the activation of emergency lights as a mere safety precaution and felt free to leave. Therefore, defendant was seized for Fourth Amendment purposes when the officer activated his emergency lights and used a spotlight to illuminate defendant s vehicle. Because the deputy seized defendant before detecting the odor of marijuana, and because the seizure was not founded upon reasonable suspicion, we reverse the denial of the motion to suppress. First it is important to remember that a police-citizen contact where the officer lacks specific factual knowledge that the suspect is engaged in criminal activity, the detention, if any, will be perceived as supported by no more than a hunch which is not sufficient to justify an investigatory stop. A consensual encounter can rapidly escalate into an investigatory stop by the LEO asserting his authority and directing the individual to step out of his vehicle, or even to lower his window. It is clear that despite the courts paying lip service to the legal ruling that activating emergency lights does Legal Eagle 6

7 not in-and-of-itself seize the vehicle occupants this case and others, G.M. v. State, make clear that if the individual is aware of the emergency lights a seizure has occurred. Here, the deputy testified that he activated the blue lights to warn oncoming traffic that he was parked in the roadway. The court found his subjective intent irrelevant. While the officer may have subjectively intended to activate his blue lights solely for his safety and the safety of others on the road, the litmus test is the objective belief of a reasonable person in the position of the defendant, not that of the officer. These types of situations may be addressed by relying on the community caretaking function of law enforcement. That is, the deputy was not attempting to investigate possible criminal behavior but rather was seeking to verify the physical well being of a lone motorist stopped on the side of the road in the early morning hours with no lights on or other apparent activity. Rather than immediately requesting the individual s driver s license, an inquiry into his health and wellbeing would substantiate the purpose of the contact. Smith v. State 4 th D.C.A. (April 25, 2012) Public Nuisance in a Dwelling Patrol deputies noted unusual foot traffic going in and out of Barbara Ratliff's apartment. The information was passed on to drug agents who set up surveillance on the apartment. The agents noted known drug offenders entering and leaving the apartment. After stopping and interviewing a number of persons exiting the apartment with regard to drug use, the detectives arrested Ratliff for Keeping or Maintaining a Public Nuisance, a third degree felony. The defendant moved to dismiss the charges arguing the applicable statute did not apply to her conduct. The trial court denied the motion, the 2 nd D.C.A. disagreed. Issue: Does maintaining a drug operation out of one s dwelling constitute a public nuisance? No. Public Nuisance: F.S , Abatement of Nuisances, provides the procedure for identifying and enjoining a public nuisance. F.S criminalizes maintaining a public nuisance. The latter statute provides: (1) Any store, shop, warehouse, dwelling house, building, structure, vehicle, ship, boat, vessel, or aircraft, or any place whatever, which is visited by persons for the purpose of unlawfully using any substance controlled under chapter 893 or any drugs as described in chapter 499, or which is used for the illegal keeping, selling, or delivering of the same, shall be deemed a public nuisance. No person shall keep or maintain such public nuisance or aid and abet another in keeping or maintaining such public nuisance. The statute describes the behavior alleged to have been committed by the defendant, and formed the basis of the charge. Unfortunately, the statute goes on to provide: Any person who willfully keeps or maintains a public nuisance or willfully aids or abets another in keeping or maintaining a public nuisance, and such public nuisance is a warehouse, structure, or building, commits a felony of the third degree,... In response to the defendant s motion to dismiss the State argued that because a dwelling is a structure or, alternatively, a building it is subject to the criminal provision in the statute. The D.C.A. did not agree. The 2 nd D.C.A. interpreted the statute more narrowly, thus sustaining the defendant s motion to dismiss. For the State s argument to prevail here, we would have to read the last sentence of subsection (1) in isolation. However, we are required to read it within the context of the entire subsection in order to ascertain legislative intent...the second portion of section (1), which criminalizes keeping or maintaining a public nuisance, mentions only a warehouse, structure, or building, while the first portion of the statute, which explains what constitutes a public nuisance, lists store, shop, warehouse, dwelling house, building, structure, vehicle, ship, boat, vessel, or aircraft, or any place whatever. This indicates that the legislature intended to consider dwelling house, building, and structure separately. Because the statute prohibits the public nuisance in a warehouse, structure, or building and it is undisputed that the subject of this case was a dwelling, the statute does not apply to Ratliff s con- Legal Eagle 7

8 duct. Accordingly, we reverse Ratliff s judgment and sentence and remand for the trial court to enter an order of dismissal. While common sense dictates that a dwelling is a building or structure the rules of statutory construction (how laws are interpreted) require a narrow reading. Florida Statute provides that where there is an ambiguity in the law the court is to resolve that issue in the defendant s favor. Thus, it would require an expansive reading of the public nuisance statute to criminalize the described behavior when it occurs inside a dwelling. Therefore, F.S cannot be used to charge an individual with maintaining a public nuisance inside a dwelling house. Of course the suspect could be charged with violations of chapter 839., controlled substance law, based on the testimony of a confidential informant, or a controlled buy. Ratliff v. State 2nd D.C.A. (March 25, 2011) Street Pat-Down An officer responding to a burglary in his zone observed the defendant acting suspiciously walking quickly from the area. The officer stopped him and obtained consent for a patdown. He felt numerous articles tucked into his socks and under the pants legs. The officer knew the objects were not weapons, but he had a feeling that the items were property. Nevertheless, he reached into defendant s pants and removed a camera, two ipods, a watch, and U.S. currency. The defendant s motion to suppress was denied, the 4th D.C.A disagreed. Issue: Was the frisk and search of Santiago permissible under Florida law and the 4 th Amendment? No. Stop-and-Frisk: One of the recognized circumstances justifying a weapons pat-down is the combination of the defendant s nervousness and the officer s observation of a bulge in the defendant s clothing. However, when an officer conducts a weapons pat-down after observing a bulge in a suspect s clothing, it is incumbent that the officer also testifies that before the patdown he or she suspected that the bulging object could be a weapon. The 4th D.C.A. noted that while there was testimony concerning the bulges in defendant s pants and his scared demeanor, the officer did not provide testimony indicating that he had any suspicion or feared that Santiago was armed with a dangerous weapon. The officer merely testified that defendant had a history of resisting and being rude. We hold that the facts in the instant case are insufficient to establish that the officer had a reasonable suspicion that defendant was armed with a dangerous weapon, which would have allowed him to conduct a pat-down search. The 4 th D.C.A. found the trial court s decision to deny the defendant s motion to suppress was reversible error. Considering the record before us, it is significant that before the pat -down occurred the officer had no description of the suspect or any items that may have been stolen during the burglary. Moreover, nothing transpired during the pat-down to authorize a more extensive search on the basis of probable cause. Here, all that was revealed from the pat-down was the officer s feeling that the items were property. Notably, the officer did not even testify that he believed the items were contraband, only that he knew the items were property. Regardless, this feeling was insufficient to legitimize the seizure. Therefore, we conclude that the officer s testimony did not demonstrate probable cause. Reversed and remanded. This case is a good example of excellent police work that was undermined by report writing and/or court testimony. The officer clearly had some apprehension given the handcuffing of the defendant, yet he failed to testify to those safety concerns. And while he did not have a description of the property stolen, given where the items were concealed on the defendant s person he reasonably believed the property to be stolen and hence contraband; but he never testified to that thought process. Even without a valid consent, his observations of Santiago on the street, his demeanor, his knowledge of his prior criminal history, the officer s experience, knowledge, and training more than supported the pat-down. But the officer failed to tie all those elements together into a cohesive description that supported his thought process and actions. Legal Eagle 8