Do No Harm. In this issue: LEO Destroying. Wardlow Based Stop. Reasonable Suspicion. A Newsletter for the Criminal Justice Community

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1 A Newsletter for the Criminal Justice Community Do No Harm In this issue: LEO Destroying Evidence Wardlow Based Stop Reasonable Suspicion Legal Eagle Published by: Office of the State Attorney West Palm Beach, FL B. Krischer, Editor Kelly Wallace, on behalf of her mother s estate, sued Sheriff Ed Dean for the negligent actions of his deputies. In her suit Ms. Wallace explained that she lives out of state. When she could not reach her mother telephonically she requested the next door neighbor to make a welfare check. Getting no response to their knock on the door, the neighbors called 911. Two deputies responded. One entered the home through a window and then let the other deputy and the neighbors in through the front door. They discovered Brenda Wallace on the couch, breathing but unresponsive, even when the officers called her name loudly and shook one of her legs. The neighbor suggested that she might be in a diabetic coma, but, according to the complaint, the deputies told him that one does not snore if in a diabetic coma. Although it was suggested that they call an ambulance, the deputies did not call for medical assistance. Instead, the deputies suggested that they leave the door unlocked and return to check on her later. The next morning, the neighbor again found Brenda unresponsive, and, once more, called 911. Emergency medical personnel responded to the call and transported her to the hospital where she died several days later, without regaining consciousness. The 5 th D.C.A. dismissed Wallace s suit, by characterizing the deputies actions as passive nonfeasance (rather than active negligence), which, according to the D.C.A., at most exhibited poor judgment. On appeal to the Florida Supreme Court, the Court reversed the dismissal and reinstated the case for trial. Issue: If a law enforcement officer undertake a well-being check, and, during the course of that check, he discovers a person wholly dependent upon him for emergency aid, is he then under an affirmative duty to render that aid? Yes. Duty of Care: The Florida Supreme Court observed that the threshold matter was whether the Sheriff s deputies owed Brenda Wallace any duty of care, because there can be no governmental liability unless a common-law or statutory duty of care existed that would have applied to an individual under like circumstances. A duty of care is a minimal threshold legal requirement for opening the courthouse doors. Legal Officers Eagle should consult with their agency advisors to confirm 1 the interpretation provided in this publication and June to 2013 what extent it will affect their actions.

2 The Court also noted that unlike Everton v. Willard, (Fla.1985), this case did not involve the discretionary decision of whether to arrest a suspect (for DUI) or whether to enforce the law; instead, it involved the affirmative act of providing a service to a specific individual (i.e., actually engaging and conducting a service on behalf of the individual), here Ms. Wallace. A special tort duty arises when law enforcement officers become directly involved in circumstances which place people within a zone of risk, [1] by creating or permitting dangers to exist, [2] by taking persons into police custody, [3] detaining them, or [4] otherwise subjecting them to danger. (This case at FN23 provides an extensive list of cases where a zone of risk was created). The Court found, Here, the Sheriff s deputies did not attempt to enforce any law and certainly were not engaged in the protection of the general public; instead, they affirmatively sought to provide a service (a 911 safety check) to a specific individual, Brenda Wallace (the decedent). Court s Ruling: The Florida Supreme Court made clear that they were not making a finding that the deputies were at fault, or were responsible for Wallace s ultimate demise, rather that the matter was appropriate for a jury trial on the merits. While we do not reach the question of whether the deputies ultimately breached the applicable standard of care in this case, we note that even poor judgment may result in negligence. A failure to conform to the standard [of care] is negligence, therefore, even if it is due to clumsiness, stupidity, forgetfulness, an excitable temperament, or even sheer ignorance... In other words, society may require a person not to be awkward or a fool. Having undertaken to respond to the 911 call, engaged the decedent, and completed this safety check and having allegedly placed the decedent in a zone of risk by failing to exercise reasonable care, which, as alleged, both increased the risk of harm to decedent and induced third parties-who would have otherwise rendered further aid-to forebear from doing so, we conclude that the Sheriff owed the decedent a common-law duty of care. This Court has long adhered to the common-law doctrine that in every situation where a man undertakes to act, or to pursue a particular course, he is under an implied legal obligation or duty to act with reasonable care, to the end that the person or property of others may not be injured by any force which he sets in operation, or by any agent for which he is responsible. If he fails to exercise the degree of caution which the law requires in a particular situation, he is held liable for any damage that results to another It is clearly established that one who undertakes to act, even when under no obligation to do so, thereby becomes obligated to act with reasonable care. Here, the allegations of the complaint support the conclusion that the Sheriff s deputies affirmatively and specifically undertook to provide aid to Brenda and then provided repeated assurances upon which Brenda s neighbor and daughter relied, which thereby increased the risk of harm that Brenda faced As alleged in the complaint, the conduct of these deputies placed Brenda in a readily recognizable zone of risk. These agents of the Sheriff responded to the scene, entered a home, engaged the unconscious resident, provided an assessment of her safety, and, further, assured concerned third parties that she was simply asleep and did not need medical attention. This alleged behavior satisfies the requirements of the undertaker s doctrine because the deputies, in a position of authority, increased the risk of harm that the decedent faced by inducing third parties-who would have otherwise rendered further aid (and actually requested that the deputies provide additional assistance, but were rebuffed)-to forebear from doing so. Accordingly, we hold that the complaint states a negligence-based wrongful-death cause of action against the Sheriff of Marion County. Lessons Learned: The Attorney General has issued three Opinions that directly relate to this issue. In AGO the Opinion references Webster v. State, (4DCA 1967), which held that the right of police officers to enter and to investigate in an emergency situation, without an accompanying intent to seize or arrest, is inherent in the very nature of their duties as peace officers and derives from the common law, thus no search warrant was required Legal Eagle 2

3 to legalize an entry by police for the purpose of bringing first aid to an injured or distressed person, their duty certainly being to effect a rescue or to render aid to someone whom they had reasonable belief was in dire peril. General authority suggests that the duty of one who voluntarily undertakes to care for and assist an ill or injured person is the same as that of one who is legally obligated to render such care or assistance. One who is under a duty to care for an ill or injured person is bound to use reasonable or ordinary care and to have a proper regard for the safety of such person, and is liable for further injury resulting from lack of proper care. As discussed above, law enforcement officers are under a legal duty to render emergency aid to the injured, ill, or distressed whether such officers are on-duty or acting in a law enforcement capacity while offduty. Thus, a law enforcement officer who renders emergency assistance to an injured, ill, or distressed person must exercise with reasonable care such competence and skill as he possesses, i.e., such skill as a person with 40 hours of first responder training would possess. See also, Zone of Risk, Legal Eagle, September, Wallace v. Dean Fla. Supreme Court (2009) (Continued from page 8) Reasonable Suspicion well as the Florida Supreme Court s ruling in Baptiste v. State, (Fla.2008) In Baptiste the Court ruled, Here, the record does not reflect any additional circumstances or facts which might have established a reasonable suspicion. At best, when the officer first observed Baptiste, he was merely walking down the street-not running away from the grocery store or engaged in any suspicious conduct. Additionally, when the officers viewed Baptiste, he was not engaged in any illegal, suspicious, or furtive behavior, and the officers did not see a firearm or any bulges in his clothing indicative of a gun... Thus, the sole basis for seizing Baptiste at gunpoint was the purely anonymous tip which, according to the specific requirements of our United States Supreme Court, failed to provide reasonable suspicion for Officer Williams to believe that Baptiste had or was engaged in illegal or dangerous conduct. The 3 rd D.C.A. went on to rule, This is precisely the case at bar. The arresting officer did not observe any criminal or suspicious activity prior to stopping and frisking J.H. We cannot find a single case that supports sweating or appearing out of breath as an evasive or suspicious activity. The dispatch also lacked any predictive information and thus, the Officer could not test the informant s knowledge or credibility. Here, the arresting officer only saw J.H. walking away from a gathering of people. She merely observed him sweating and catching his breath. She did not see any bulge in his clothing indicative of a weapon, or observe any illegal, suspicious or furtive behavior. The sole basis for the Officer s search and seizure of J.H. was the anonymous tip, which the Officer failed to corroborate. This is insufficient to generate reasonable suspicion to believe J.H. was armed and dangerous. We reverse the trial court s denial of the motion to suppress the gun. Lessons Learned: This is once again an example of good police work that runs up against the 4 th Amendment. From a proactive viewpoint, the officer got another gun off the street. Unfortunately the gun is the fruit of the poisonous tree and was suppressed, and the charges against the defendant dismissed. The anonymous tip mentioned a fight; there was none in progress when the officer arrived. The tip mentioned a Taser, there was no bulge observed on the defendant s person or clothing. There was no additional information available to the officer or facts that she could corroborate once on the scene. Her only other choice was simply to walk away. J.H. v. State 3 rd D.C.A. (Feb. 20, 2013) Legal Eagle 3

4 Recent Case Law LEO Destroying Evidence Two groups of acquaintances got into an altercation at a gas station convenience store. Mr. Barron was battered by Alex Bennett, the latter then fled the scene. Law enforcement arrived to investigate the situation. Shortly thereafter, officers located Bennett and arrested him. He admitted his involvement in the incident. An investigating detective viewed a video of the incident recorded by the convenience store s surveillance system. His report described what he saw on the video and also stated that he had downloaded it. But when Bennett s counsel requested a copy of the video in discovery, it was determined that the police had not in fact downloaded it and that the original recording had been automatically erased from the store s system. Bennett moved to dismiss the charges against him. His motion alleged that the video could have been used to impeach witnesses statements, and it described the video as evidence helpful to the defense. Issue: Did the police, and by extension the State, deny the defendant due process (i.e. a fair trial) by failing to properly preserve the video tape of the crime? No. Preservation of Evidence: There are various authorities requiring the police and State to preserve evidence discovered and gathered during their investigation into the crimes charged. Most important is the U.S. Supreme Court s pronouncement in Brady v. Maryland (S.Ct.1963), the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or the bad faith of the prosecution. In other-words the loss of the evidence may not have been the prosecutor s fault but it was certainly not the defendant s fault. The U.S. Supreme Court refined the materiality standard in United States v. Agurs, (S.Ct.1976), holding that: the mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense. The Court explained that the proper test was whether the suppressed information created a reasonable doubt of guilt that did not otherwise exist. The Agurs materiality test was further expanded in a 1985 case, where the court stated: The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. United States v. Bagley, (S.Ct.1985). The Supreme Court had another opportunity to analyze this issue in Arizona v. Youngblood, (S.Ct.1988), where the Court ruled the Due Process Clause of the Fourteenth Amendment, as interpreted in Brady, makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant... We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law...further the State is not required to perform any specific test. The situation here is no different than a prosecution for drunken driving that rests on police observation alone; the defendant is free to argue to the finder of fact that a breathalyzer test might have been exculpatory, but the police do not have a constitutional duty to perform any particular tests. Legal Eagle 4

5 Court s Ruling: The 2 nd D.C.A. ruled that because there were eye witnesses to the confrontation, the loss of the surveillance video as evidence did not deny the defendant a fair trial. When determining whether a defendant s due process rights have been violated by the State s destruction of or failure to preserve evidence, a court must first consider whether the missing evidence was materially exculpatory or only potentially useful. The State has a duty to preserve materially exculpatory evidence, i.e., that which might be expected to play a significant role in the suspect s defense. California v. Trombetta, (S.Ct.1984). The Trombetta Court described such evidence as having constitutional materiality, in that it possessed an exculpatory value that was apparent before the evidence was destroyed and was of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. In contrast, evidence that is merely potentially useful, posing only some likelihood of exonerating a defendant, does not reach the standard of constitutional materiality discussed in Trombetta. Failure to preserve such evidence is a denial of due process only when law enforcement acts in bad faith. Arizona v. Youngblood, (S.Ct.1988). As we pointed out in Bennett v. State, (2DCA 2009), the law is somewhat unsettled as to which side bears the burden of establishing whether the destroyed evidence is materially exculpatory or potentially useful. Under the facts of this case, however, we need not reach this issue. It is undisputed that the video showed the altercation between Bennett and Barron, but it is also undisputed that at least three people other than the two participants also witnessed it. Thus the defense can obtain evidence comparable to the video in the form of the eyewitnesses testimony. That being so, the unavailable video did not rise to the level of constitutionally material evidence. When the missing evidence is only potentially useful, as was the case here, a defendant must establish that law enforcement acted in bad faith in order to prove a violation of his due process rights. In the context of destroyed evidence, we have described bad faith as a flagrant and deliberate act done... with the intention of prejudicing the defense. State v. Powers, (2DCA 1990). Although the facts of this case reflected law enforcement s negligence, they clearly did not establish bad faith. We reverse the dismissal of the charges against Bennett and remand for further proceedings. Lessons Learned: As noted above, the Supreme Court has ruled that law enforcement has no obligation to perform any tests or gather evidence. However, once that evidence is used in the investigation, obtained and gathered, there is a legal duty to preserve that evidence. The purpose of the discovery rule is to aid a defendant in the preparation of his case, not to give him a gotcha to avoid prosecution. The mere fact that a tape recording that may have been utilized in evidence was destroyed does not require dismissal of charges. The burden is on State to prove the lost or destroyed tape was of no value to the accused. See, State v. Sobel, (Fla.1978). The 4 th D.C.A. also had occasion to discuss the failure to create a recording. The D.C.A. found that there is no case law or statute imposing a duty on law enforcement to record a criminal transaction or to perform any particular tests even where the agency has the means to do so. See, Youngblood. Because the failure to record the reverse sting transaction was not done in bad faith and did not deprive defendants of the ability to defend against the charges there was no violation of his rights. A due process (Brady) violation may also arise where the prosecution suppresses material evidence favorable to the accused. Neither Youngblood nor Brady applies here because a tape of the transaction was never made. State v. Daniels, (4DCA 1997). In a very recent case the defendant argued that the police and therefor the State violated his due process rights by not obtaining a copy of a store security tape. The State argued that the tape was never in the government s possession, was not exculpatory, and there was no evidence of bad faith. The 5th DCA agreed and reversed the dismissal of charges. See, State v. Hampton, 5DCA (May 17, 2013). State v. Benne 2 nd D.C.A. (April 17, 2013) Legal Eagle 5

6 Wardlow and High-Crime Area Kwmane Winter rode past a parked, unmarked, police vehicle on his bicycle and upon hearing excuse me, sir, can I talk to you? jumped off his bicycle and took off running. After a chase, Winter was caught and charged with armed resisting an officer with violence, possession of a weapon by a convicted felon, carrying a concealed firearm, and battery on a law enforcement officer. He moved to suppress the evidence, alleging that he was stopped without a reasonable suspicion and the search was conducted without probable cause. There was a disagreement as to whether Winter knew that his pursuers were police officers. The trial court never addressed that issue because he found insufficient evidence that the events occurred in a high-crime area. The trial court granted the motion to suppress. The 5 th D.C.A. agreed. Issue: What evidence must the State present to rely on the high-crime area designation announced by the U.S. Supreme Court in Illinois v. Wardlow? Illinois v. Wardlow: In Wardlow, the Supreme Court held that an individual s unprovoked, headlong flight from the police in a high-crime area can create sufficient reasonable suspicion to warrant an investigative Terry stop. The defendant in Wardlow fled immediately upon seeing a four-car caravan of police officers arrive in an area of Chicago known for heavy narcotics trafficking. He was chased down and found to be in possession of drugs, a gun, and ammunition. He filed a motion to suppress arguing that the police lacked founded suspicion to effect an investigative stop. In upholding his conviction, the Supreme Court explained that although an individual s presence in an area of expected criminal activity, standing alone, is not enough to support an investigatory stop, that factor, in addition to the defendant s unprovoked, headlong flight upon noticing the police provided reasonable suspicion that the defendant was involved in criminal activity, and further investigation under Terry was justified. In evaluating the defendant s actions in Wardlow, the Court emphasized that its decision was consistent with its prior decision in Florida v. Royer, (S.Ct.1983), holding that when an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business. Moreover, any refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure. However, the Supreme Court viewed an individual s actions in fleeing from a police officer as not a mere refusal to cooperate or going about one s business but just the opposite. The Court then observed that headlong flight-wherever it occursis the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. Relying on these two concepts, the Court concluded that flight from police could be one relevant factor in determining reasonable suspicion. The Supreme Court concluded that if, upon further investigation, the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go on his way. In other words, had the officers not found the defendant in possession of drugs and a firearm, he would have been free to leave. Court s Order: The 5 th D.C.A. agreed with the trial court s order suppressing Winter s firearm because the area of the stop was not sufficiently established to have been characterized as a highcrime area. The testimony in this regard was that the area was a high-crime area based on the multiple, multiple calls for service for crime and violent crime in that area and that the officers were in the area at the time of the incident because of the recent spike in the report of violent crimes in that area. There were no specifics given as to the number or types of crimes or where, within this quite large area designated as a high-crime area, the crimes occurred. While empirical studies or statistical data may not be required, vague testimony such as there being multiple narcotic complaints that go on out there would not establish a high-crime area. The testimony failed to convince the trial judge that the stop was justified and the record does not justify substitut- Legal Eagle 6

7 ing our own fact-finding for that of the trial court. AFFIRMED. Lessons Learned: There is no question that the Supreme Court relied on the highcrime area designation in its Wardlow decision. And while there are cases holding that running from the police, unprovoked head long flight, is a basis for reasonable suspicion, the fact is the Supreme Court did not make that finding in a vacuum. Wardlow was found in a highcrime area; thus it is an element that must be established if the trial court is to rely on the Wardlow decision. In that regard, Justice Pariente s concurring opinion in C.E.L. v. State (Fla.2009) provides some guidance: Finally, an individual can challenge whether the area where his or her alleged violation occurred was actually within a high-crime area. In Wardlow, the United States Supreme Court held that officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation... [under] a Terry analysis. Applying that logic, the Court labeled the defendant s location on a public street in an area known by the Chicago Police Department for heavy narcotics trafficking as a high -crime area. However, Wardlow does not provide a uniform method by which to distinguish areas of high crime and areas of low or no crime. In this case, the State argued and submitted testimony to establish that the apartment complex where C.E.L. was detained was, in fact, a high-crime area. The detaining officers were patrolling the neighborhood in response to a prior complaint regarding drugs and trespassing. On appeal, C.E.L. did not contest this designation, but Judge Altenbernd expressed concern that the classification lacked objective statistical measurement and was based solely on the subjective testimony of individual law enforcement officers. The Second District addressed this issue again in D.R. v. State, (2DCA 2006). The Second District explained that on cross-examination, the officer provided no details regarding the number of arrests in the neighborhood... [and] his knowledge of the area was unsupported by any facts shared with the court that would suggest that the suspect s unprovoked flight occurred in a high-crime area. Moreover, there was no testimony about the relevant characteristics of the location that would determine whether the circumstances [were] sufficiently suspicious to warrant further investigation. These factors led the Second District to hold that the officer s out-of-date conclusion, unreinforced by specific, contemporary information, was legally insufficient to satisfy the Fourth Amendment. Notably, the D.R. court stated that although arrest statistics or information provided by regular police departmental briefings might be sufficient, [it did] not decide the nature or type of evidence necessary to establish an area as a highcrime area, as that issue [was] not before [the court]. Thus, D.R. s holding was limited to its conclusion that there was no competent evidence to prove this [high-crime area] requirement in this case. State v. Winter 5 th D.C.A. (March 1, 2013) Reasonable Suspicion Based on an anonymous tip the arresting police officer was dispatched to a fight between several males, one of whom was wearing black clothing and carrying a Taser. When the Officer arrived, there were about thirty people milling around and no one was fighting. However, she did not see anyone except J.H. wearing black clothing. The Officer testified at the suppression hearing that J.H. was sweating and attempting to catch his breath and appeared nervous. Because J.H. was wearing clothing that matched the anonymous tip description and appeared to be anxious, she ordered him to come towards her and to place his hands on a car, where she proceeded to pat him down. The Officer testified that she conducted the pat down for officer safety because the dispatch indicated the male had a Taser. The officer did not, however, see any suspicious bulge on J.H. that might indicate a weapon. As the Officer patted J.H. down, she felt a cylindrical object in his pocket. Believing it to be a revolver, she stuck her hand in J.H. s pocket to retrieve the object, then J.H. grabbed her arm, pushed her, and ran. Another officer ultimately stopped and arrested J.H. J.H. was charged with weapons and resisting charges. He filed a mo- Legal Eagle 7

8 tion to suppress arguing that the firearm was seized as a result of an unlawful stop and frisk. The trial court denied his motion. The 3 rd D.C.A. disagreed. Issue: Did the Officer have the required reasonable suspicion to conduct the stop and frisk of J.H.? No. Reasonable Suspicion: In Terry v. Ohio, (S.Ct.1968),the United States Supreme Court announced an exception to the Fourth Amendment s probable cause requirement: temporary seizures and minimally intrusive searches of the person are permissible when a law enforcement officer has an objectively reasonable suspicion that criminal activity may be afoot and that the person may be armed. In Terry, the officer s own observations provide the requisite reasonable suspicion. However, information from a third party may also provide the necessary reasonable suspicion to justify a temporary detention and pat -down search of a subject. In analyzing whether third-party information can provide the requisite reasonable suspicion, courts have looked to the reliability of the informant as well as the reliability of the information provided. This analysis is conducted by evaluating the totality of the circumstances. In Alabama v. White, (S.Ct.1990) the United States Supreme Court stated, Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause... The unverified tip from a known informant might not be reliable enough to establish probable cause, but is nevertheless sufficiently reliable to justify a Terry stop. Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factorsquantity and quality- are considered in the totality of the circumstances - the whole picture, that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable. This more information must be provided by the investigating officer by corroborating the underlying facts in the tip; especially if the tip is categorized as an anonymous tip. The courts have definitively ruled that at the low end of the reliability scale is the anonymous tipster. This individual neither identifies herself nor provides any contact information. Absent some corroboration of the information provided or other indicia of reliability, the anonymous tipster is generally considered too unreliable to provide the reasonable suspicion necessary for a Terry stop. Florida v. J.L.: An anonymous gun tip case out of Florida went to the U.S. Supreme Court, Florida v. J.L. (S.Ct.2000). In J.L., the officers suspicion that J.L. was carrying a weapon arose not from any observations of their own but solely from a call made from an unknown location by an unknown caller. The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant s knowledge or credibility. All the police had to go on was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L. The Supreme Court suppressed the gun. Just because the allegation about the gun turned out to be correct does not suggest that the officers, prior to the frisks, had a reasonable basis for suspecting J.L. of engaging in unlawful conduct: the reasonableness of official suspicion must be measured by what the officers knew before they conducted their search. Court s Ruling: The 3 rd D.C.A. found the facts of the instant case to be similar to J.L. as (Continued on page 3) Legal Eagle 8