Police Ride Alongs. In This Issue: Photograph Lineup. Pedestrian Infraction. Marijuana Odor on a Person

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1 A Newsletter for the Criminal Justice Community Police Ride Alongs In This Issue: Photograph Lineup Pedestrian Infraction Marijuana Odor on a Person Legal Eagle Published by: Legal Eagle Services West Palm Beach, FL B. Krischer, Editor Deputy federal marshals and local sheriff s deputies went to Wilson s home to arrest his son pursuant to a warrant. They invited a newspaper reporter and a photographer to accompany them. The warrant made no mention of such a media ridealong. The officers early morning entry into the home prompted a confrontation with Wilson, and a protective sweep revealed that the son was not in the house. The reporters observed and photographed the incident but were not involved in the execution of the warrant. Wilson sued the officers in their personal capacities for money damages arguing that the officers actions in bringing the media to observe and record the attempted execution of the arrest warrant violated his Fourth Amendment rights. The District Court denied the officers qualified immunity. Issue: Did the officers actions in permitting the reporter and photographer to enter Wilson s home while executing an arrest warrant violate Wilson s 4 th Amendment rights? Yes. Did the officers have fair warning at the time of the entry that their actions violated Wilson s constitutional rights? No. Qualified Immunity: Government officials (deputy sheriffs) performing discretionary functions generally are granted a qualified immunity and are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. What this means in practice is that whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken. Unless a government agent s act is so obviously wrong, in the light of pre-existing law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing, the government actor has immunity from suit. Entry into a Dwelling: In Payton v. New York (1980) the U.S. Supreme Court stated that it was a violation of the Fourth Amendment for an officer to enter Visit us at our new web site: LegalEagleServices.net Legal Eagle 1

2 a dwelling to effect a routine felony arrest without a warrant, exigent circumstances, or consent. With regard to the officers entry into Wilson s home the U.S. Supreme Court said, Here, of course, the officers had such a warrant, and they were undoubtedly entitled to enter the Wilson home in order to execute the arrest warrant for Dominic Wilson. But it does not necessarily follow that they were entitled to bring a newspaper reporter and a photographer with them. The Supreme Court went on to set out the rule of law in these cases, We hold that it is a violation of the Fourth Amendment for police to bring members of the media or other third parties into a home during the execution of a warrant when the presence of the third parties in the home was not in aid of the execution of the warrant. In-other-words, if the warrant is for turtle eggs a LEO can bring an expert along to identify and distinguish the turtle eggs from chicken eggs. That person would be aiding the officer in the execution of the warrant. But bringing members of the press or media into a home does not aid the warrant execution and as such violates the homeowner s 4 th Amendment rights. Fair Warning: able for a police officer in April 1992 to have believed that bringing media observers along during the execution of an arrest warrant (even in a home) was lawful. First, the constitutional question presented by this case is b y no means open and shut. T he Fo urth Amendment protects the rights of homeowners from entry without a warrant, but there was a warrant here. The question is whether the invitation to the media exceeded the scope of the search authorized by the warrant. Accurate media coverage of police activities serves an important public purpose, and it is not obvious from the general principles of the Fourth Amendment that the conduct of the officers in this case violated the Amendment. Second, although media ridealongs of one sort or another had apparently become a common police practice, in 1992 there were no judicial opinions holding that this practice became unlawful when it entered a home. Hence, at the time of the entry the officers did not have fair warning that their actions were unlawful. Accordingly, they were entitled to qualified immunity. Court s Ruling: Interestingly, the reason the Wilson case was before the U.S. Supreme Court was because there was a conflict in the rulings between the various federal appeals courts on this question. The Supreme Court was asked to be the tie breaker. This split in the law led the Court to overrule the trial court and grant the officers qualified immunity from suit. The Court said, Given such Once it was established that the entry team had violated Wilson s constitutional rights the next inquiry was whether they were aware or should have been aware that their actions were unlawful. In this regard the U.S. Supreme Court said no. We hold that it was not unreasonan undeveloped state of the law, the officers in this case cannot have been expected to predict the future course of constitutional law. Between the time of the events of this case and today s decision, a split among the Federal Circuits in fact developed on the question whether media ride-alongs that enter homes subject the police to money damages. If judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy. Lessons Learned: As of 1999, the U.S. Supreme Court s ruling in Wilson v. Layne confirmed that police ride-alongs that involve bringing press, media ( Cops videographer), or photographers into a home violates the citizen s 4 th Amendment rights. Thus, now that Wilson has been decided officers have fair warning that those actions are unlawful, and as such that behavior is actionable under a civil rights law suit. The Wilson cases will now effectively deny a LEO qualified immunity for his actions in violation of the claimant s 4th Amendment constitutional rights. Wilson v. Layne U.S. Supreme Court (1999) Legal Eagle 2

3 SUGGESTED PROCEDURE FOR PHOTOGRAPHIC LINEUP CREATING THE PHOTO LINEUP: A. A photo lineup or array should consist of a minimum of six photographs. Include only one photo of the suspect and a minimum of five filler photos. If there are multiple suspects in a case, only one suspect should be included in each lineup. If there are multiple suspects in a case, each lineup shall contain different filler photos. If there are multiple eyewitnesses, the suspect s photo shall be placed in a different position in the array for each witness. B. All photographs used should be of individuals who are reasonably similar in age, height, weight, and general appearance and are of the same sex and race, in accordance with the witness s description of the suspect. C. All photographs used should have the same background and be of the same size and basic composition. 1. No particular photo should stand out in the array. 2. Do not mix color and black and white photos. 3. No identifying information about the subject should appear on any photo. D. Once the instructions have been read aloud, and the witness begins his or her review, the person administering the lineup should either leave the room or stand behind the witness as the array is being viewed and take all reasonable precautions to avoid giving any unintentional cues to the witness. E. In the event of multiple eyewitnesses, show the photo array to only one witness at a time. Separate witnesses so they will not be aware of the responses of other witnesses. F. Once the witness has finished viewing the photo array and the folder is handed back, the person administering the lineup should ask if there was a photo of the person observed by the witness. 1. If an identification is made, confirm that the witness has initialed and dated the selected photo. If the witness refuses to sign the array, the person administering the lineup shall note the refusal and sign the array accordingly. G. The person administering the lineup should not comment on selections or the outcome of the lineup in any way. H. Following all photo lineups, and whether or not a positive identification is made, the folder (with the instructions attached) and the photo array presented to the witness, should be submitted to the Evidence Unit to be maintained for the criminal case. Legal Eagle 3

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5 Recent Case Law Jaywalking Pat Down The arresting officer testified that when he spotted the defendant crossing the street in a diagonal direction he activated his emergency lights, stepped out of his car, and made contact with the defendant. The officer stated that his intention was to stop the defendant for jaywalking; however, when the defendant raised his arms up, the officer immediately observed a bulge in the defendant s waistband. The officer testified that the bulge led him to believe that the defendant may have been armed and, therefore, he patted the defendant down, and determined that the bulge was the grip of a pistol. The officer removed a Colt revolver from the defendant s waistband. The defendant filed a motion to suppress arguing that he had not violated the jaywalking statute, and that as such the stop was invalid, making the firearm recovered fruit of the poisonous tree. The 5 th D.C.A. did not agree. Issue: Did the pedestrian infraction provide the officer with a lawful basis for a stop? Yes. Did the officer have a legal basis to support the weapons pat-down? Yes. Pedestrian Regulation: Florida Statute, , Pedestrians; traffic regulations, provides in part: A pedestrian shall obey the instructions of any official traffic control device specifically applicable to the pedestrian unless otherwise directed by a police officer. (11) Between adjacent intersections at which traffic control signals are in operation, pedestrians shall not cross at any place except in a marked crosswalk. (12) No pedestrian shall, except in a marked crosswalk, cross a roadway at any other place than by a route at right angles to the curb or by the shortest route to the opposite curb. (19) A violation of this section is a non-criminal traffic infraction, punishable pursuant to chapter 318 as a pedestrian violation. The 5 th D.C.A. found that the officer lawfully stopped Nichols for jaywalking. The trial court erred in concluding that the arresting officer lacked probable cause to stop the defendant for jaywalking. The officer witnessed the defendant crossing the street in a diagonal direction. Section (12) of the Florida Statutes states that, when there is no available cross-walk, an individual must cross the street by a route at right angles to the curb or the shortest distance possible. A diagonal route across the street is not shorter than a direct route at right angles to the curb. Thus, the arresting officer had probable cause to stop the defendant to issue him a citation because the officer could have reasonably concluded that the defendant was jaywalking. Pat-down: Section (5) authorizes an officer to conduct a pat-down when he has probable cause to believe the individual poses a threat to the officer or others. The Florida Supreme Court in State v. Webb, (1981), explained that probable cause for the purpose of a pat-down is more akin to reasonable suspicion: Since Terry v. Ohio, (1968), decided over a decade ago, the test for the limited intrusion of a stop and frisk has been reasonableness rather than probable cause. A valid stop does not necessarily mean that there can be a valid frisk. Under the Terry exception, a law enforcement officer, for his own protection or the safety of others, may conduct a pat down to find weapons that he reasonably believes or suspects are then in possession of the person whom he has stopped. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. In order to determine whether an officer had a reasonable suspicion, the courts will consider the totality of the circumstances as viewed by the police officer s experience, knowledge, and training. These factors Legal Eagle 5

6 need to be set out in the offense report. Court s Ruling: The 5 th D.C.A. found the officer s actions well within the law and overturned the trial court s suppression order. The trial court erred in concluding that the officer did not have probable cause to conduct a protective pat-down search of the defendant. An officer is permitted to conduct a protective pat-down search of a suspect when the officer has probable cause to believe that the individual is armed with a dangerous weapon and poses a threat to the officer or other persons. Probable cause in the protective search context is more akin to a reasonable suspicion standard. State v. Webb, (Fla.1981). Whether an officer has a reasonable suspicion that a suspect is armed is an objective standard. Contrary to the trial court s conclusion, the arresting officer was justified in conducting a protective pat-down in this case because the stop of the defendant was valid and the officer s observation of a bulge in the defendant s waistband created an objectively reasonable suspicion that the defendant was armed with a dangerous weapon and posed a threat to the officer s safety. Reversed and remanded. Lessons Learned: An officer s rights and obligations prior to engaging in a pat-down are clearly set out by the 4 th D.C.A. in Dobson v. State, (1999). In Florida, the requisite justification for an officer to conduct a pat down of a suspect is a reasonable suspicion that the suspect is armed with a dangerous weapon When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. The sole justification of the stop and frisk search... is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer. F.S (5) provides that when the pat-down discloses evidence of a crime the object may be seized. However, the officer must be prepared to explain, based upon his prior experience, knowledge, and training, how the identity and contraband nature of the object he touched was immediately apparent to him. State v. Nichols 5 th D.C.A. (Dec. 30, 2010) Odor of Marijuana on a Person Deon Hill committed a pedestrian violation in an officer s presence, and the officer therefore had probable cause to stop him for the noncriminal traffic infraction. Because he had probable cause to make a pedestrian traffic stop, the officer also had the right to approach Hill and detain him for the time necessary to write the infraction citation. When the officer was within three to five feet of Hill, he detected the strong odor of marijuana emanating directly from his person. Hill walked away from the officer and was on his front porch when arrested. The officer then searched Hill for marijuana, which he discovered. Hill was then arrested for Possession of Cannabis. The defendant filed a motion to suppress arguing that the odor of marijuana alone was insufficient to sustain a warrantless search of his person. And, that the officer violated his Fourth Amendment rights by detaining him on his front porch without a warrant. The 5th D.C.A. disagreed. Issue: Was a warrantless search of Hill on the front porch of his domicile reasonable based upon the mere odor of Marijuana? Yes. Privacy and Dwelling: The trial judge suppressed the drugs recovered by the officer because the defendant was standing on the curtilage of his home. The 5th D.C.A. disagreed because the area where he was standing, his front porch, was not protected by the Fourth Amendment. The Fourth Amendment protects areas where a person has a constitutionally protected reason- Legal Eagle 6

7 able expectation of privacy. It does not, however, protect areas of the home that are open and exposed to public view. One does not harbor an expectation of privacy on a front porch where salesmen or visitors may appear at any time. Accordingly, an individual has no expectation of privacy on his front porch, which is unenclosed and open to public view. Odor of Marijuana: Florida courts have routinely held that the odor of marijuana emanating from a vehicle provides the officer with probable cause to arrest and thereby search the occupant as well as his vehicle. In fact, because the probable cause is directed at the vehicle not only may the passenger compartment be searched, but the search may extend to the vehicle s trunk as well. The Florida Supreme Court said in State v. Betz (2002), We conclude that the police officer here had probable cause to search both the passenger compartment and the trunk of Betz s automobile. First, of course, Officer Harrold smelled a very strong odor of marijuana coming directly out of the respondent s car window. As the odor of previously burnt marijuana certainly warranted a belief that an offense had been committed, this unquestionably provided the police officers on the scene probable cause to search the passenger compartment of the respondent s vehicle. To a trained and experienced police officer, the smell of cannabis emanating from a person or a vehicle gives the police officer probable cause to search the person or the vehicle. In State v. T.T. the 5th D.C.A. was confronted with an officer who detected the odor of marijuana coming off the person of a juvenile, T.T. The 5th D.C.A. upheld the warrantless search, The sense of smell is perhaps not as keen in humankind as in other animals, but some odors such as burned cannabis are very strong and very distinctive. A person who is trained to recognize the odor of marijuana and who is familiar with it and can recognize it has probable cause, based on the smell alone, to search a person or a vehicle for contraband. The 5th D.C.A. s ruling in T.T. went on to say, The mere possession of marijuana is illegal. When a police officer who knows the smell of burning marijuana detects that odor emanating from a vehicle, or from a person who has recently exited a vehicle, he has probable cause to believe a crime has been committed and that such person has committed it. This probable cause authorizes the arrest of such person and a warrantless search, either before or after the arrest, of the passenger compartment of the vehicle, and closed containers therein, for evidence of the crime. Court s Ruling: The 5th D.C.A. had no trouble upholding the search in State v. Hill, The officer had a lawful reason for approaching Hill. When he smelled the strong odor of marijuana wafting from Hill, the officer had probable cause and sufficient grounds for a warrantless search. The warrantless search in this case was reasonable under the Fourth Amendment and the totality of the circumstances. Therefore, the order granting Hill s motion to suppress is reversed and the cause remanded for further proceedings. Lessons Learned: This case is based upon the notion that a trained and experienced LEO knows the odor of marijuana when he smells it. This is no different from plain view or plain feel. The arrest is dependent upon the officer s prior experience, knowledge, and training. It is clear that the 5th D.C.A. s ruling was based upon the officer s ability to recognize the odor of marijuana emanating from Hill. Accordingly, it is imperative that an officer s report and testimony include the prior experience, knowledge, and training that support such a finding. Additionally, it is important to remember that the U.S. Supreme Court ruled in Knowles v. Iowa (1999) that there is no right to search incident to ticket, only search incident to arrest. Thus, the fact that the officer in State v. Hill issued a citation for a pedestrian infraction did not in and of itself authorize the search of Hill. It was only the officer s testimony that he detected the odor of marijuana on Hill that supported the search. State v. Hill 5 th D.C.A. (Jan. 14, 2011) Legal Eagle 7