November 2013 Texas Law Enforcement Handbook Monthly Update is published monthly. Copyright 2013. P.O. Box 1261, Euless, TX 76039. No claim is made regarding the accuracy of official government works or copyright of same. Educational purposes only. Does not constitute legal advice. No reproduction outside TPCA membership without written consent. US Supreme Court US SUPREME COURT ACKNOWLEDGES THAT LAW REGARDING ENTRY ONTO PROPERTY IS NOT CLEARLY ESTABLISHED FOR PURPOSES OF DENYING AN OFFICER QUALIFIED IMMUNITY Issue presented: eligibility for qualified immunity The petitioner, Officer S, had been denied qualified immunity by the US 9 th Circuit in a section 1983 lawsuit. The officer appealed to the US Supreme Court. The US Supreme Court reversed the decision of the 9 th Circuit. At about 1:00 a.m. the police received a call about an unknown disturbance involving a person with a baseball bat. Officer S was familiar with the neighborhood where the call originated and was aware gang violence was a common occurrence. The police responded in marked squad cars wearing full uniforms. As they approached the area the officers saw two men turn into an apartment complex and a third man cross the street and run towards a residence. Officer S got out of his car and shouted for the man to stop. The man looked directly at Officer S but did not comply. Although S did not see a baseball bat, he still believed the man s conduct to be suspicious. Officer S apparently had no knowledge as to whether the man lived at the residence towards which he was running. In fact, the residence belonged to Ms. Sims. The man went through the front gate on the property. The fence enclosed the front yard of the residence and was made of wood and taller than 6 feet. Officer S believed the man had committed an offense by failing to stop when ordered. Officer S kicked open the gate to pursue the man. Unfortunately, Ms. Sims was standing on the other side of the gate and was struck by the gate injuring her shoulder and cutting her forehead.
Ms. Sims sued Officer S, alleging that he illegally searched her home without a warrant in violation of the Fourth Amendment [and that search caused her injury]. The trial court granted summary judgment to Officer S, finding: (1) the officer s entry was justified by the potentially dangerous situation, by the need to pursue the suspect as he fled, and by Sims lesser expectation of privacy in the curtilage of her home; and (2) even if a constitutional violation had occurred, the officer was entitled to qualified immunity because no clearly established law put him on notice that his conduct was unconstitutional. Sims appealed. The 9 th Circuit reversed. That Court held that: The warrantless entry into Sims yard was unconstitutional because Sims was entitled to the same expectation of privacy in her curtilage as in her home itself, because there was no immediate danger, and because the suspect had committed only the minor offense of disobeying a police officer. The 9 th Circuit went on to hold that Officer S should be denied qualified immunity because the law was clearly established that he was not authorized to make the warrantless entry to arrest for a misdemeanor offense. The Supreme Court accepted the case for review to decide whether or not Officer S was entitled to qualified immunity: The doctrine of qualified immunity protects government officials 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. Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law. We do not require a case directly on point before concluding that the law is clearly established, but existing precedent must have placed the statutory or constitutional question beyond debate. [Internal cites omitted]. The Court established that in order to be denied qualified immunity, the plaintiff must show that the law on entries into yards for misdemeanor arrests was clearly established and that the officer either knowingly violated that law, or was plainly incompetent. The Court continued its analysis: There is no suggestion in this case that Officer S knowingly violated the Constitution; the question is whether, in light of existing precedent existing at the time, he was plainly incompetent in entering Sims yard to pursue the fleeing [suspect] The Ninth Circuit concluded that he was. It did so despite November 2013 2
the fact that federal and state courts nationwide are sharply divided on the question whether an officer with probable cause to arrest a suspect for a misdemeanor may enter a home without a warrant while in hot pursuit of that suspect. **** Notwithstanding this basic disagreement, the Ninth Circuit below denied [the officer] qualified immunity. In its one-paragraph analysis on the hot pursuit point, the panel relied on two cases, one from this Court, Welsh v. Wisconsin, and one from its own, US v. Johnson. Neither case clearly establishes that [the officer] violated Sims Fourth Amendment rights. The Court summarized its decision in the Welsh case: In Welsh, police officers learned from a witness that Edward Welsh had driven his car off the road and then left the scene, presumably because he was drunk. Acting on that tip, the officers went to Welsh s home without a warrant, entered without consent, and arrested him for driving while intoxicated a nonjailable traffic offense under state law Our opinion first noted our precedent holding that hot pursuit of a fleeing felon justifies an officer s warrantless entry But we rejected the suggestion that the hot pursuit exception applied: there was no immediate or continuous pursuit of [Welsh] from the scene of a crime. We went on to conclude that the officers entry violated the Fourth Amendment, finding it important that there [was] probable cause to believe that only a minor offense ha[d] been committed. In those circumstances, we said, application of the exigent circumstances exception in the context of a home entry should rarely be sanctioned. But we did not lay down a categorical rule for all cases involving minor offenses, saying only that a warrant is usually required The Court also discussed the Johnson case, but that analysis is not included here. The Court then summed up its discussion of Welsh in the context of warrantless entries: In concluding - as it must have - that the [the officer] was plainly incompetent the Ninth Circuit below read Welsh far too broadly. First, both of those cases [Welsh November 2013 3
and Johnson] cited Santana [another case on felony hot pursuit] with approval, a case that approved an officer s warrantless entry while in hot pursuit. And though Santana involved a felony suspect, we did not expressly limit our holding based on that fact Second, to repeat, Neither Welsh nor Johnson involved hot pursuit Thus, despite our emphasis in Welsh on the fact that the crime at issue was minor indeed, a mere nonjailable civil offense nothing in the opinion establishes that the seriousness of the crime is equally important in cases of hot pursuit. Third, even in the portion of Welsh cited by the Ninth Circuit below, our opinion is equivocal: We held not that warrantless entry to arrest a misdemeanant is never justified, but only that such entry should be rare. The Supreme Court went on to discuss the confusion in the courts across the country about the issue of warrantless entry to make a misdemeanor arrest. The Court then summed up its discussion as to whether Officer S was plainly incompetent when he entered Sims yard without a warrant: To summarize the law at the time [the officer] made his split-second decision to enter Sims yard: Two opinions of this Court were equivocal on the lawfulness of his entry; two opinions of the State Court of Appeal affirmatively authorized the entry; the most relevant opinion of the Ninth Circuit was readily distinguishable; two Federal District Courts in the Ninth Circuit had granted qualified immunity in the wake of that opinion; and the federal and state courts of last resort around the nation were sharply divided. The Court determined that the law on this issue was not so clearly established to render the officer s decision to enter as one that was plainly incompetent: [S] may have been mistaken in believing his actions were justified, but he was not plainly incompetent. It should also be noted that the Court did not render a decision as to whether the entry itself was constitutional. Stanton v. Sims, NO. 12-1217 (U.S. Supreme Court, 11/4/13) Commentary: The issue of the lawfulness of a warrantless entry to make a misdemeanor arrest generates much discussion. The case discussed above is important. First, the Supreme Court itself acknowledges that the case law on the issue is not clearly November 2013 4
established that courts across the country are divided on the issue. Secondly, the case seems to indicate there is something different if the entry is part of hot pursuit of the misdemeanant. Unfortunately, the Court declined this opportunity to clarify when entries to make misdemeanor arrests violate the Fourth Amendment. It may well be that the more serious the nature of the misdemeanor crime, coupled with the immediate pursuit of the offender, will eventually become the standard for warrantless misdemeanor arrest entries. Court of Criminal Appeals WARRANTLESS ENTRY TO FIRE SCENE WAS CONSTITUTIONAL; STATEMENT FROM SUSPECT WAS NOT THE PRODUCT OF CUSTODIAL INTERROGATION Issue presented: Miranda requirements; warrantless search of fire scene The appellant was convicted of two murders during the same criminal transaction. He was sentenced to death. His case was appealed to the Court of Criminal Appeals. The Court affirmed his conviction. On December 18 th emergency personnel responded to a fire call. Once there the fire was extinguished and the bodies of the three victims were found inside the house [appellant was only tried for two murders]. The victims were stabbed and beaten to death and the fire was set after their deaths. The appellant approached the police at the scene of the fire and asked if everyone inside made it out. The appellant told the police he lived at the house with his pregnant wife, daughter and father-in-law. As the police spoke with him he just sat there with his head in his hands and he did not cry. The police asked him where he had been and he told them he had gone to the store to check prices for Christmas gifts. The police asked the appellant if he would come to the station and give them a statement. He agreed to do so and followed the police to the station in his own vehicle. Once at the station the police noticed what appeared to be blood on his clothing and the appellant agreed to give the police his clothes in exchange for fresh clothing and he also consented to a search of his vehicle. While he changed clothes one officer noted blood on the bottom of his sock and scratches on his back. Appellant left the police station, drove to work, collected his check and then disappeared. Two days later he was located in San Diego California, crossing the border from Mexico in the U.S. A computer check indicated he was armed and dangerous and should be detained. He was taken to the San Diego jail. Two officers from Texas went to San Diego and interviewed him. He confessed to the crimes. Appellant argued that the first statement he gave at the police station shortly after the fire should have been suppressed, since it was given without November 2013 5
benefit of Miranda, and, argued the appellant, he was in custody at the time. The Court stated the basic components of the Miranda issue: The warnings required by Miranda and Article 38.22 are intended to safeguard a person s privilege against selfincrimination during custodial interrogation This Court has found four general situations that may constitute custody for purposes of Miranda and Article 38.22: (1) The suspect is physically deprived of his freedom of action in any significant way; (2) A law enforcement officer tells the suspect he is not free to leave; (3) Law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) There is probable cause to arrest the suspect, and law enforcement officers do not tell the suspect he is free to leave. In this case the Court noted the following: the appellant voluntarily agreed to leave the scene and go to the police department; the police told the appellant he could drive himself there in his own car; the police only considered him a witness at this point; although the officers suspicions were aroused during the interview, the appellant was specifically told he was not under arrest; the appellant was allowed to leave the police station after talking to them; while at the police station the appellant took multiple breaks to use the bathroom and smoke cigarettes; the appellant was given aspirin when he complained of a headache; when the appellant delivered his clothes to the police and one officer read him his Miranda warning [after some time] he was told he was not under arrest. During his time at the station the appellant was cooperative and never voiced any objections about writing his statement or providing his clothes for testing. The appellant argued that he was subjected to repeated coercive efforts of the officers to persuade and induce [him] into making a statement. The Court noted that the officers were suspicious of appellant s answers and tried to persuade him to tell the truth, but we [the Court] are unable to conclude that a reasonable person in these circumstances would believe he was not free to leave. Accordingly, the Court ruled the interview in Texas was proper because the appellant was not in custody at the time. The appellant also argued that his statement in Texas was the fruit of an illegal search, i.e. when the fire and police personnel searched his home that had been damaged in the fire without a warrant. The Court stated: November 2013 6
[A] burning building creates an exigency that justifies a warrantless entry by fire officials to fight the blaze Once in the building, officials need no warrant to remain for a reasonable time to investigate the cause of the blaze after it has been extinguished. The aftermath of a fire often presents exigencies that will not tolerate the delay necessary to obtain a warrant. [Internal cites omitted]. Hummel v. State, NO. AP-76,956 (Tex. Crim. App. 11/20/13) (not designated for publication) Having established that a burning building creates an exigency that excuses a warrant, the Court stated: We disagree with appellant s contention that his statements are the fruit of an illegal search. The record reflects that: (1) firefighters entered the residence to fight the blaze; (2) hazardous conditions persisted when [emergency personnel] entered to investigate the cause and origin of the fire; (3) [fire personnel] believed that immediate investigation was necessary to preserve evidence from further destruction; and (4) firefighters continued to extinguish hot spots throughout the day and evening. The warrantless entries at issue were justified under these circumstances. November 2013 7