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Detentions
Exigency & Emergency
Use of Force
Search & Seizure
DUII
Traffic Stops
Assault
Controlled Substances
Civil Rights

Detentions

Bailey v. U.S. - Limits of handcuffing during detention: Bailey v. United States, 568 U.S. 186 (2013): The permissible scope of a Terry stop exceeded by handcuffing two suspects because officers faced no present physical threat: They had pat-down each man confirming neither was armed, & the men were outside of the vehicle & no threat they could obtain any weapon from the car

Facts:
On July 28, 2005, an informant told Officer Richard Sneider of the Suffolk County Police Department that he had purchased six grams of crack cocaine at 103 Lake Drive, Wyandanch, New York, from an individual named "Polo." Officer Sneider obtained a warrant to search the basement apartment at that address; the warrant provided that the apartment was occupied by a heavy set black male with short hair, known as "Polo." That evening during surveillance, officers observed two men -later identified as Chunon L. Bailey and Bryant Middleton-exiting the gate that led to the basement apartment at 103 Lake Drive. The officers followed Bailey and Middleton as they left the premises in a black Lexus, and pulled the Lexus over about one mile from the apartment.

The officers patted down Bailey and Middleton, finding keys in Bailey's front left pocket. They placed both men in handcuffs and informed them that they were being detained, not arrested. Bailey insisted that he did not live in the basement apartment at 103 Lake Drive, but his driver's license address in Bay Shore was consistent with the informant's description of Polo. The police searched the apartment while Bailey and Middleton were in detention, finding a gun and drugs in plain view. The police arrested Bailey, and seized his house keys and car key incident to his arrest; later, an officer discovered that one of the house keys opened the door to the basement apartment.The trial court rejected that motion, holding that the detention was justified under Michigan v. Summers. The defendant was convicted and, on appeal, the United States Court of Appeals for the Second Circuit agreed.

The U.S. Supreme Court reversed on appeal.
Florida v. Bostick - The standard for determining a "seizure" of a person: Florida v. Bostick, 501 US 429 (1991): The standard for determining a "seizure" is not if a person feels free to leave, but whether the person feels free to decline the requests of the officer

Facts:
In Broward County, Florida, Sheriff's Department officers regularly boarded buses during stops to ask passenger for permission to search their luggage. Terrance Bostick, a passenger, was questioned by two officers who sought permission to search his belongings and advised him of his right to refuse. After obtaining Bostick's permission, the officers searched his bags, found cocaine, and arrested him on drug trafficking charges. Bostick filed a motion to suppress the evidence on the ground that it was illegally obtained, but the trial court denied the motion. Following an affirmance and certification from the Florida Court of Appeals, the State Supreme Court held that the bus searches were per se unconstitutional because police did not afford passengers the opportunity to "leave the bus" in order to avoid questioning. Florida appealed and the Supreme Court granted certiorari

The Court overturned the Florida Supreme Court and held that when deciding if a search request is overly coercive, within a confined space such as a bus, one must not look at whether a party felt "free to leave," but whether a party felt free to decline or terminate the search encounter. The Court held that in the absence of intimidation or harassment, Bostick could have refused the search request. Moreover, the fact that he knew the search would produce contraband had no bearing on whether his consent was voluntarily obtained. The test of whether a "reasonable person" felt free to decline or terminate a search presupposes his or her innocence
Florida v. JL - Anonymous tips not justification for weapons search: Florida v. J.L., 529 US 266 (2000): An anonymous tip that a subject is carrying a gun is, without more evidence, insufficient to justify a police officer’s stop & frisk of that subject

Facts:
On October 13, 1995 Miami-Dade police received an anonymous tip that a black male wearing a plaid shirt was standing near a bus stop carrying a gun. The two officers who responded found three black males, one of which, J.L., a 15 -year-old, was wearing a plaid shirt. After frisking him, the officers did find a firearm. J.L. was charged with carrying a concealed weapon without a license. At trial, he moved to suppress the gun as evidence, arguing that the frisking performed by the officers was illegal under the Fourth Amendment. The trial court granted the motion, but was reversed by the immediate appellate court. The Florida Supreme Court overruled the appellate court and suppressed the evidence

The U.S. Supreme Court affirmed the Florida Supreme Court's decision stating that an anonymous tip did not meet the minimum requirements to perform a warrantless search. An anonymous tip must posses a moderate level of reliability, including "predictive information" that offers police a "means to test the informant's knowledge or credibility." An accurate description of a person without a reliable assertion of illegality or description of the crime in question, as was the anonymous tip in this case, does not meet this standard. "All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believe he had inside information."
Illinois v. Wardlow - Unprovoked flight of a person & reasonable suspicion: Illinois v. Wardlow, 528 US 119 (2000) Nervous, evasive behavior (flight being the consummate act of evasion) and location in a high crime area are relevant factors in determining the reasonable suspicion necessary for a Terry stop under the 4th Amendment

Facts:
While holding an opaque bag in an area known for heavy narcotics trafficking, the defendant flees on seeing police officers patrolling, and two officers catch up to him and conduct a pat-down weapons search finding a .38 caliber handgun on his person. Trial court denied the defendant’s motion to suppress, but the appellate court reversed. The Illinois Supreme Court upheld the lower appellate court’s result stating that the combination of sudden flight and presence in a high crime area did not reach the status of reasonable suspicion necessary to justify a Terry stop

The U.S. Supreme Court found that nervous, evasive behavior was a pertinent factor in determining reasonable suspicion for a Terry stop, and that headlong flight was the consummate act of evasion. The Court found that the determination of reasonable suspicion had to be based on common sense judgments and inferences about human behavior, and that officers were justified in suspecting that defendant was involved in criminal activity based on his presence in an area of heavy narcotics trafficking and his unprovoked flight upon noticing the police. The Court concluded that defendant's presence in an area of heavy narcotics trafficking and his unprovoked flight upon noticing police created a reasonable suspicion justifying a Terry stop
Michigan v. Long - Searching interior of vehicle for weapons: Michigan v. Long, 463 U.S. 1032 (1983): The search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons

Facts:
David Long was convicted for possession of marijuana found by Michigan police in the passenger compartment and trunk of his car. The police searched the passenger compartment because they suspected Long's vehicle contained weapons potentially dangerous to the officers. After a state appellate court affirmed the conviction, the Michigan Supreme Court reversed. The Michigan Supreme Court held that the search violated the Fourth Amendment and the Michigan Constitution.

The Supreme Court not only ruled that Michigan misapplied Terry v. Ohio and the 4th Amendment but also ruled that Long had insufficient adequate and independent state ground
Minnesota v. Dickerson - Contraband discovered during a pat down: Minnesota v. Dickerson, 508 U.S. 366 (1993): A police officer may seize nonthreatening contraband detected during a protective pat-down search of a suspect whom they have briefly stopped based on their reasonable conclusion that criminal activity may be afoot with respect to the suspect, & where the officer is justified in believing that the suspect is armed & presently dangerous to the officer or to others nearby, so long as the officer's search is strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others

Facts:
On November 9, 1989, while exiting an apartment building with a history of cocaine trafficking, Timothy Dickerson spotted police officers and turned to walk in the opposite direction. In response, the officers commanded Dickerson to stop and proceeded to frisk him. An officer discovered a lump in Dickerson's jacket pocket, and, upon further tactile investigation, formed the belief that it was cocaine. The officer reached into Dickerson's pocket and confirmed that the lump was in fact a small bag of cocaine. Consequently, Dickerson was charged with possession of a controlled substance. He requested that the cocaine be excluded from evidence, but the trial court denied his request and he was found guilty. Minnesota Court of Appeals reversed, and the State Supreme Court affirmed the appellate court's decision

The U.S. Supreme Court recalled that a police officer may seize contraband when it is in plain sight, and "its incriminating character is immediately apparent". It held that instances in which an officer uses the sense of sight to discover illegal goods are analogous to those involving the sense of touch.

The Court also reasoned that the tactile detection of contraband during a lawful pat-down search does not constitute any further invasion of privacy, therefore warrantless seizure was permissible. The Court also concluded that the police officer frisking Dickerson stepped outside the boundaries outlined in Terry v. Ohio which requires a protective pat-down search to involve only what is necessary for the detection of weapons. In fact the officer was already aware that Dickerson's jacket pocket did not contain a weapon, when he detected the cocaine through further tactile investigation
State vs Madden - Detention converting to an unlawful arrest: State v. Madden 315 Or. App. 787 (Or. Ct. App. 2021) Keeping someone handcuffed after an officer determines they are not an imminent threat results in an unlawful arrest

Facts:
In January 2013, detectives with the Springfield Police Department obtained a warrant to search the residence of Sheehan, a 'known user and dealer of methamphetamine,' for evidence of delivery of controlled substances. The search warrant authorised the police to search Sheehan's person and residence. It did not refer to any other person or location.

Late in the morning of January 30, 2013, the detectives and other members of the Springfield Police Department - eight in total - parked their cars down the street from Sheehan's house and three proceeded to the house on foot, intending to execute the warrant. As they approached the house, they saw two men - defendant and Lando - sitting in a car parked in the driveway. Three of the officers - Detectives Potter, Hargis, and Espinosa-immediately recognised Lando, who was sitting in the front passenger's seat with the door slightly ajar, as a person whom they had arrested on multiple occasions for drug crimes. None of the officers recognised the man sitting in the driver's seat, i.e., defendant.

Detectives Potter and Hargis quickly moved toward the car to 'contact' defendant and Lando. Before Potter reached the car, he saw defendant reach back and shove a bag down between the seats. Potter removed defendant from the car, directed him to keep his hands raised, and handcuffed him, while Hargis did the same with Lando. Both men were subjected to pat-down searches, during which Hargis pulled two baggies, one of which appeared to contain methamphetamine, from Lando's pocket. All of this occurred very quickly, and defendant and Lando were taken into the house as the officers entered it to execute the search warrant a few minutes later.

After securing the house, most of the other officers became engaged in the search, while Potter assembled defendant, Lando, and the house's two occupants in the living room. Potter administered Miranda warnings to them and proceeded to take them, one at a time, into a separate room to question them. Defendant was the first person who was questioned in that manner: Potter had separated him from the others and commenced to question him within five to ten minutes of entering the house.

During that initial questioning, Potter asked defendant about the car and whether it contained anything that was illegal. Defendant responded that the car belonged to a friend, and eventually acknowledged that it contained methamphetamine and a gun. Potter asked if defendant would consent to a search of the car, but defendant seemed reluctant. Potter then told defendant to 'think about it' while he questioned Lando and the others.

Later, when Potter questioned defendant a second time, defendant agreed to the search and signed a form that stated that he was consenting to the search freely and voluntarily and that he understood that he could refuse to give consent. In the search of the car that followed, the police found a large amount of methamphetamine, a handgun, and other incriminating items inside the bag that Potter had seen defendant push between the seats. Defendant was charged with unlawful possession and delivery of methamphetamine and, based on his status as a felon, unlawful possession of a firearm.

On review, the Supreme Court agreed officer safety concerns justified some of the officers' actions, but not all. Specifically, the court concluded that directing defendant to exit the vehicle, patting him down, handcuffing him and bringing him into the residence were all reasonable safety precautions to minimise the risk in entering and securing the house. However, there was no reasonable officer safety justification for continuing to detain him, in handcuffs, Mirandizing him, repeatedly transporting him alone into another room, and repeatedly questioning him" once the house was secured. Because that conduct was not justified by the officer safety doctrine, the court remanded the case to the trial court to "reach the reasonable suspicion argument it did not address."

On remand, the state argued that Potter and the officers' detention of defendant after securing the house was a lawful stop justified by reasonable suspicion. The state argued that defendant's presence at a high-traffic, known drug house, his association with a known drug dealer, his California license plates, and his attempt to hide his backpack were all facts that supported Potter's reasonable suspicion that defendant was engaged in criminal activity.

Defendant contested the state's reasonable suspicion theory. In addition, defendant responded that the seizure was not a stop, but an arrest. And, defendant argued, that arrest was not supported by probable cause based on the circumstances known to the officers.The trial court rejected defendant's arguments. It decided that defendant was stopped, not arrested, and that the stop was justified by reasonable suspicion. After a stipulated-facts trial and conviction, defendant appeals for the second time, assigning error to the trial court's denial of his motion to suppress

The Court of Appeals summarised as follows:

Generally speaking, arrests and stops differ in the scope, duration, and degree of the restraint. During stops, officers may detain suspects for a reasonable time to investigate a crime. Officers may also use the degree of force reasonably necessary to make the stop and ensure the safety of the officer and others present. However, the duration of the detention or intensity of the officer's actions can convert a stop into an arrest. A restraint that goes beyond the scope of a stop will result in an illegal arrest, if it is not based on probable cause. Handcuffing a suspect is generally, though not always, a restraint that exceeds the scope of a stop. An officer confronted with safety concerns may handcuff a person without converting the stop into an arrest, but the stop is converted into an arrest if the officer continues to use force to restrain the person after the officer's safety concerns have dissipated.

In this case defendant contends that, under the totality of the circumstances, defendant was arrested, even if the handcuffs were removed at the outset of the first interview as the state insists. We agree. The circumstances were sufficiently coercive that defendant's detention rose to the level of an arrest. Accepting the defendant's handcuffs were removed at the beginning of the first interview, defendant was restrained in handcuffs for at least several minutes after officer safety concerns dissipated. That physical restraint weighs in favour of the conclusion that defendant was arrested when considered with other circumstances here, even if it was not unduly long.

While handcuffed, officers Mirandized defendant and the others and read the search warrant to them. Eight officers were present in the house, searching for evidence of drug crimes. Potter then separated defendant from the others and took him to the interview room, where Potter questioned him about his relationship to the homeowner, his reason for being in the driveway, and whether he had drugs and weapons in his car. A reasonable person would understand from that series of events that he was at a minimum not free to go and was enmeshed in the execution of the warrant. Those circumstances, in combination with the actual restraint of the handcuffs, affected the scope and intensity of the investigation such that it became an arrest.

Because defendant was arrested, the state bore the burden of proving that probable cause existed to justify the arrest The state contends that the following circumstances, considered in combination, support a determination that Potter had probable cause to believe defendant "had engaged in illegal drug activity."
Defendant was sitting in a car that was parked in a driveway of a house known for frequent drug activity and was the subject of a targeted investigation. Potter was aware that drug sales occurred inside and outside of the house.
Potter knew from previous interactions that defendant's passenger Lando was a drug dealer and user and Potter found methamphetamine in Lando's pocket.
Potter saw defendant shoving his backpack between the seats, as he approached, which Potter viewed as an attempt to conceal the backpack from the police.
FPotter had significant training and experience with drug transactions and had witnessed over 100 drug sales in cars.
We disagree with the state. The facts known to Potter, viewed individually or collectively, were not sufficient to establish a reasonable basis to believe that, more likely than not, defendant committed a drug crime.

Potter's only observation which related specifically to defendant's behaviour, was the defendant's act of shoving his backpack between the seats. Even assuming defendant saw Potter approach the car, that observation, without more, would not support an objectively reasonable inference that defendant had engaged in drug activity. Because "[a] person might wish to hide any number of personal effects from law enforcement officers" for innocent reasons, "a person's desire to keep personal items private does not, by itself, indicate that those items are contraband." State v. Kelly, 274 Or.App. 363, 374, 360 P.3d 691 (2015).

Apart from his observation of the backpack, the facts supporting Potter's belief that defendant committed a crime were not specific to defendant and related instead to defendant's proximity to drug use by others. Thus, although one potential explanation for defendant's presence at the house and association with Lando is that defendant had, or was about to buy or sell drugs, the facts known to Potter did not support a conclusion that that criminal explanation was more likely than other noncriminal explanations. Because the totality of the circumstances here fail to demonstrate a probability that defendant was engaged in illegal drug activity, we conclude that probable cause did not exist to arrest defendant.

In sum, we conclude that defendant was unlawfully arrested when he was detained after officer safety concerns dissipated. Further, probable cause did not exist to justify the arrest.
Terry v. Ohio - Pat down for weapons during detention: Terry v. Ohio, 392 U.S. 1 (1968): Police may detain a subject based on a reasonable suspicion stop & briefly detain the person, if based upon the officer’s training & experience, there’s reason to believe the individual is engaging in criminal activity
An officer must identify and articulate two separate reasonable suspicions in order to stop & search a person for weapons:
The reasonable suspicion (detention) standard to support the intrusion (evidentiary standard) AND
Suspicion of the subject's armed & dangerous status i.e. articulable facts that the subject may be armed, AND search is for weapons only AND limited to the outside of the suspect's clothing. NOT a search for contraband. Minnesota v Dickerson
Facts:
Terry and two other men were observed by a plain clothes policeman in what the officer believed to be "casing a job, a stick-up." The officer stopped and frisked the three men, and found weapons on two of them. Terry was convicted of carrying a concealed weapon and sentenced to three years in jail

The U.S. Supreme Court held that the search undertaken by the officer was reasonable under the Fourth Amendment and that the weapons seized could be introduced into evidence against Terry. Attempting to focus narrowly on the facts of this particular case, the Court found that the officer acted on more than a "hunch" and that "a reasonably prudent man would have been warranted in believing [Terry] was armed and thus presented a threat to the officer's safety while he was investigating his suspicious behavior." The Court found that the searches undertaken were limited in scope and designed to protect the officer's safety incident to the investigation
U.S. v. Bautista - Handcuffing during detention: U.S. v. Bautista 684 F.2d 1286 (9th Cir. 1982): Police may use handcuffs during a detention if they reasonably believe the person(s) detained poses a present physical threat, & that handcuffing is the least intrusive means to protect against that threat

Facts:
On the afternoon of March 5, 1981, three men robbed the Woodland Hills, California, branch of Lloyds Bank. More than one thousand dollars was taken, including several bait bills with prerecorded serial numbers. Immediately following the robbery, a police report broadcast to units patrolling in the vicinity of the robbery described the bank robbers as being armed and of Iranian or Mexican descent. A follow-up broadcast further reported that the suspected getaway car had been sighted parked on Queen Florence Lane, a side street in an affluent residential neighborhood approximately one-half mile from the bank.

Los Angeles Police Officers John Gaspar and Richard Powers heard the broadcasts on their patrol car radio. Based on their familiarity with the general area, they concluded that the suspects might flee from the suspected getaway car by proceeding down a small hill to Wells Drive, an east-west through street leading out of the residential area. The officers decided to drive along this possible escape route toward the getaway car. Approximately 15 minutes after the first robbery report, the officers saw Bautista and Martinez walking along Wells Drive. At this point, Bautista and Martinez were one-half mile from the bank and approximately three and one-half blocks down the hill from the suspected getaway car. Bautista and Martinez matched the description of the robbers as being of Mexican or Iranian descent. The policemen also noted that Bautista and Martinez were shabbily dressed in short sleeve shirts and appeared relatively dry, although it had been raining throughout the day and was raining at the time. The officers decided to stop them for questioning.

As the officers exited their patrol car, Bautista approached and volunteered that he had just gone to a nearby house and had asked the woman who answered the door to call a cab. Officer Powers frisked Bautista and Martinez for weapons and found none. Both were then handcuffed, and Officer Powers proceeded to the house to check Bautista's story. During the suppression hearing, Officer Powers explained the use of the handcuffs:

At that time a robbery of the bank had been committed and I believed that they were possibly the suspects and also because I observed tracks on their arms related to use of narcotics and also it was for officer safety as a precaution. I knew I was going to go to the front door of a residence to verify their story and I'd be leaving my fellow officer partner, John Gaspar, alone with the suspects. And because the suspects appeared extremely nervous and suspect Bautista kept pacing back and forth and looking, turning his head back and forth as if he was thinking about running.
The woman at the house verified that Bautista had asked her to call a cab, telling her that their car had broken down. However, when Powers returned and asked where the car was, Bautista replied that they did not have a car. The policemen then separated Bautista and Martinez by about thirty feet for further questioning.

During the separate questioning, the officers asked the defendants a series of questions concerning their identity, their companion's identity, the identity of the person who dropped them off in the neighborhood, the kind of car that person had been driving, their reason for being in the neighborhood, the person they were meeting, their knowledge of the street names in the neighborhood, and whom they knew in the neighborhood. The defendants gave inconsistent as well as suspicious answers. They did not know each other's names, the names of the streets, who dropped them off, or who they were meeting. Martinez said the car that dropped them off was green, and Bautista said it was blue. Martinez gave a false name and then was unable to spell it. At one point Bautista switched his story and said he had been dropped off to make a dope purchase and that he had $250 in cash for the transaction. When asked if he had any money for cab fare, Martinez also said he had about $250. Defendants claim this separate questioning lasted approximately 10-12 minutes. The policemen testified that the entire stop took only 10-12 minutes.

After comparing the inconsistent and contradictory responses, the officers told the defendants they were under arrest. They were taken to police headquarters, searched, and then given Miranda warnings. During the search, the police found several of the bait bills taken from the bank. Both defendants subsequently confessed to committing the bank robbery.

Defendants argue that the initial stop was not supported by a founded suspicion of criminal activity, that the use of handcuffs constituted an arrest without probable cause, that the continued detention and interrogation exceeded what is permissible during an investigatory stop, and that at the time of the formal arrest the police still did not have probable cause. We reject the arguments

The 9th Circuit Court found the police officers committed no Fourth Amendment violations. The initial stop was supported by a founded suspicion of criminal activity. The handcuffing was reasonable under the circumstances and did not constitute an arrest without probable cause.
US v. Hensley - Reasonable suspicion & stopping a suspect of a past crime: US v. Hensley, 469 U.S. 221 (1985): When police locate a suspect of a past crime, they can stop and ask the person questions and check identification based on reasonable suspicion. Officers can rely on a "wanted flyer" issued on reasonable suspicion to stop a person

Facts:
Following an armed robbery in the Cincinnati suburb of St. Bernard, Ohio, a St. Bernard police officer, on the basis of information obtained from an informant that respondent had driven the getaway car during the robbery, issued a "wanted flyer" to other police departments in the area. The flyer stated that respondent was wanted for investigation of the robbery, described him and the date and location of the robbery, and asked the other departments to pick up and hold him for the St. Bernard police. Subsequently, on the basis of the flyer and after inquiring without success as to whether a warrant was outstanding for respondent's arrest, police officers from Covington, Ky., another Cincinnati suburb, stopped an automobile that respondent was seen driving. One of the officers recognized a passenger in the car as a convicted felon and, upon observing a revolver butt protruding from underneath the passenger's seat, arrested the passenger. After a search of the car uncovered other handguns, respondent was also arrested. Respondent was then indicted on the federal charge of being a convicted felon in possession of firearms. Respondent moved to suppress the handguns from evidence on the grounds that the Covington police had stopped him in violation of the Fourth Amendment and the principles announced in Terry v. Ohio, 392 U. S.

The Federal District Court denied respondent's motion, and he was convicted. The Court of Appeals reversed, holding that the stop of respondent's car was improper because the crime being investigated was not imminent or ongoing, but rather was already completed, that the "wanted flyer" was insufficient to create a reasonable suspicion that respondent had committed a crime, and that therefore his conviction rested on evidence obtained through an illegal arrest

The U.S. Supreme Court reversed the Court of Appeals and held that

where police have been unable to locate a person suspected of involvement in a past crime, the ability to briefly stop that person, ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice. Restraining police action until after probable cause is obtained would not only hinder the investigation but might also enable the suspect to flee and remain at large. The law enforcement interests at stake in these circumstances outweigh the individual's interest to be free of a stop and detention that is no more extensive than permissible in the investigation of imminent or ongoing crimes. When police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion.
If a "wanted flyer" has been issued on the basis of articulable facts supporting a reasonable suspicion that the person wanted has committed an offense, then reliance on that flyer justifies a stop to check identification, to pose questions, or to detain the person briefly while attempting to obtain further information. It is the objective reading of the flyer that determines whether police officers from a department other than the one that issued the flyer can defensibly act in reliance on it. Assuming that the police make a Terry stop in objective reliance on a flyer, the evidence uncovered in the course of the stop is admissible if the police who issued the flyer possessed a reasonable suspicion justifying the stop, and if the stop that occurred was not significantly more intrusive than would have been permitted the issuing department
Utah v Strieff - Evidence discovered after an unlawful stop: Utah v. Strieff, 14-1373 (SCOTUS 2016): In the absence of flagrant police misconduct, the discovery of a valid, pre-existing, and untainted arrest warrant attenuated (weakened) the connection between the unconstitutional investigatory stop and the evidence seized incident to the lawful arrest, which allowed the evidence to be used against the defendant.

Facts:
Utah Detective Douglas Fackrell received an anonymous tip about drug sales in a South Salt Lake residence, so he surveyed the area over a short period of time and speculated there was drug activity taking place. Fackrell saw Edward Joseph Strieff, Jr. leaving the residence and stopped him for questioning. During the stop, Fackrell discovered Strieff had an outstanding warrant and arrested him. During the lawful search after his arrest, Fackrell found methamphetamine and a drug pipe on Strieff’s person. The district court ruled that, although Fackrell did not have enough evidence to conduct an investigatory stop, the methamphetamine and drug paraphernalia obtained during the lawful search incident to arrest justified the admission of that evidence for trial. The Utah Court of Appeals affirmed the district court’s ruling, but the Utah Supreme Court reversed and held that the evidence should have been suppressed because the warrant that was the basis for the arrest was discovered during an unlawful investigatory stop

The U.S. Supreme Court overruled the Utah Supreme Court holding that evidence obtained in violation of the 4th Amendment’s protections should not be excluded from evidence when the costs of its exclusion outweighs its benefits. Exclusion is not justified when the link between the unconstitutional conduct and the discovered evidence is too attenuated. To determine whether the connection is attenuated, courts must examine the temporal proximity of the discovery of the evidence to the unconstitutional conduct, the presence of intervening circumstances, and the flagrancy of the police misconduct. Based on the analysis of those factors, when a valid warrant is discovered after an unconstitutional investigatory stop, the connection between the unconstitutional conduct and the discovery of evidence incident to a lawful arrest based on the warrant is sufficiently attenuated

Exigency & Emergency

Use of Force

Search & Seizure

Traffic Stops

Assault

Controlled Substances

Oregon v. Hubbell, 314 Or App 844 (2021) - Possession of drugs with the intent to sell no longer considered a substantial step towards the crime of delivery: Oregon v. Hubbell, 314 Or App 844 (2021): Possession of drugs with the intent to sell them is no longer considered a substantial step towards the crime of delivery and will not support a conviction for delivery of a controlled substance, although in some circumstances it could be enough to support a charge of attempted delivery. State v. Boyd, 92 Or App 51 (1988) overturned

Facts:
Police responded to a call that three people had overdosed at a hotel room in Tigard, Oregon. The likely cause of the overdoses was determined to be pure fentanyl powder. One of the people who overdosed told police the fentanyl came from a container in defendant’s room at a different hotel in Tigard. At the time, defendant was incarcerated in the Columbia County jail.

A search warrant was obtained and executed for defendant’s room. In the room a knitted cap, inside of which were several plastic zip lock baggies, was found. One bag contained an ounce of what appeared to be a pure white powder. Another smaller baggie contained .23 grams of the same powder. Four more baggies contained .04 grams of the same powder, and one also included methamphetamine. The cap also contained three or four empty baggies with white powder residue. The crime lab later identified the white powder as fentanyl

The amount of fentanyl found in defendant’s room was never tested for purity, but one ounce of pure powder would have been equivalent to 375,000 microgram doses at 75 micrograms per dose. The amount in the four small baggies, .04 grams, was consistent with either a user amount or sale to street-level dealers to mix with other drugs. The detective estimated the street value of the fentanyl found in defendant’s room to be in the $1,000 to $3,000 dollar range.

When interviewed by police and told about the overdoses and asked about the fentanyl. The defendant said the fentanyl had been in his possession for some time. He said that he got it from an ex-girlfriend whose associate in the military had obtained it “through the dark web from China.” According to defendant, he had not delivered or distributed the fentanyl “because he knew the dangers of it and didn’t want to be responsible for anyone’s death.” He said that it had been in the tub since he obtained it, that he was preparing to move, and that he had moved the tub from another location to the hotel room and had plans to move it to a new location.

After the interview, defendant was arrested and charged with unlawful possession of a Schedule II controlled substance, 475.752(3)(b), and unlawful delivery of a Schedule II controlled substance under 475.752(1)(b).

At trial, the state, relying on Boyd, argued the defendant should be found guilty based on “the idea that possession with intent to deliver constitutes delivery even when no actual transfer is shown.” In the state’s view, it could be inferred from the large amount of fentanyl, coupled with the prepackaging, that defendant intended to transfer the drugs.

Defendant, argued that Boyd required more than pre-packing to give rise to an inference of intent to deliver, and moved for a judgment of acquittal on that basis. According to defendant, the record included no evidence as to “who, when, or why the bags were broken up at all,” nor was there any evidence of other materials commonly associated with the transfer of controlled substances, such as scales, cutting agents, or transaction records. Without that evidence there was no “substantial step” toward the delivery of a controlled substance, and a “substantial step” required an affirmative act moving toward a delivery “today, tomorrow, at some time in the near future rather than just at some point.”

The trial court rejected defendant’s arguments, explaining that it was not aware of any authority requiring the state to prove beyond a reasonable doubt that the prospective sale was going to occur within a specified time period. The court explained that defendant “had several baggies with user-size quantities prepared and ready to go,” and it found him guilty on both counts.

The State Appeals Court concluded that Boyd was plainly wrong and overruled that decision. In particular, the court of appeals concluded that Boyd wrongly relied on the definition of “attempt” found in 161.405(1) in construing the term “attempted transfer” in the delivery statute. Relying on dictionary definitions of the words “attempt” and “transfer,” the court of appeals explained “the words ‘attempted transfer’ appear to describe an unsuccessful effort to cause the controlled substances to pass from one person to another.”

The court held that a person who takes a substantial step toward the crime of delivery, but has not yet attempted the transfer, is guilty of attempted delivery: “If a defendant has tried to actually transfer a controlled substance to another person, that defendant will be guilty of the completed offense, regardless of whether the transfer itself was successful. But, where a person has merely taken a substantial step toward the crime of delivery but has not yet attempted the transfer itself, the defendant will have committed the inchoate crime of attempted delivery of a controlled substance.”

Applying that test to the facts before it, the court in Hubbell held that defendant was guilty of attempted delivery but not delivery. A jury could find that defendant - who possessed separately packaged fentanyl that constituted hundreds of thousands of individual doses—had taken a substantial step toward the crime of delivery. The amount of drugs, and its packaging, showed that defendant had acquired and possessed the drugs for future transfer. But defendant was not guilty of delivery because he had not attempted to transfer the drugs. That is, the state’s evidence did not “give rise to an inference that defendant made some effort to cause the controlled substances to pass from one person to another.”

Civil Rights

Lang v. California 594 US (2021) - Not every fleeing misdemeanour suspect creates an exigent circumstance that allows an officer to pursue into the home (or curtilage of the home): Lang v. California 594 US (2021): Pursuit of a fleeing misdemeanour suspect does not categorically qualify as an exigent circumstance justifying a warrantless entry into a home.

Facts:
This case began when petitioner Arthur Lange drove past a California highway patrol officer in Sonoma. Lange, it is fair to say, was asking for attention: He was listening to loud music with his windows down and repeatedly honking his horn. The officer began to tail Lange, and soon after- ward turned on his overhead lights to signal that Lange should pull over. By that time, though, Lange was only about a hundred feet (some four-seconds drive) from his home. Rather than stopping, Lange continued to his drive- way and entered his attached garage. The officer followed Lange in and began questioning him. Observing signs of intoxication, the officer put Lange through field sobriety tests. Lange did not do well, and a later blood test showed that his blood-alcohol content was more than three times the legal limit.

The State charged Lange with the misdemeanour of driving under the influence of alcohol, plus a (lower-level) noise infraction. Lange moved to suppress all evidence obtained after the officer entered his garage, arguing that the warrantless entry had violated the Fourth Amendment. The State contested the motion. It contended that the officer had probable cause to arrest Lange for the misdemeanour of failing to comply with a police signal. And it argued that the pursuit of a suspected misdemeanant always qualifies as an exigent circumstance authorising a warrantless home entry.

The Superior Court denied Lange’s motion, and its apellate division affirmed.

The California Court of Appeal also affirmed, accepting the State’s argument in full. In the court’s view, Lange’s “failure]to immediately pull over” when the officer flashed his lights created probable cause to arrest him for a misdemeanour. And a misdemeanour suspect, the court stated, could “not defeat an arrest which has been set in motion in a public place” by “retreat[ing] into” a house or other “private place.” Rather, an “officer’s ‘hot pursuit’ into the house to prevent the suspect from frustrating the arrest” is always permissible under the exigent-circumstances “exception to the warrant requirement.” That flat rule resolved the matter: “Because the officer was in hot pursuit” of a misdemeanour suspect, “the officer’s warrantless entry into the suspect’s driveway and garage was lawful.”

The California Supreme Court denied review.

The US Supreme Court reversed stating: the flight of a suspected misdemeanant does not always justify a warrantless entry into a home. An officer must consider all the circumstances in a pursuit case to determine whether there is a law enforcement emergency. On many occasions, the officer will have good reason to enter— to prevent imminent harms of violence, destruction of evidence, or escape from the home. But when the officer has time to get a warrant, he must do so - even though the misdemeanant fled.

State v. Schumacher 315 Or. App. 298 (Or. Ct. App. 2021) - At trial, mentioning defendant having invoking their right to counsel may lead to a mistrial: State v. Schumacher 315 Or. App. 298 (Or. Ct. App. 2021): An officer's reference to defendant's exercise of a constitutional right jeopardised the right to a fair trial, because, from that reference, the jury was likely to infer that defendant exercised the right because he was guilty of the charged offence.

Facts:
Responding to a late-night call about a car that had crashed into a tree, police officers arrived at the scene and located defendant, the car's owner, a couple of blocks away from the crash. The responding officer thought that defendant smelled of alcohol. Defendant denied drinking and driving, and the officer asked him to perform field sobriety tests (FSTs), which defendant refused. The officer warned defendant that his refusal could be used against him, but defendant again refused. After that, defendant requested a lawyer. He was ultimately arrested on suspicion of driving under the influence of intoxicants (DUII). A few hours later, defendant took a breath-alcohol test at the police station, the result of which was a blood alcohol content (BAC) of .05 percent-an amount below the statutory limit. At that time, defendant agreed to talk "a little bit" with the officer and told the officer that someone else had driven the car. Defendant was charged with felony driving under the influence of intoxicants (DUII) and reckless driving.

At trial, the prosecutor highlighted in her opening statement defendant's refusal to perform the FSTs and that defendant would have been more intoxicated at the time of the crash than he was hours later when he took the breath-alcohol test the police station.

On direct examination, the arresting officer described the nature of FSTs and explained the legal effects of refusing to perform them. Then, he said that defendant "just refused to admit to anything and didn't want to take any standardised field sobriety test or anything of that nature." Later, the prosecutor asked the officer again about defendant's response to the request to perform FSTs. The officer described how defendant had refused, despite being warned of the adverse legal effects of the refusal. The officer then added that "[defendant] refused to submit to [the FSTs, ] and he requested a lawyer as well, so [I] ended the interview as well."
Defendant's attorney interjected, saying, "I have a matter for the court." A sidebar off the record and out of the presence of the jury followed, after which, the court resumed the trial, saying "continue." Later in his testimony, the officer discussed how defendant had ultimately agreed to talk to him a little, even though he had earlier invoked his right to counsel.

After the officer testified, defendant, out of the presence of the jury, asked the court to rule on his motion to strike the reference to defendant's invocation of his right to counsel. The court said, "I will just say that [that] will be put into a curative instruction, which I would envision you preparing." Defendant responded, "I would ask for a mistrial. It's an impermissible thing to which to be testified." Defendant maintained that the refusal to perform FSTs, coupled with the reference to his invocation of rights created an inference that defendant knew that he was guilty and "had something to hide."

To that, the state replied that a curative instruction would address the issue, and that if it had been error, the error was "harmless," because the officer later testified that defendant had eventually agreed to talk with the officer without an attorney. The court agreed with the state and denied the motion for mistrial.

Near the end of trial, out of the jury's presence, the court asked defendant if he had "put together some kind of a curative instruction." Defendant replied that he had decided not to offer one because he would "rather not emphasise it more to the jury," which the court said was "frankly understandable." Defendant was convicted and appeals.

On appeal the Oregon Court of Appeals concluded the officer's reference to defendant's exercise of a constitutional right "jeopardized the right to a fair trial," because, from that reference, "the jury was likely to infer that [defendant] exercised the right because he was guilty of the charged offense." The trial court did not cure that impropriety immediately or otherwise, and no other evidence negated the inference of guilt. Accordingly, it was error to deny defendant's motion for mistrial.