Top Ten Major Legal Cases For Cops...

Police legal advisors from across the nation gathered at the IACP Conference to learn from each other and compare notes on legal developments in law enforcement legal topics across the country. Several presenters discussed the case of Arizona v. Gant and its impact on the search incident to arrest doctrine. Legal officers joined with police physicians for a panel examining the safe use of electronic control devices. Carl Milazzo of the Federal Law Enforcement Training Center was joined by the DEA Training Academy’s Jayme Holcomb and the FBI’s Jonathan Rudd in a session exploring the search incident to arrest doctrine applied to cell phones and GPS devices in the post-Gant world. Elliot Spector, a fixture at the IACP updates on civil liability, presented the latest cases on racial profiling, false arrest, as well as search and seizure liability. The Americans for Effective Law Enforcement has graciously provided access to all of the presentations and papers from the 2009 Legal Officers Section meetings and posted them here.
An employment law update, including a discussion of the Supreme Court’s decision in the Connecticut firefighter promotional exam case of Ricci v. DiStephano, was presented by Orlando City Police advisors Jody Litchfield and Lee Ann Freeman. In that case, the Supreme Court ruled that the City of New Haven violated the Civil Rights Act by tossing out the results of a test where 18 Hispanic and white firefighters passed the promotional exam, but no black firefighters achieved a passing score. The city believed that the test had a disparate impact on black firefighters seeking promotion to lieutenant and captain positions. The case drew national attention because then-judge Sonia Sotomayor was on the appellate court panel affirming the city’s decision.
Cases decided in the 2008-2009 term

Arizona v. Johnson, 129 S.Ct. 781 (2009)

Johnson was the backseat passenger in a car stopped for a traffic violation. Johnson’s behavior and clothing prompted questioning. The officer learned that Johnson was from a town with a Crips gang and that he’d served prison time. The officer asked Johnson to get out of the car to question him further about his gang affiliation. The officer suspected that Johnson was armed and frisked him, feeling a gun. A further search revealed that he was holding marijuana. Johnson began to struggle, and the officer handcuffed him. Johnson was charged with possession of drugs and possession of a weapon by felon.
The Arizona Court of Appeals held that Johnson was lawfully seized during the encounter by virtue of being a passenger in a car that was lawfully stopped for an insurance violation. The Arizona court also held that the initial encounter between the officer and Johnson was voluntary. However, the court stated that once the officer began to question Johnson on a matter unrelated to the traffic stop, the frisk authority ceased, unless there was independent reasonable suspicion that Johnson had committed a crime.
In Terry v. Ohio, 391 U.S. 1 (1968), the Supreme Court ruled that an officer may conduct a frisk when two conditions are present. First, the investigatory stop must be lawful, based on reasonable suspicion that the person detained is committing, is about to commit, or has committed, a crime. Second, to progress from a stop to a frisk, the officer must reasonably suspect that the person stopped is armed and dangerous. Two years ago, in Brendlin v. California, 551 U.S. 249 (2007), the Supreme Court held that a traffic stop constitutes a seizure of a vehicle’s passengers as well as the driver. The temporary seizure of the vehicle occupants normally remains reasonable for the duration of the stop. The Court held that Johnson remained lawfully seized for the duration of the traffic stop. Thus, the first requirement of the Terry v. Ohio frisk rule was satisfied. Because there was also reasonable suspicion that Johnson was armed, the frisk was proper.
Arizona v. Johnson also answered another vital question for street cops. Four years ago, in Muehler v. Mena, 544 U.S. 93 (2005), the Supreme Court held that mere police questioning on a topic unrelated to the initial reason for an otherwise lawful investigatory detention does not create a further seizure requiring a further legal basis. Muehler was a case of a detention during a search warrant execution at a home. Many courts subsequently applied its reasoning to questioning at traffic stops. Some ruled that an officer’s questioning must be strictly limited to the purpose of the traffic stop; others disagreed. A unanimous Supreme Court has now resolved this important question. The Court held: “An officer's inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.”
Arizona v. Gant, 129 S.Ct. 1710 (2009)

The United States Supreme Court restricted the search incident to arrest doctrine, rejecting a broad reading of New York v. Belton, 453 U.S. 454 (1981). In Arizona v. Gant, the Court overturned the search incident to arrest of Rodney Gant’s car after Gant was arrested for driving with a suspended license, handcuffed and secured in the back of a patrol car with several officers at the scene. Officers found cocaine in Gant’s car during the search incident to the driver license arrest.
The Court held that a search of the passenger compartment of a vehicle following an arrest is allowed “only if [1] the arrestee is within reaching distance of the passenger compartment at the time of the search or [2] it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.”
In Chimel v. California, 395 U. S. 752 (1969), the Supreme Court approved a search incident to arrest of the “lunge area” on two theories. First, the suspect could reach a weapon and endanger the officer. Second, the suspect could grab and destroy evidence. Once the suspect is handcuffed and moved away from the vehicle, the suspect’s ability to reach evidence or a weapon is eliminated, or at least significantly reduced. Thus, no search incident to arrest is permissible under the rationale that the suspect can destroy evidence or reach a weapon. One of the practical dangers of the decision in Arizona v. Gant is that some officers may conclude that there is a practical balancing act, a tactical trade off. Leave the suspect unsecured, unhandcuffed, and near the car, and there remains the possibility that that suspect would lunge toward a weapon and thus, the legal justification for the search remains. The legal justification may come at the cost of a significant risk to the officers’ safety.

Five years ago, in Thornton v. United States, 541 U. S. 615 (2004), the Court recognized that a search of a vehicle incident to the arrest of a recent occupant may be also justified “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” The Gant decision also leaves this holding intact. Because Gant and the other two suspects were in custody, handcuffed and secured in separate police cars, the Court refused to apply the Chimel lunge or reaching justification to the case. And because Gant was arrested for a driver license violation, the Thornton evidentiary search holding would not apply. It was not reasonable to believe that the vehicle held evidence of Gant’s suspended driver license status.
Gant holds that once the arrestee is secured, a search incident to arrest of the vehicle is lawful only when there is reason to believe that the vehicle holds evidence of the underlying crime on which the arrest is based. Gant does not foreclose other search doctrines that may apply to particular cases. Fourth Amendment warrant clause exceptions of consent, probation/parole search, exigent circumstances, vehicle “frisk” for weapons upon appropriate reasonable suspicion, inventory and community caretaking, continue to potentially apply.

Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009)

This case offers substantial protection to officers and supervisors facing claims of discriminatory law enforcement. In the months following the September 11, 2009, the FBI and other law enforcement agencies received over 90,000 tips regarding the September 11 terrorist attacks. The usual — and some of the not-so-usual — suspects were rounded up. One such suspect was Javaid Iqbal, a New York cable television installer. Iqbal was incarcerated in the Metropolitan Detention Center in Brooklyn, New York, in the Administrative Maximum Special Housing Unit. Iqbal claimed that he was beaten and called names. He was convicted of fraudulently using another person’s Social Security card and number and was deported to Pakistan. He sued a number of law enforcement officials, including FBI Director Robert Mueller and former United States Attorney General John Ashcroft. He claimed that Mueller and Ashcroft personally condoned his incarceration and incarceration of others based on their religious affiliation and ethnic origin.

A slender 5-4 majority held that the complaint failed to plead sufficient facts to state a claim for purposeful and unlawful discrimination. The Court has previously ruled that the theories of respondeat superior and vicarious liability cannot be employed to impose liability under Section 1983 or a Bivens action on a command or policy level official for the acts of their subordinates. Ashcroft v. Iqbal extends protection to law enforcement supervisors accused of acquiescing in discriminatory conduct by requiring plaintiffs to show the supervisors’ discriminatory purpose, and in use of force cases by requiring plaintiffs to show that the supervisors knew of and acquiesced in the use of force, and had a sadistic purpose in their actions.

Herring v. United States, 129 S.Ct. 695 (2009)

Herring went to the Coffee County Sheriff’s impound yard to check on one of his vehicles that had been impounded. As he was leaving, a deputy saw Herring, recognized him, and checked for an arrest warrant. When the deputy found no warrant in Coffee County, he asked a clerk to telephone the neighboring Dale County Sheriff and check for warrants. The Dale County Sheriff’s clerk stated that there was an arrest warrant for Herring. The deputy stopped Herring, arrested him, searched him, and found a handgun and some methamphetamine. However, within 10 to 15 minutes of the call to the Dale County Sheriff, the clerk called back and said that the warrant had been recalled and was not valid. Due to negligent record-keeping by the court clerk, the warrant was “active” in the computer database.
Herring asked to have the gun and drug evidence suppressed. The Court of Appeals refused, holding that the good faith exception to the Fourth Amendment exclusionary rule should apply. Herring appealed to the United States Supreme Court, which upheld the court of appeals’ decision. For the first time ever, the Supreme Court extended the good faith exception to the exclusionary rule for constitutional violations arising from an officer’s error and not merely a court worker’s mistake. This decision follows on the 2006 ruling in Hudson v. Michigan, 547 U.S. 586 (2006), in which the Supreme Court refused to apply the exclusionary rule as a sanction for a violation of the knock and announce rule in search warrant execution. The Court noted, exclusion “has always been our last resort, not our first impulse.”
The Court focused on the flagrancy of the error, whether suppression was likely to determine future errors of a similar nature, and whether exclusion of the evidence outweighs the harm to justice incurred when a guilty person goes free. In applying the good faith exception to Herring’s situation, the Court emphasized that it “did not find the record-keeping error to be reckless or deliberate.” Though the Court also left open the possibility that not all police record keeping errors are covered by the good faith exception to the exclusionary rule, it directed lower courts to consider whether such errors are systemic, or whether police have recklessly or intentionally entered false information into a database. The Court was sharply divided, with four justices agreeing that exclusion of evidence is the proper remedy for negligent errors in police record-keeping. The decision seems to signal that the Court wants to see the Exclusionary Rule applied for its original purpose: to deter police misconduct.
Kansas v. Ventris, 129 S.Ct. 1841 (2009)

Donnie Ray Ventris and his girlfriend confronted Hicks at Hicks’s home. Polite conversation went downhill and Hicks was shot and killed. Ventris and the girlfriend took a bunch of his stuff. When arrested, Ventris and his girlfriend each claimed that the other did the shooting. One has to wonder whether the relationship lasted!

While in prison awaiting trial, Ventris shared a cell with Doser, a probation violator who had been specifically recruited by the police to listen for any incriminating information from Ventris. In exchange for this information, the prosecution offered to release Doser from probation and spare him the possibility of serving additional prison time. Doser subsequently told police that Ventris privately admitted to being the one who shot Hicks and took his possessions.
At trial, Ventris took the stand and testified that it was his girlfriend who drew the gun and shot Hicks. The prosecution called Doser to testify about Ventris’s alleged jailhouse confession. Ventris objected to this testimony on the ground that the police had violated his Sixth Amendment rights because Doser, acting as an undercover informant, had effectively interrogated him in the absence of his counsel and without a knowing and voluntary waiver of his Sixth Amendment rights. The prosecution conceded that Ventris’s Sixth Amendment rights had been violated, but it argued that the testimony should nonetheless be admissible for purposes of impeachment that is, to contradict Ventris’s own testimony and thereby call his truthfulness into question. Ventris was ultimately convicted of aggravated robbery and aggravated battery.



The Court held that any benefits from exclusion in these circumstances are greatly outweighed by its costs. The costs of exclusion are substantial, as it would offer a shield to defendants who take the stand at trial and then commit perjury. The marginal deterrence achieved through exclusion, on the other hand, would be small, since the prosecution is already significantly deterred when these uncounseled statements are barred from its case in chief.

Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009)

This case may well have the biggest financial impact in many years on the cost of policing and prosecution. Boston police officers arrested Luis Melendez-Diaz as he sold cocaine sale in a K-Mart parking lot. One wonders whether the police considered the case to be a blue light special. At trial, bags of the cocaine allegedly sold by Melendez-Diaz were introduced into evidence along with the drug analysis certificates from a state lab technician who analyzed the drugs and identified them as cocaine. The jury convicted Melendez-Diaz of distributing cocaine.
Melendez-Diaz argued on appeal that the prosecution’s introduction of the drug analysis certificates violated his Sixth Amendment confrontation right under Crawford v. Washington. After Crawford, a defendant has the right to demand that either a hearsay declarant testify or that the prosecution show that the declarant is unavailable and that the defendant had a prior opportunity for cross examination.
Prior to the Court’s decision in this case, 44 states and the District of Columbia allowed the prosecution to introduce laboratory technicians’ certificates to identify illicit drugs. In the first few years after Crawford v. Washington, the Court denied certiorari in cases seeking to challenge the admission of such certificates as “testimonial.” Dozens of states, and many national organizations, filed amicus briefs supporting the State of Massachusetts.
Massachusetts argued that the Confrontation Clause was traditionally applied to statements made to police by eyewitnesses to a crime, and not peripheral witnesses such as forensic technicians. The state urged the Court to examine the character of lab reports at being consistent with the sort of public records that fit an accepted exception to the hearsay prohibition. Melendez-Diaz countered that the reports are prepared expressly for the purpose of aiding a criminal prosecution, and therefore lack the objective character of other public records.

The Court held that the lab technicians’ affidavits are testimonial and are subject to the Court’s holding in Crawford v. Washington. Massachusetts had also argued that the defense was free to call the lab technician and the Court rejected that claim. Only four days after issuing the opinion in Melendez-Diaz, the Court granted certiorari in Commonwealth v. Magruder, 657 S.E.2d 113, cert. granted sub nom Briscoe v. Virginia, No. 07 1191 (June 29, 2009) and will squarely address the question of “If a State allows a prosecutor to introduce a certificate of forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the State avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?”

The Court stated that “the sky will not fall” after its ruling. Perhaps not, but the day-to-day business of prosecuting alcohol and drug offenses will become far more complicated. Though this decision significantly impacts the prosecution burden, it may well be that a middle ground will be found in most cases. An effective defense attorney recognizes the value in stipulating to chemical testing when there is no advantage to be gained. Most technicians are excellent witnesses and their testimony generally scores points only for the prosecution. Defense attorneys may also exercise caution in irritating judges, juries and even prosecutors with unnecessary demands that the laboratory staff testify. On the other hand, there are often advantages in cross examining even the best witness in a close case.


Some states already have notice statutes applying to laboratory tests. The Court observed that these “notice-and-demand statutes require the prosecution to provide notice to the defendant of its intent to use an analyst’s report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst’s appearance live at trial.” Because these statutes do not shift the burden, they are constitutional.

Melendez-Diaz is certain to generate legislative action and additional litigation. One immediate question is whether the calibration affidavits used to certify breath alcohol testing devices and the calibration affidavits for other laboratory equipment will fall under the shadow of Crawford and Melendez-Diaz.
Pearson v. Callahan, 129 S.Ct. 808 (2009)

Though not a widely-heralded case from this year, this case is a great win for attorneys who defend police officers in civil rights lawsuits. A confidential informant told officers that he could buy methamphetamine from Afton Callahan. The CI went to Callahan’s home and Callahan invited him into the home. After seeing methamphetamine, the CI gave a pre arranged signal and officers entered the home. They had neither an arrest warrant nor a search warrant. During the entry, an officer saw Callahan drop what was later identified as a bag of methamphetamine. During the criminal appeal, the prosecution conceded the lack of warrant and the lack of exigent circumstances for the entry. Callahan prevailed and the Utah Court of Appeals reversed his conviction. Callahan then sued for damages in federal court. The Court of Appeals for the Tenth Circuit found that the “consent once removed” doctrine was not applicable when the person entering by consent is not a police officer. The Court of Appeals ruled that the officers violated Callahan’s civil rights, and that they were not entitled to qualified immunity because they should have known that they were violating Callahan’s rights.


The Supreme Court reversed the Court of Appeals and held that the officers were entitled to qualified immunity from suit. However, the critical holding in the Supreme Court decision does not resolve the issue of “consent once removed.” Though the officers are victorious in the litigation, the real value of this case is that the Court took the opportunity to revise the rule of Saucier v. Katz, 533 U.S. 194 (2001). Saucier imposed an analytical model that required a court deciding the issue of qualified immunity for officers to first decide whether the facts alleged by a plaintiff actually rose to the level of a constitutional violation, and then decide whether the constitutional right allegedly violated was “clearly established” at the time of the violation. Many lower courts had criticized the rigid analytical approach, arguing that some cases could be resolved by more expedient means. The true benefit of this decision is to allow federal courts more flexibility in dealing with civil rights cases and ultimately to save litigation costs and headaches.

Cases to be decided in this term
Carr v. United States, No. 08-1301

Thomas Carr plead guilty to sexual abuse in 2004. Two years later, Congress passed the Sex Offender Notification Act, requiring all states to provide a public web site with photographs and information about registered sex offenders. Upon Carr’s release from prison, he was required to register as a sex offender. He moved from Alabama to Indiana and was arrested in 2007. Carr was charged with failing to register as a sex offender upon his move to Indiana, in violation of the 2006 federal law. He claimed that the ex post facto doctrine prohibited his prosecution on a law that did not exist when he was originally convicted as a sex offender. The Court of Appeals for the Seventh Circuit rejected Carr’s claim. Other federal appellate courts have reached differing results on the application of the sex offender registration statute to persons convicted of sex crimes prior to its passage.

The high court will also consider another sex offender appeal in United States v. Comstock, in which the Court will determine the constitutionality of keeping a dangerous sex offender incarcerated after the completion of a prison sentence for the underlying crimes.

Berghuis v. Smith, No. 08-1402

This case will revisit the concept of racial proportionality in the jury pool. Diapolis Smith was convicted of murder by an all-white jury. He claimed that the jury pool in Michigan had too few blacks. Black prospective jurors were often excused for work, transportation and child care issues. The Sixth Circuit Court of Appeals held in Smith’s favor, ruling that the statistical analysis showed systemic exclusion of blacks in the jury pool. The Supreme Court will decide whether Smith’s conviction should be tossed on those grounds.
Berghuis v. Thompkins, No. 08 1470

Van Chester Thompkins was convicted of a 2001 murder. Shortly after his arrest, officers provided a Miranda warning. Thompkins said that he understood his rights. However, he did not offer an explicit waiver of his rights. During the interrogation, Thompkins occasionally nodded his head, made eye contact with the officers and answered some questions verbally. An officer asked him if he “prayed for forgiveness for shooting that boy down” and Thompkins clearly said “yes.” Thompkins claimed that his less-than-open communications with the officers should have lead them to understand that he did not wish to waive his Miranda rights. The Sixth Circuit Court of Appeals tossed out his confession. The Michigan Attorney General argues that, “Neither Miranda or its progeny prohibit interaction between an officer and a defendant after warnings have been given and acknowledged but before the invocation of rights.”
Florida v. Powell, No. 08-1175

Kevin Powell was arrested and taken to the police station for interrogation. The officers told him that he had a right to consult an attorney before questioning. However, the form of the Miranda warning given did not include a statement that he had the right to have an attorney present during questioning. The trial court found that was not a sufficient breach of the Miranda rule to trigger exclusion of his admissions. The Florida Court of Appeals and Florida Supreme Court disagreed, reversing his conviction. The United State Supreme Court will now decide whether the flawed warning was fatal to a valid interrogation.
McDonald v. Chicago, No. 08-1521

Nearly two centuries passed before the Supreme Court decided a landmark case under the Second Amendment. Following on the heels of District of Columbia v. Heller, which held that the right to bear arms is a personal right, this appeal asks the Supreme Court to determine that the City of Chicago’s ban on handguns, as well as certain other restrictions on long guns, are unconstitutional. The theory relied upon by the plaintiff is that the Selective Incorporation doctrine of the Fourteenth Amendment’s Due Process Clause forces the City of Chicago to recognize that personal handgun ownership is an individual constitutional right. The case is certain to generate substantial interest among law professors and constitutional scholars because the petition also asks the Supreme Court to entirely overrule the Slaughter-House Cases. These were a series of three cases decided just after the Civil War that the Fourteenth Amendment did not requirer application of fundamental civil rights to the various states’ (and local) governments. If the Slaughter-House Cases are overturned, it likely means that the right to a jury in a civil case and the right to a grand jury in a criminal case will automatically be binding upon state governments. Thus, the irony of the case is that conservative gun rights advocates are pressing an issue that stands to advance a cause promoted for many years by civil libertarians often associated with more liberal causes.

Supreme Court resource sites:
• http://www.oyez.org/

• http://www.supremecourtus.gov/

• www.kenwallentine.com/xiphos

Ruling shows hazy line between detention, arrest

By Peter Hermann
October 21 2009

When you tell someone you "got arrested," it's a safe bet you mean a cop put you in handcuffs and took you to jail. Turns out in Maryland you can "get arrested" without any of those things happening. In fact, the law says you can "be arrested" by a police officer even if that very same police officer insists he didn't arrest you.

The complete article can be viewed a

at:http://www.baltimoresun.com/news/maryland/crime/bal-md.hermann21oct21,0,6303271.story

Police 'stop-and-frisk' technique drawing criticism

10/09/2009
By Colleen Long Associated Press

Related Articles:'Other person' encountersPhilly cops ready to up stop-and-frisk tacticsStudy finds no bias in NYPD's aggressive stop-and-frisk policy

NEW YORK — A teenager trying to get into his apartment after school is confronted by police. A man leaving his workplace chooses a different route back home to avoid officers who roam a particular street.

These and hundreds of thousands of other Americans in big cities have been stopped on the street by police using a law-enforcement practice called stop-and-frisk that alarms civil libertarians but is credited by authorities with helping reduce crime.

Police in major U.S. cities stop and question more than a million people each year - a sharply higher number than just a few years ago. Most are black and Hispanic men. Many are frisked, and nearly all are innocent of any crime, according to figures gathered by The Associated Press.
And the numbers are rising at the same time crime rates are dropping.

Ronnie Carr's experience was typical: He was fumbling with his apartment door after school in Brooklyn when plainclothes officers flashed their badges.

"What are you doing here?" one asked, as they rifled through his backpack and then his pockets. The black teenager stood there, quiet and nervous, and waited.

Carr said the officers told him they stopped him because he looked suspicious peeking in the windows. He explained that he had lost his keys. Twenty minutes later, the officers left. Carr was not arrested or cited with any offense.

"I felt bad, like I did something wrong," he said.

Civil liberties groups say the practice is racist and fails to deter crime. Police departments maintain it is a necessary tool that turns up illegal weapons and drugs and prevents more serious crime.

Police records indicate that officers are drawn to suspicious behavior: furtive movements, actions that indicate someone may be serving as a lookout, anything that suggests a drug deal, or a person carrying burglary tools such as a slim jim or pry bar.

The New York Police Department is among the most vocal defenders of the practice. Commissioner Raymond Kelly said recently that officers may stop as many as 600,000 people this year. About 10 percent are arrested.

"This is a proven law enforcement tactic to fight and deter crime, one that is authorized by criminal procedure law," he said.

The practice is perfectly legal. A 1968 Supreme Court decision established the benchmark of "reasonable suspicion" - a standard that is lower than the "probable cause" needed to justify an arrest.

But in the mid-1990s, then-Mayor Rudy Giuliani and NYPD Commissioner William Bratton made stop-and-frisk an integral part of the city's law enforcement, relying on the "broken windows" theory that targeting low-level offenses helps prevent bigger ones.

Street stops started to go up, and overall crime dropped dramatically in a once-dangerous city.
Last year, New York police stopped 531,159 people, more than five times the number in 2002. Fifty-one percent of those stopped were black, 32 percent Hispanic and 11 percent white.Not all stops are the same. Some people are just stopped and questioned. Others have their bag or backpack searched. And sometimes police conduct a full pat-down.

David Harris, a law professor at the University of Pittsburgh and an expert on street stops, said few searches yield weapons or drugs. And the more people are searched, the more innocent people are hassled.

"The hit rate goes down because you're being less selective about how you're doing this. That has a cost. It's not free," Harris said.

When officers make a stop, they are required to fill out a form, including the time and location of the stop and why police were suspicious. Age, race and whether the person was frisked are also recorded.

In Philadelphia, stops nearly doubled to more than 200,000 from 2007 to 2008. Philadelphia Mayor Michael Nutter deployed an "aggressive" stop-and-frisk policy in the year since his election in November 2007 and overall crime has dropped.

In Los Angeles, where Bratton recently stepped down as police commissioner, pedestrian stops have doubled in the past six years to 244,038 in 2008. The number of people stopped in cars is higher.
About 15 percent of the stops resulted in arrests in 2002, compared with about 30 percent in 2008, according to an analysis of the data by Harvard University's Kennedy School of Government.

Several other major police departments do not keep street-stop statistics or do not release them. Chicago police refused to release numbers to the AP. Boston police say they do not keep the records. The New Orleans department is not required to keep statistics on race and pedestrian stops.

RAND, an independent research agency hired by the New York Police Department to analyze street-stop data in 2007 after public outcry, found little racial profiling. It said the raw statistics "distorted the magnitude and, at times, the existence of racially biased policing."

The NYPD continues to monitor the issue, but after the RAND analysis, officials agreed that large-scale restructuring was unnecessary.

Kelly has warned against more simplistic data reviews.

"There are 8.4 million people in New York City. That number swells to more than 10 million every work day. Police are responsible for more than 800,000 summonses and arrests annually based on the higher standard of probable cause," Kelly said.
"
Under the circumstances, it's not surprising that we make 500,000 or even 600,000 stops based on the less stringent standard of reasonable suspicion."

Civil liberties groups also complain because New York police keep a database of everyone stopped - innocent or not. That makes them targets for future investigations, said Christopher Dunn, associate legal director of the New York Civil Liberties Union.

Los Angeles was forced by federal mandate to release data on street stops - including the race of those stopped - starting in 2000 after a series of scandals. The city government promised to adopt scores of reform measures under federal court supervision.

The LAPD was released from the federal decree in July, but a report last year by the ACLU in Southern California showed that blacks were still nearly three times more likely to be stopped by police than whites.

"The initial defense was: 'Because we're over-policing higher crime neighborhoods, they're predominantly populated by people of color, and that's why,'" said Peter Bibring, an ACLU attorney in Los Angeles.

But an analysis done for the ACLU in 2008 by Yale law professor Ian Ayres accounts for differences in crime rates and still shows minorities are stopped much more.
Some people who are stopped file lawsuits against the city and speak out publicly. Most just accept it.

In Harlem, George Lucas changed his route home from work to avoid a stretch of Seventh Avenue, because he kept being stopped by the police.

"The inconvenience of walking out of my way still saves me the worry and frustration about being stopped," said Lucas, 28, director of a nonprofit.

It's so common in some areas that community groups have begun offering classes on how to behave when stopped.

Courtney Bennett of the nonprofit New York City Mission Society says he regularly hosts groups of 30 men, of all ages, who feel powerless because they are stopped routinely for what they say is no reason. Carr recently attended a similar meeting for teens at another nonprofit called The Door.

Bennett is also a member of the Order of the Feather, a black fraternity that mentors young men and promotes community service. At a recent initiation ceremony in Harlem, it did not take long to find dozens of people who said they were stopped by police.

"You see these guys? They're normal guys, you know? Regular dudes," said Paul Hawkins, 22. "They've all been affected by it somehow. They were stopped, or someone they knew, or their dad or whatever. And they're not, you know, criminals."

Check out the Constitution....

Check out the U.S. Constitution... It's interesting reading!

http://www.constitution.org/indexco_.htm

Bookmark it.

Oath Keepers followup, Interview with Sheriff Richard Mack

Listening to Sheriff Richard Mack and his interview about the oath keepers, shown at sheriffmack.com, who has written a book. This former sheriff has written a book and talks about defying the federal government by advising that the Sheriff of any county can deny entry to any federal agent or IRS agent or even arrest the president of the United States. In addition to keeping the federal government in check. Mack also impels that you can deny paying federal taxes to an extent, drawing on his interpretation of the U.S. Constitution, specifically the bill of rights. Mack also is rallying against the federal government stating that local Sheriff's should ignore federal gun control acts.

Here's the problem with this idea. Although, by state Constitution, Mack is correct, the Sheriff is the ultimate law enforcement authority in each county, UNLESS the state Constitution has been amended relinquishing the Sheriff's power to a police agency (such as the PG county police). The federal government does have control and can make laws that create minimum requirements that citizens must adhear to, such as paying taxes. Don't pay taxes for a couple of years and see if the Sheriff of your local county will come rushing to your aid when the IRS throws you in the slammer... Sheriff's by their very nature are political figures that are elected to office to carry out a job. However, that job can not interfere with the lawful execution of a federal warrant or a federal mandate. This is due to the fact that the states representatives and state congress people are involved in making laws pass. These people are elected by you, the state people to represent you on behalf of your state in allowing/disallowing laws to pass federal muster.


So lets take a look at the tenth amendment (article 12) to the U.S. Constitution:


Article the twelfth [Amendment X]


The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

What this means is that all other powers, not elaborated on by the constitution or prohibited by state constitutions, can be exercised by each state or the people... so, Mack is basically wrong. The U.S. Constitution gives the federal government the power to tax people, it does not limit the states from taxing people (which is why there is state taxes). All this clause means is that powers that are not given are up for grabs if not absorbed by other constitutions or federal mandates.

So lets talk about the right to bear arms. Most people think that the 4th amendment means that everyone has the right to be armed. No. The fourth amendment (really the II Amendment) states, "Article the fourth [Amendment II][4]
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

What this essentially means is that the Maryland national guard unit has the right to bear arms and to keep the security of the state.

Don't get us wrong, give everyone a gun, that way it will be fair!

Blogger of Salisbury News, Joe Albero catching a lawsuit

Kevin Karpinski, a Baltimore attorney representing Devenyns, wrote in the complaint that Albero is liable for the comment, even if he didn't write it. That's because Karpinski charges Albero determines which of the comments submitted by his readers he will publish and whether he will edit them first. Albero erred because he either knew -- or should have known -- the comment was false, Karpinski contends.

Here are our thoughts...

First and foremost, Joe is right, he can't be successfully sued for posting or approving comments of his readers. That would mean that all websites, such as AOL, Yahoo, the Daily Times, and all blog sites would all be liable for anything that their users posted, about anything, ever. It is impossible to know if something that a reader posts is accurate or not due to the amount of research that must be undertaken. Further, it is important to realize that Devenyns is a public official and public officials are subject to criticisms by the public, either public or private. Furthermore, most of what is posted is opinion which is not subject to the truth test. If we say that "Chief XYZ is stupidly", hey that's our opinion. We have no way to check his IQ or can confirm that he is in fact stupid.

He is also protected by Section 230 of Title 47 of the United States Code (47 USC § 230), which is why the Chief of Police and the Mayor lost the last two cases. More information available at http://www4.law.cornell.edu/uscode/47/230.html. Lastly, he is protected by the 1st amendment to the U.S. Constitution of the United States. For more information on Libel and slander go to http://www.enotes.com/everyday-law-encyclopedia/libel-and-slander. In order to reach the level of slander or libel the statement must meet four criteria. Which this case does not.

Answers to Crapper Questions 7/20/09

Disclaimer: THE FOLLOWING IS NOT LEGAL ADVICE. THE FOLLOWING IS OUR OPINION ONLY. CONSULT AN ATTORNEY LICENSED IN YOUR STATE FOR PROPER LEGAL ADVICE. Crapper Answers In Red.

Anonymous said...
Here's a question for you. Why do you still get charged with DUI/DWI if you get brought in for a Breathalyzer and pass it? It happened to me with a Wicomico County Sheriff. Blew a 0.04 and was still charged. Wasn't pulled over for a moving violation, either. This was a couple of years ago, right before Mike Lewis took over, so things could have changed by now. The Deputy showed me right in his SOP binder where it was policy to charge me, and not his decision. I did beat it in court, but it cost me a bundle. I've got my laywer's opinion on this, but I'm interested in hearing things from a law enforcement perspective.

Well, honestly this depends on more factors in the case. Driving while .04 to .08 is actually a DWI and an incarcerable (arrestable) offense. .08 or more is a DUI. You could also have been arrested for driving under an alcohol restricted license. It is not required that the officer stop you for a moving violation. Upon stopping you he may have detected alcohol on your breath or slured speech or other factors that made him/her suspicious that you had been consuming alcoholic beverages. Therefore, the officer may give you field sobriety tests and an intoximeter test (breath-a-lizer). You can read more about this at http://www.peoples-law.org/youth/driving/driving.htm. Even though it is a youth article, the law still applies to adults as well.

Monday, July 20, 2009 11:17:00 AM
Anonymous said...
I have met some truely outstanding LEO's and I am thankfully they are out there doing this job. My question is, as a citizen, what can be done when you know of a officer that really does not know the law, if he does, then he knowingly breaks it. It only takes 1 bad officer to make the rest look bad.

Some officers make mistakes however that is an issue for the court to decide. Unfortunately, there are many, many citizens that feel they know the laws better than some police officers and they may be right, but most often not. Many times people think they know the law and in reality they have no idea what the actual law is. A good case of this is when someone is arrested and they yell to whomever (jail staff, etc) "The officer did not read me my rights!!". Officers are not required to advise a suspect of Miranda, only under custodial interrogations (meaning a citizen is under arrest and is being questioned about the crime or a crime committed). So, best bet is to do what the officer says and then argue your case in court or bring up your concerns with your attorney. You also may contact that officer's direct supervisor to determine if what he did was proper. Most police supervisors will be more then happy to discuss your concerns with you, provided that you are calm and are asking questions rather than complaining about the simple fact that you were arrested.

Monday, July 20, 2009 12:12:00 PM
MoReToCoMe said...
Ask tough questions of area administraters and post there respons or lack of.

Then we would expect them to respond which they will more then likely not do and anyone could impersonate them.

Monday, July 20, 2009 2:24:00 PM
Anonymous said...
i have a question, it seems to me that pills and meth are a "white" thing, seems like middle aged white america is hooked on this crap like there is no tomorrow, is it just a white thing around here or everywhere. and is meth a big problem here like it is in other areas, it seems like you don't here very much about in the paper or news locally. just wonderin. thanks
Monday, July 20, 2009 5:07:00 PM

Interestingly enough "pills" are big everywhere. Generally people are hooked on Oxycontin and oxicodone which is available for about $1.00 a mg on the street. So one 20 g pill costs $20.00 which is why a lot of people sell their pills for money and then report the pills stolen so they can get another prescription to support their own habit. If someone can't afford the pills or can't scam them, they usually turn to heroine which is much cheaper although harder to locate. Crack cocaine is also big on the hit parade in the WicBury and typically people are either addicted to heroine, crack, pills or all three. But, pills are a problem with, for whatever reason, mainly a white segment of society, all age ranges, although other races of course use them too. People can also cook pills down and shoot them intravenously. Methamphetamine for whatever reason is not that big on the Eastern Shore.... yet. However cops have been finding more and more including meth paraphernalia.

Answer to search and seizure question....

The search and seizure question was a somewhat complex one however our answer is the following. The initial stop is fine because RAS exists to stop the vehicle due to the recent burglaries in the area and the description put out over the air of the suspicious vehicle. However when the back up officer entered the vehicle to determine the serial number of the vehicle this was an unlawful seizure. Therefore the subsequent arrest of the suspects and the seizure of the marijuana is fruit of the poisonous tree and supressable. Further the search warrants obtained, despite the fact that the officer is acting on good faith, can also be suppressed because again they were the ultimate result of an unlawful search of the vehicle and therefore the drugs and bodies discovered are also supressable. All due to an unlawful search and seizure of the vehicle and resulting television serial number.

D.C. Checkpoints Unconstitutional

By Brett Zongker Associated Press

WASHINGTON — A federal appeals court said Friday that police checkpoints in a crime-plagued Washington neighborhood are unconstitutional and ordered a lower court to reconsider its refusal to block the program.

In June 2008, District of Columbia police began stopping cars in the Trinidad neighborhood, refusing to let in motorists who did not prove they lived in the area or reveal their destinations. The Partnership for Civil Justice sued on behalf of three drivers. "It is apparent that appellants' constitutional rights are violated," Chief Judge David B. Sentelle of the U.S. Court of Appeals for the D.C. Circuit wrote in the ruling Friday, citing several Supreme Court cases as precedent.

The ruling sends the case back to the U.S. District Court where a judge had refused to halt the checkpoints program.

The Metropolitan Police Department created the checkpoints in response to a string of shootings where suspected gang members drove into the neighborhood, opened fire and quickly left. The checkpoints were only used twice in 2008, city officials said. D.C. Attorney General Peter Nickles said the appeals court decision effectively halts the checkpoints for now. He said city officials will consider whether to ask the Supreme Court to consider the case, change the policy or argue for the checkpoints before the lower court. Police Chief Cathy Lanier had said she would continue using the checkpoints to deter crime until a court told her not to. On Friday, she said the department had attempted to abide by the Constitution.

"We certainly did not attempt to circumvent the Fourth Amendment in implementing the Neighborhood Safety Zones," Lanier said in a statement. "We all did what was appropriate and what we believed to be lawful to save lives." The Partnership for Civil Justice called the court's decision a "major victory" in protecting fundamental constitutional rights. D.C. residents "have the right to travel freely on public streets without being subjected to police seizure and interrogation" in the absence of any allegation, said Mara Verheyden-Hilliard, an attorney with the group.

The lawsuit was filed on behalf of three of the 48 drivers who were stopped by police and not allowed to pass through the neighborhood because they refused to provide certain information. Those named as appellants in the case were Caneisha Mills, Linda Leaks and Sarah Sloan.
Courts have differed on the legality of checkpoints. In 1996, a federal appeals court said it was reasonable for New York City police to stop motorists at random hours in the Bronx to curtail drive-by shootings, drugs and robberies.

But the Supreme Court in 2000 struck down roadblocks in Indianapolis, saying general crime control is not enough of a reason to stop motorists. The D.C. appeals court found the Indianapolis case prevailed over other Supreme Court rulings on checkpoints.
It can't be denied "that citizens have a right to drive upon the public streets of the District of Columbia or any other city absent a constitutionally sound reason for limiting their access," Sentelle wrote for the three-judge panel.

Police officers who implemented the program have long considered it unconstitutional and damaging to their relationships with residents, said Kristopher Baumann, chairman of the D.C. police union.

"There is a line as police officers that we do not cross and this is one of them," Baumann said. "The officers - not the politicians, not the management - did not like this program because it was unconstitutional, and it hurt our relationship with people."

How would you handle the following situation?

It is 0200 hours and you are on routine patrol of your beat. You get a BOLO for a silver SUV bearing Maryland tags ABC123 as a suspicious vehicle. There have been several burglaries in the area. Shortly thereafter, you see the vehicle pass a nearby roadway. You call the information out to dispatch and request another unit. Another unit arrives and you stop the vehicle. While approaching the vehicle you observe the vehicle is occupied by a white male and a black male. You stop the suspect vehicle an make contact with the driver. In plain view you notice a television in the back seat. The driver claims he bought the television that morning and is moving it to his girlfriends house. Your back up officer opens he door of the rear of the vehicle and looks at the television and observes that the serial number matches that of a television involved in a burglary from the previous day. He places both persons under arrest and performs a search of the vehicle and their persons. He discoverers a small amount of marijuana on the passenger. He finds a key to a locker that he is tagged with "USPS Salisbury". He gets a search warrant and searches the locker where he finds a pound of cocaine. The registered owner of the mailbox has an address of 123 Main Street. He gets a search warrant for the address and upon searching it finds two bodies and sixteen pounds of cocaine.

Is this a good case? Why or why not?

What gives us the right?!

Article the third [Amendment I]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.