Recently, hidden camera video of a pot shop raid in Santa Ana, California made the national news because it showed the police doing and saying bad things. One thing that did not get criticized was the poor quality of the announcement the police made before breaking down the doors (on external door and one internal door). And now, a different pre-dor-bust announcement case from Hayward , California . . .
Case: Chavez v. City of Hayward, Dist. Court, ND California 2015
What happened: Fact dispute over whether police made decent announcement before busting the door in:
According to Troche, after listening on the landing outside the apartment for at least ten seconds, Troche instructed one of the officers to radio to their sergeants or supervisors that they were going to do a “knock and notice” before kicking in the door. (Troche Dep. 65-67.) Troche knocked on the door and announced, “Hayward Police.” He states that after the officers waited 10-15 seconds, he kicked the door in, simultaneously pulling out his firearm. By contrast, Plaintiff testified that he did not hear a knock on the door, but instead heard “Hayward PD” before the door was kicked in a “split second” later. (Chavez Dep. 156.) Apfeltzweig testified that she and Plaintiff were moving towards the front door to open it for the police but only got a few steps before the officers were inside, and that the police came in “one second” after yelling “Hayward PD.” (Apfeltzweig Dep. 114, 117-18, 120.)
Comment: Reading the whole opinion in the Chavez case, it is pretty easy to see who is telling the truth there.
Justice Alito points out that it is not clear pre-trial detainees have 4A rights in this dissent:
I would dismiss this case as improvidently granted. Before deciding what a pretrial detainee must show in order to prevail on a due process excessive force claim, we should decide whether a pretrial detainee can bring a Fourth Amendment claim based on the use of excessive force by a detention facility employee. We have not yet decided that question. See Graham v. Connor, 490 U. S. 386, 395, n. 10 (1989). If a pretrial detainee can bring such a claim, we need not and should not rely on substantive due process. See Albright v. Oliver, 510 U. S. 266, 273 (1994) (plurality opinion); Graham, 490 U. S., at 395. It is settled that the test for an unreasonable seizure under the Fourth Amendment is objective, see id., at 397, so if a pretrial detainee can bring such a claim, it apparently would be indistinguishable from the substantive due process claim that the Court discusses.
I would not decide the due process issue presented in this case until the availability of a Fourth Amendment claim is settled, and I would therefore dismiss this case as improvidently granted.
Case: James v. City of Boise, Idaho: Supreme Court 2015
What happened: A dental appliance maker (the plaintiff in this civil suit) got kind of drunk when she was working on a denture and accidentally locked herself out of her sublet workspace. She broke a window to get back to her keys and workspace and resumed her work on the denture and on her 24 ounce can of Steel reserve malt liquor. As she was re-entering, a concerned neighbor spoke with her briefly and then called police. The police came out and saw her working on the denture and drinking the malt liquor through a window. When she went to the bathroom, the police entered the building with a K-9 unit. After the dental appliance maker did not respond to the police warnings that they would loose a police dog and it would bite, the police loosed the k-9 and it found the dental appliance maker on the toilet and bit her. The dental appliance maker sued.
Opinion: Whether or not loosing the k-9 was excessive force, QI protects the police in this civil suit.
Comment: This is not a particularly interesting case from a legal standpoint (although the concurrence is kind of interesting), but I recommend reading it for the off-beat facts. Seems like something out of a movie.
Case: Merricks v. Adkisson, Court of Appeals, 11th Circuit 2015 (Charles Ashley Royal, sitting by designation, writing for unanimous three judge panel)
On August 11, 2008, Cpl. Jeffrey Adkisson was employed by the City of Clearwater Police Department and was acting within his discretionary authority. While on duty in a marked patrol car, he saw Merricks’s black Dodge Avenger and suspected that her window tint violated Florida law. Based on suspicion of a window tint violation, he pursued her, stopped her, and planned to check her window tint. As he approached Merricks’s car, however, he smelled the odor of burnt marijuana.
According to Merricks, Adkisson asked to see her license and asked her to “wind” down the other window, so he could see inside her car. While looking for her license, she asked Adkisson why he had stopped her, and he said that her window tint was too dark. She gave him her license and told him that her car was new, that the Dodge dealer had tinted her windows, and that she was sure that the tint was legal.
Because he smelled burnt marijuana, Adkisson asked Merricks if he could search her car, and she said no. After she said no, he asked her if she had been smoking, and she said no. He then asked her if someone else had been in her car who had been smoking. Once again, she said no. She understood that smoking meant smoking marijuana.
Adkisson then stuck his hand through the open window to unlock the car door. He told her that he was going to search her car. The motor was still running, and she did not turn it off, so he reached in to pull the keys out of the ignition. She resisted. She held onto the keys and would not let him take them or turn off the car. Again, she said that he could not search her car. He asked her what she was going to do to stop him. Again, she told him that he could not search her car. She told him three times that he could not search her car.
During this scuffle over the keys and Adkisson’s efforts to search the car, he tried to get Merricks out of the driver’s seat. He could not get the keys to turn off the car because she was holding onto them, so he took her by the arm and jerked her hard to remove her from the seat. However, he could no remove her because she had on her seat belt. Then, while holding her by her wrist with one hand, he unbuckled the seat belt with his other hand and jerked her out of the car. He again told her that he was going to search her car.
After she came out of the car, Merricks asked Adkisson if she could sit on the curb. He said no. Then she asked if she could sit on the hood of her car. Again, he said no and told her that he did not want her to run off. He put her in the back seat of his patrol car while another officer searched her Dodge. He never handcuffed her.
During the search, Adkisson stood in the doorway of the patrol car to keep her from leaving. While standing there, he told her to “give it up.” But she said that she did not know what he was talking about. He told her to tell him where the drugs were because they were going to find them anyway. But, again, she said that she did not know what he was talking about and denied having any drugs.
The search did not take long because her car was very clean. After the other officer found nothing in the Dodge Avenger, a female officer came to the scene and searched Merricks’s person but also found no drugs. Adkisson then released her, and she drove off. He did not give her a traffic citation.
Finally, and as background information, the stop occurred in a violent, high-crime, and high-drug neighborhood. A crowd gathered during the search. And, as a result of Adkisson’s efforts to get Merricks out of the car, she allegedly suffered a torn rotator cuff and had it surgically repaired.
Decision: “Because Defendant Adkisson is entitled to qualified immunity on Plaintiff Merricks’s Fourth Amendment excessive force claim, we REVERSE the district court’s denial of summary judgment and REMAND for further proceedings.”
Criticism: There are several aspects of this case worthy of critical discussion, such as the assumption that apparently legal window tint is reasonable suspicion for a stop, or the assumption that a policeman’s claim that he smells marijuana raises an irrebuttable presumption that there is sufficient probable cause for a vehicle search. I want to focus on a different criticism — one which involves the driver’s refusal to consent to a search and what happened immediately after the driver refused to consent to the search.
First, with respect to the driver’s refusal to consent to the search, Judge Royal mischaracterizes this part of the citizen/police encounter as follows: “[A]lthough Merricks was not resisting arrest, she was resisting the search. Three times she told the officer he could not search her car.” However, refusal to consent to a search is not the same thing as resisting a search. Refusing to consent to a search is important because if a driver consents to a search then that driver waives any 4A rights to complain about the unconstitutionality of the search. Judge Royal’s opinion sets up a catch-22 where the driver effectively has a choice between consenting to a search, or being found guilty of “resisting” law enforcement. That is not the law. Sorry, Judge Royal.
Second, with respect to what happened after the driver refused consent, it appears from the opinion that Cpl. Jeffrey Adkisson immediately reached into the vehicle to take the keys. This is not reasonable. The reasonable thing to do is to issue the driver a verbal command to shut the vehicle off and to then exit the vehicle. The next reasonable thing to do is to give the driver a reasonable chance to comply with these verbal commands. What is not reasonable is for the policeman to skip these steps and, instead, as apparently happened here, to stick his body into a running vehicle and start fighting with the startled driver. Not only is it unreasonable to the citizen to have a policeman suddenly jump in the vehicle, but it is stupid from the standpoint of officer safety, which is supposedly important. Cpl. Adkinsson is incredibly lucky that the plaintiff did not want to do him harm because a determined criminal could have smashed his noggin and driven off in the Avenger with his unconscious body. But, getting back to the citizen’s rights, it was not reasonable for the policeman to go straight from a request for consent to search into a use of force. If Cpl. Adkinsson had ordered the driver out of the vehicle and she refused, then, and only then, should use of force have been an option (although diving into the vehicle still probably wouldn’t have been the preferred force option).
One last criticism: “[A]s a result of Adkisson’s efforts to get Merricks out of the car, she allegedly suffered a torn rotator cuff and had it surgically repaired.” (emphasis added) The opinion states as fact that Cpl. Adkinsson smelled marijuana, but, then, when referring to the rotator cuff injury and the surgery to repair the same, these are somehow merely allegations!?!? I mean, if you can’t be fair, at least try to hide that a bit better.