Monday, January 21, 2008

Good Police Work: Reasonable Cause

State v. Wilkes, no. 07-0824 (Iowa Ct. App. Jan. 16, 2008)

Wilkes was parked in a quarry owned by the city of Atlantic, after dark. Police officers approached the vehicle and asked for identification. At some point the opdor of alcohol was noticed, Wilkes was asked to perform field sobriety tests, and he was arrested for OWI.

Wilkes moved to suppress the evidence before trial, arguing an illegal search, and the court agreed. This appeal followed.

Police said that they had no suspicion of wrongdoing when they approached the vehicle, and there was no evidence that the quarry was a high crime area. A lone vehicle in a parking lot with the engine running does not support a reasonable suspicion of criminal activity that would supply reasonable cause.

The court concluded that Wilkes was seized, because under the circumstances a reasonable person would not have felt he was free to leave. There was also no reasonable community caretaking argument to be made because there was no evidence that Wilkes needed assistance.

This case rings a bell for me because I lost one at a suppression hearing under rather similar circumstances. Officers set up across the street from a cooperative that had a lot of anhydrous ammonia nurse tanks. There'd been thefts taking place on a regular basis. So one night a guy pulls in there at 3:00 am and parks with his lights off for a little while, pulls out, and goes down the road. He gets stopped and he's drunk enough to be charged.

The argument centered on whether the co-op was a high crime area. It didn't matter to the court that I had the manager of the co-op testifying that thefts of ammonia were a daily occurence at that location and we were in the heyday of meth labs in the area. It was merely whether there was reasonable cause to stop the guy.

Reasonable cause in a vehicle stop is a judgment call most times. I would think that a stronger argument could be made by inquiring of the owner of the property whether it was open to the public or not, before the stop was made-that could certainly provide a higher quantum of reasonable cause.

On the other hand, in both cases a couple of drunks in motor vehicles were taken off the street and forced to sober up, as well as put to a great deal of inconvenience and saddled with an NCIC arrest recort that will be of use at some future time.

That's not a bad day's work when you think about it.

Saturday, January 12, 2008

The First Thing We Do, We Kill All The Witnesses Part II

Folks in our little corner of the world will remember when we blogged State v. Bentley, (9-28-07) in which we here discussed the confrontation clause jurisprudence of one Antonin Scalia who seems to be in love with the bare language of the clause and blind to the horrifying outcomes of their jurisprudence.

That story was the case of the Bentley brothers, both of whom serially sexually assaulted the same child here in Iowa. One Bentley murdered the child and was sent to prison for life. The other was tried for sexually abusing her. As it happened, the statement the child gave to child protection workers could not be used against Roger Bentley because....surprise surprise! his brother murdered her, and poor Roger couldn't confront the 'witness'. It was awfully convenient that she was murdered, but that didn't seem to cause our supremes any heartburn.

Mr. Miller says he's bringing the Bentley case to the Supremes in Washington.

And thereby hangs a tale.

There's a parallel case out of the great state of California, Giles v. California in which the same issue of Scalia's confrontation clause jurisprudence will be front and center.

Giles had had a problematic romantic relationship with the victim Brenda Avie. Giles killed her in his garage but he claimed he was defending himself. An officer testified at trial that he had gone to Avie's house to intervene in a fight the two were having a couple weeks prior to the murder and Avie said at the time that Giles had threatened to kill her. Giles now says the officer should not have testified to what Avie said to him because it was hearsay and that it violated Scalia's precious confrontation clause. He was convicted and his state appeal failed.

The State's position is that Giles killed Avie, and should therefore not profit from his criminal act. It doesn't take a lot of imagination to infer that Roger Bentley benefited equally, if by proxy.

But on a more fundamental level, it brings into question the entire nature of the confrontation clause and what the drafters of the Constitution meant by it, and whether that should continue to operate as a powerful incentive to do away with witnesses or to frighten and intimidate them into silence. It also brings into question the notion that hearsay evidence pertaining to the statements of victims who are then erased from this world, should always be inadmissible per se on the same basis. Scalia's on record here, as you recall we also blogged earlier in an article about the Supreme Court declaring war on victims of domestic violence.

As it stands in the present day, the confrontation clause/hearsay tag team serves primarily the interests of violent criminals. On that basis the entire structure needs a good solid kick to send it into the trashcan of history. This man's either to wake up to the world outside his chamber door, or get out of the way.

Friday, January 11, 2008

Is a Baggie Protruding From A Pocket Probable Cause To Conduct A Warrantless Search?

Apparently not. This case contrasts legal formalities against sharp police sense.

In State v. Sweeney, no. 07-0336 (Iowa Ct. App. Dec. 28, 2007), an Ames police officer stopped a van with inoperative headlights. The driver was arrested for driving while revoked, and the officer then turned her attention to the passenger, one Sweeney, to arrange for him to drive the van away. Sweeney was asked to get out of the vehicle so that a search incident to arrest could be conducted.
As Sweeney exited, two inches of a plastic baggie was seen protruding from his pocket but the contents were not visible. Sweeney denied knowledge of the baggie and its contents and tried to push it farther into his pocket. The officer directed him to remove his hand, and then retrieved the baggie which contained a small amount of marijuana. In Sweeney's other pocket was a bag containing a half pound brick of marijuana.
Sweeney moved to suppress the evidence as a product of an illegal search, and the district court agreed. This appeal followed.

The court found that the sole determinative question was whether the protrusion of the baggie from the pocket constituted evidence that would warrant a reasonable person to believe the baggie contained contraband.

The court held that a baggie in a pocket was not such an unusual thing that it could trigger exigent circumstances, in the absence of any other evidence that Sweeney was up to no good.

In fact, the officer testified that she did not have probable cause. Because there was no probable cause, there could be no exigent circumstances. Warrantless searches require both.

The takehome's clear. Get a warrant, find probable cause, or call the dog if you can. On the other hand, drugs were taken off the street, and a drug trader was identified for future reference and put to a great deal of trouble, which is no small satisfaction, when you come to think about it.

Car Chases From Down Under

The Sydney Morning Herald reminds us that people who run from the heat expose everyone to a certain amount of danger, as anyone who watches Cops or has ever been involved in such a thing knows.
In this case, a chase began when police attempted to detain a suspicious vehicle in a shopping center parking lot. The driver ran, the police gave chase, and the chase ended in a flood control channel. The absconders were slightly injured in the contretemps and were escorted to a nice government sponsored all expenses paid hotel and haberdashery after being patched up at the local hospital.
Stay safe out there. It's only January.
Photo credit Sydney Morning Herald.

Welcome Back From the Holidays

Folks, I've been away from my desk here high atop the Iowa Law Enforcement Reporter towers for a while, but I am intending to plow a straight furrow for a while.

It's been an interesting month, both personally and nationally, as well as in the law enforcement field so stay tuned as we will be gathering and posting items of interest and analysis the next few days.

The legal business, as you all know, goes on within us and without us (and without asking us if we have the time), and it has taken up more of my free time than I like. Someday, I will tell you all the complete story of what is going on right now, but it has to do with farmers, pigs and bills.

In addition, this is the two year anniversary, more or less, of the beginning of my blogging efforts and my skills as a writer of commentary have improved considerably. This venue also lets me open up a communication channel from the legal world to you all, which I think is a useful effort.