California Criminal Lawyer Blog

Okay, this goes into the OMG category. A handcuffed arrestee was about to be tasered by a cop, and the cop pulled out the wrong weapon, and shot him dead instead! I mean, why is a cop tasering a handcuffed suspect? If you have to quiet a handcuffed suspect - and that's really, really debatable folks - why not pepper spray him? But tasering him? And shooting him dead instead. I say "Hang 'em High."

DUMB COP ACCIDENTALLY SHOOTS CUFFED SUSPECT

The accidental shooting of a handcuffed suspect is subject to a reasonableness inquiry. A case "remarkably similar on its facts to that faced by the Fourth Circuit in Henry v. Purnell, 501 F.3d 374 (4th Cir. 2007)," involved a handcuffed arrestee who the defendant officer was attempting to Taser and shot with a Glock instead.

Here, however, the arrestee died. The inquiry is reasonableness, but that question was not decided by the district court, so the case is remanded. Torres v. City of Madera, 2008 U.S. App. LEXIS 9648 (9th Cir. May 5, 2008):

Henry concluded, and we agree, that five factors were relevant to the reasonableness determination: (1) the nature of the training the officer had received to prevent incidents like this from happening; (2) whether the officer acted in accordance with that training; (3) whether following that training would have alerted the officer that he was holding a handgun; (4) whether the defendant's conduct heightened the officer's sense of danger; and (5) whether the defendant's conduct caused the officer to act with undue haste and inconsistently with that training. Henry, 501 F.3d at 383.

While these factors are relevant to the determination of whether Officer Noriega acted reasonably, we also stress that "the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments." Graham, 490 U.S. at 396-97. Since the parties did not brief the issue of whether Officer Noriega's mistake was a reasonable one, the factual record is insufficiently developed for this court to make this determination, and we remand to the district court to determine in the first instance whether Noriega's conduct was unreasonable under Graham, 490 U.S. at 396-97, and to otherwise proceed with the matter.

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Defendant's post-plea involvement in jail violence could be considered failure to accept responsibility and form the basis for the court to deny that downward adjustment.

United States v. Mara (9th Cir. 4/28/08, 07-30102) 08 C.D.O.S. 4958

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The government used a Confidential Informant to complete multiple sales of crack. The defendant faced three counts, but plead to only one.

The Presentence Report used as relevant conduct all the sales, and found that the defendant was a career offender. This bothered the court, who expressed concern about relevant conduct, and thought that the career offender determination was pumped up.

The government objected, and the court groused that "...You know what you can do with that. Take it to the appellate court...." Well, the government did.

The 9th Circuit agreed that the court, under the guidelines, had to consider the relevant conduct, and that Gall requires an accurate guideline calculation. The 9th Circuit (nudge, nudge) indicated (wink, wink) that the district court under Gall/Kimbrough could use all the factors and could be cognizant of the crack/powder disparity.

U.S. v. Grissom, No. 06-10688 (4-15-08).

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Sixth Amendment right to an "informed jury" guarantees right to have jury told of mandatory minimums

In a 400 page opinion-law review article, the venerable Judge Weinstein of the E.D. N.Y., surveying the history and law of juries, jury trials, and the Sixth Amendment, holds that the jury should have been told of the mandatory minimums in the case under the Sixth Amendment. United States v. Polizzi, 2008 U.S. Dist. LEXIS 26900 (E.D. N.Y. April 1, 2008) (local page cites left in to help you find this part if you go to the case; this is just part V of the opinion; the wonderful discussion of the history of sentencing and informed juries is in part IV):

V. Defendant's Motion to Inform the Jury of Mandatory Minimum Should Have Been Granted

As noted in Part II.B.4.b, supra, defendant repeatedly moved to have the jury informed of something it would not be expected to, and did not, know -- the mandatory five-year minimum prison [*368] sentence required were it to find the defendant guilty of receiving as charged. It was demonstrated in Part IV, supra, that the court's failure constituted a denial of defendant's Sixth Amendment jury rights. Such an instruction is different from one inviting the jury to nullify. It accords fully with Sixth Amendment rights to a jury which understands the effects and implications of its decision. See Part IV.A, supra.

That juries do have the power to refuse to convict or to convict of a lesser offense has been fully established. See Part IV, supra; see, e.g., Neder v. United States, 527 U.S. 1, 33 (1999) (Scalia, J., concurring in part and dissenting in part) ("A court cannot, no matter how clear the defendant's culpability, direct a guilty verdict."); United States v. Pabon-Cruz, 391 F.3d 86, 95 (2d Cir. 2004) ("The power of juries to 'nullify' or exercise a power of lenity is just that--a power" (quoting United States v. Thomas, 116 F.3d 606, 615 (2d Cir. 1997))); Thomas, 116 F.3d at 615 (characterizing right of juries to deliver unreviewable, general verdicts -- thereby allowing jury nullification to occur, albeit infrequently -- as a form of "jury lenity"). Where nullification [*369] is suspected, courts may not "intrude upon 'the sanctity of the jury's deliberations' because of their 'strong policy against probing into [a jury verdict's] logic or reasoning.'" United States v. Mahaffy, 499 F. Supp. 2d 291, 296 (E.D.N.Y. 2007) (quoting United States v. Zane, 495 F.2d 683, 690 (2d Cir. 1974)).

Continue reading "DEFENDANT HAS 6TH AMENDMENT RIGHT TO INFORM JURY OF MINIMUM MANDATORY SENTENCE" »

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In an important en banc decision, the 9th (Rymer) considers whether there should be a presumption of reasonableness for a guidelines sentence in the wake of Rita, Gall, and Kimbrough.

Considering the sentencing framework after those cases, the advisory nature of the Guidelines, and the fact that no. 3553(e) sentencing factor outweighs any other, the 9th declines to embrace a presumption.

The 9th recognizes that a Guideline sentence will usually be reasonable, but that stating there is a presumption imports "baggage" of an evidentiary nature when, on appeal, and in light of the nonbinding nature of the Guidelines, serves no purpose.

The opinion lays out the steps a court should follow, emphasizing the need for correct procedure to be followed by substantive review. The standard is abuse of discretion as to reasonableness.

The concurrences are interesting. Kozinski states that the majority adopts a presumption, but is just afraid to call it that. Silverman chides the majority for not adopting a presumption of reasonableness, which he reads the Supremes as permitting. As for the cases, the 9th affirms the sentences on both as reasonable.

Still, the opinion is a clear indiction of the tremendous discretion the sentencing court now enjoys. Carty will certainly make the "most-cited" list for the 9th.

U.S. v. Carty , No. 05-10200 (3-24-08) (en banc).

Continue reading "NINTH CIRCUIT DECLINES TO ADOPT "REASONABLENESS" STANDARD FOR GUIDELINES SENTENCES" »

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There are a couple of major cert. grants from the U.S. Supremes:

Can the DA use a chemist's report that a substance was cocaine in lieu of actual live testimony by the chemist, or does this violate Crawford (541 U.S. 36)?

Melendez-Diaz v. Massachusetts; cert. granted, 2008 DJ DAR 3661; DJ,
3/18/08; US Supremes

Must the jury find the facts used to justify imposition of consecutive sentences, or does this violate Cunningham?

Oregon v. Ice; cert. granted, 2008 DJ DAR 3662; DJ, 3/18/08; U.S. Supremes

--

Continue reading "U.S. SUPREME COURT GRANTS CERTIORARI ON TWO MAJOR CASES" »

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The 9th Circuit (Reinhardt joined by Goodwin and Smith) considers a search of storage units where a defendant was living. The police followed suspects of meth production back to a storage unit where they knew the defendant was living. The unit was rented by another suspect.

The police knocked on the door, and the defendant greeted them with a metal pipe in hand. The police ordered him to drop the pipe, which he did, and the police supposedly saw a meth lab. The police then conducted a sweep.

The police then waited a couple hours, and did another search, supposedly with the consent of the renter of the storage unit (the other suspect). The 9th upheld the first search under the protective sweep exception, because the police did not know if the other suspect was hiding in the unit. Plain view, however, still requires a warrant, or other exception.

The 9th Circuit held that the search two hours later was not proper because the defendant was living at the unit, and had an interest that he shared with the renter. Under Randolph, the consent of the non-resident co-owner could not trump the objection of the resident /defendant. The 9th Circuit also stressed that there is no hierarchical standing recognized here. An owner, as opposed to resident, is not the same as a parent/child or military. This is an important vindication of Randolph.

U.S. v. Murphy, No. 06-30582 (2-20-08).

Continue reading "COPS CAN'T SEARCH CONTAINERS WITH CO-HABITANT'S CONSENT ONLY" »

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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BINGUE v. PRUNCHAK

In Onossian v. Block, we applied the Supreme Court's decision in County of Sacramento v. Lewis, 523 U.S. 833 (1998), and held that a police officer in a high-speed chase-whether he injures the fleeing suspect or a bystander-is entitled to qualified immunity unless his behavior "shocks the conscience" because it demonstrates an intent "to cause harm
unrelated to the legitimate object of arrest." 175 F.3d 1169, 1171 (9th Cir. 1999) (internal quotation marks omitted).

We were not called upon to consider whether the district court must apply this "intent to harm" standard to all high-speed chases, or only those chases that involve "emergencies" or "split-second decisions." Today we refine our Onossian analysis and hold, following the Eighth Circuit, that police officers involved in all high-speed chases are entitled to qualified immunity under 42 U.S.C. § 1983 unless the plaintiff can prove that the officer acted with a deliberate intent to harm. See Helseth v. Burch, 258 F.3d 867 (8th Cir. 2001) (en banc).

The officer involved in the high-speed chase in this case is entitled to summary judgment based on step one of the qualified immunity analysis as set forth in Saucier v. Katz, 533
U.S. 194 (2001). We thus reverse the judgment of the district court.

CONCLUSION

We conclude that high-speed police chases, by their very nature, do not give the officers involved adequate time to deliberate in either deciding to join the chase or how to drive while in pursuit of the fleeing suspect. We hold, therefore, that Lewis requires us to apply the "intent to harm" standard to all high-speed chases. Since Prunchak's actions do not meet this stringent standard, Bingue's claim fails under the first step of the Saucier analysis and Prunchak is entitled to dismissal. Consequently, we reverse the judgment of the district court and remand for an entry of judgment for Prunchak on the § 1983 claims.

REVERSED and REMANDED.

Continue reading "CALIFORNIA CIVIL RIGHTS LAW: COPS INVOLVED IN HIGH SPEED CHASES GET QUALIFIED IMMUNITY IN CIVIL RIGHTS CASES" »

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The defendant came in to be arrested and brought a backpack, and inside was a Blackberry, which the officers searched and seized the "contacts" list. The court required further briefing of the issue of access to the Blackberry. The USMJ denied the motion to suppress the contents of the Blackberry, but the USDJ wants further briefing. United States v. Carroll, 2008 U.S. Dist. LEXIS 7485 (February 1, 2008):

As Carroll and the Government identify, this and other courts have reached varying conclusions on whether searches of an arrestee's mobile phone is a lawful search incident to arrest, and if so, how far that lawful search may extend. Among the questions courts have considered are whether a mobile phone fits within the category of property intimately associated with an arrestee's person, United States v. Park, No. CR 05-375 SI, 2007 U.S. Dist. LEXIS 40596, 2007 WL 1521573, at *7-8 (N.D. Cal. May 23, 2007), how contemporaneous the search must be relative to the arrest, United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1277 (D. Kan. 2007), and whether the search is limited to a phone's dynamic memory. United States v. Zamora, No. 1:05-CR-250-WSD, 2006 U.S. Dist. LEXIS 8196, 2006 WL 418390, at *4-5 (N.D. Ga. Feb. 21, 2006).

The Court notes also that in this case, Carroll voluntarily surrendered himself for arrest and voluntarily brought his backpack, containing the Blackberry, to law enforcement offices at the time of his surrender. Unlike the situations considered in Zamora, Ortiz, and Park, Carroll had the opportunity to make a conscious choice about which of his effects were available to law enforcement at the time of his arrest. Neither Carroll nor the Government has developed this issue factually, nor has the issue been briefed. The Court will defer ruling on the motion to suppress the information resident in the Blackberry until an evidentiary hearing is conducted and the parties further brief this issue.

Comment: See the post here on search incident of an iPhone.

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Police officers involved in all high-speed chases are entitled to qualified immunity under 42 U.S.C. section 1983 unless the plaintiff can prove that the officer acted with a deliberate intent to harm.

Bingue v Prunchak, (U.S. 9th Cir., Jan. 15, 2008)

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The defendant's flight was precipitated by unlawful attempted arrest by law enforcement officers. As a result,seizure of defendant's abandoned property was properly suppressed
The defendant's flight from an unreasonable stop led to him abandoning drugs in flight. Oops. Here, the flight was not attenuated from the unlawful activity and the motion to suppress is granted.

The Court said:

"For the same reasons, I decline to adopt the government's argument that Defendant's flight was an intervening event that dissipated the taint of the initial unlawful search and seizure. It may well be that flight or resisting arrest constitutes an intervening cause in other circumstances but not under the facts of this case where there was never a break in the causal chain following the unlawful search and detention."

United States v. Harris, 2008 U.S. Dist. LEXIS 3846 (D. Colo. January 3, 2008):

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The Plaintiff's arrest was justified when she made a sarcastic comment about a bomb in her bag after she was bumped from a flight because of her late check-in when she was trying to retrieve her bags.

(Apparently plaintiff, a lawyer, did not respond well to stress. "The parties submitted expert psychiatric testimony explaining that plaintiff becomes sarcastic under stress.") She was strip searched at the jail when booked in.

Levin v. United Airlines, 2008 Cal. App. LEXIS 33 (2d Dist. January 10, 2008).*

Continue reading "LAWYER'S SARCASTIC COMMENT AT AIRPORT SECURITY ABOUT A BOMB IN A SUITCASE WAS PROBABLE CAUSE TO ARREST" »

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APPEALS - ISSUES NOT DECIDED IN FIRST APPEAL

United States v. Thornton (9th Cir. 1/10/08, 06-50597)

Appellant could raise issues in second appeal raised in first appeal but not decided because court reversed on Ameline grounds.

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Allegation of excessive force was enough to defeat governmental entities motion to dismiss, something that cannot be resolved at the pleading stage.

Garcia v. City of Merced, 2008 U.S. Dist. LEXIS 2135 (E.D. Cal. January 10, 2008).*

Continue reading "CALIFORNIA CIVIL RIGHTS NEWS: NINTH CIRCUIT SAYS ALLEGATIONS OF EXCESSIVE FORCE ARE ENOUGH TO DEFEAT GOVERNMENT'S MOTION TO DISMISS" »

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The exigency ceased to exist on defendant's arrest, despite the fact it was initiated by a 911 call. He also expressly refused consent.

United States v. Davis, 2008 U.S. Dist. LEXIS 1224 (N.D. Ill. January 8, 2008):

In this case, any emergency created by Cupito's 911 call ended when the deputies arrived on the scene to find her safely outside Davis's house. According to their testimony, the deputies made the decision to arrest Davis before they requested his identification.

If there was an exigency that Davis would harm the officers, retrieve a weapon, flee, or destroy evidence, it was created when the officers requested and consented to Davis reentering his home to retrieve his identification. This police manufactured exigency did not justify entry into the home.

Furthermore, even if there was an exigency that was not created by the deputies, the exigency would have ended after they handcuffed Davis and would not justify the deputies remaining in his home. See Tierney v. Davidson, 133 F.3d 189, 197-98 (2d Cir. 1998) ("As to what may be done by the police or other public authorities once they are inside the premises, this must be assessed upon a case-by-case basis, taking into account the type of emergency which appeared to be present ... The officer's post-entry conduct must be carefully limited to achieving the objective which justified the entry-the officer may do no more than is reasonably necessary to ascertain whether someone is in need of assistance and to provide that assistance.").

Because there was no exigency, the only other way the Government may justify the deputies' entry is by consent.

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A male officer's patdown of a woman using his cupped hand to touch her groin area, if true, stated a claim and overcame qualified immunity.

Cherney v. City of Burnsville, 2008 U.S. Dist. LEXIS 1345 (D. Minn. January 8, 2008).*

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A federal appeals court appears poised to rule that a computer has no special protection from searches at the border.

The San Francisco-based 9th U.S. Circuit Court of Appeals is expected to rule in the case of Michael T. Arnold, who is seeking to throw out evidence of child pornography found by a customs officer who clicked on folders called “Kodak pictures” and “Kodak memories,” Adam Liptak writes in his column for the New York Times.

Click HERE for article from ABA Journal.

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