Everyone's Place for Police Related Case Law

"Down these mean streets a man must go who is not himself mean, and who is neither tarnished nor afraid." Raymond Chandler

 

Case Law 4 Cops contains information on hundreds of court cases. These cases are important to officers and citizens alike. The cases cover what officers can and cannot do in several areas of law. Follow the links below.

Article: Traffic Enforcement Cameras Come to Oklahoma

In 2006 the legislature passed a law creating the Online Verification System for Motor Vehicle Insurance (S.S. 47-7-600.2).The law was created because of a real and pervasive problem of uninsured motorists in the state. The estimates are that 25% of all vehicles on the road in Oklahoma do not have liability insurance. This level is unacceptable and must be reduced. The key measure taken by the State of Oklahoma is to install over 200 cameras around the state. The purpose of the cameras is to read the vehicle tags of Oklahomans, and then use the new electronic insurance verification system to check if the vehicle has insurance. If the system shows that the vehicle does not have insurance, the owner is mailed an expensive ticket. Last year the State of Oklahoma required that all vehicles get newly designed vehicle tags when they register a vehicle or when they pay their annual taxes. The new tags have a barcode that is read by the cameras. What the State of Oklahoma is trying to achieve is commendable. Something does need to be done. Like many laws that politicians pass, however, they do not consider how the law is practically applied. The citizens also rarely analysis the law and how it affects them in regards to their Constitutional rights.

  I strongly support the enforcement of the insurance laws against operators and owners of vehicles driven on our roads. Uninsured motorists affect the poor and wealthy alike. The poor, however, are more likely to have just liability insurance on their vehicles. If they are hit by an uninsured motorist, they will be stuck with the repair bill or the total loss of a vehicle that they could not afford to lose. The laws should be crafted to protect the citizens from these losses, but they should also be balanced in regards to the manner of intrusion into their rights.

  Many cities and states across the country have implemented camera systems to enforce traffic laws like speeding, running red lights, and now insurance laws. I don't know how most police feel about these systems. Most times Legislatures and City Councils want these systems and the police administrators give their obligatory support for them, but I wonder if the rank and file officers really are that supportive of them.

  I personally have several concerns about having an automated enforcement system of any type. The first and foremost concern is the shear impersonal, unmitigating manner of enforcement conducted by a machine. When a person drives by a camera and the system shows that there is no insurance on the vehicle, the owner is mailed a ticket. The person is not contacted contemporaneous to the offense by an officer. The person is not allowed to give an explanation which could result in no enforcement, like purchasing insurance that day before the stop occurred. The officer has no opportunity to show leniency by giving a verbal or written warning because of the unusual or emergency situation the driver may be in. The vehicle may have been just stolen. All these things and more are completely disregarded with this kind of system. The likelihood that an innocent person is wrongfully charged will be higher. This leads to my next concern.

  Every citizen of this country is innocent until proven guilty. It is completely the responsibility of the prosecution to prove guilt. The citizen does not have to prove innocence. The first step in a prosecution for not having insurance should begin with the reasoned analysis of the officer on the scene of a traffic stop to determine probable cause that the person did not have insurance before the person is criminally charged. It is impossible for a camera and computer system to exercise due diligence in considering the totality of the circumstances before criminally charging the person and mailing that ticket. As the law is currently enforced, a person has to show an officer an insurance verification form as proof of insurance. The law requires that the person must carry this form in the vehicle to show the officer. If the person fails to do so, when the person gets the ticket, he then will have to obtain the form and drive to the court clerk's office and get the ticket dismissed. All these extra steps are reasonable because the person did not have the form in the vehicle as required to show the officer. The person at least had the opportunity to give facts to the officer that could prevent being charged. The automated system does not give the driver the opportunity to show the form. What if the person bought the vehicle from someone that day and the new owner had insurance where the previous one did not? The previous owner would get a ticket. What if the data was entered into the system incorrectly and the owner did have insurance? What if a criminal swapped tags with an uninsured inoperable vehicle? All these scenarios would lead to an innocent person being falsely charged. There were no steps these owners could have foreseen and taken that would have prevented the system from automatically criminally charging them before the ticket was mailed. These innocent people will now be forced to take their time and possibly have to leave work to obtain the necessary documents to show the court clerk to prevent them from being fined or arrested. No innocent person should have to be forced by the decision of machine after being falsely criminally charged to have to take time and effort to prove innocence to avert being prosecuted. When a city or State government delegates its responsibility to enforce its laws to a computer, it is deliberately mitigating its accountability to its citizens and has to be doing so for other reasons than law enforcement. This brings me to my next concerns.

 

  The Verification System for Motor Vehicle Insurance law went into effect on November 1, 2010. Is the true purpose of the law to get the vehicle owners in Oklahoma to obtain liability insurance, or is its real purpose to fill the state coffers with much needed money? I would hope that our state representatives were being thoughtful of the citizens of Oklahoma and created this law to protect them from uninsured motorists. The manner in which this law was crafted and being implemented seems to be by design to take advantage of the high numbers of uninsured motorists in the state to quickly and cheaply detect, fine, and collect millions of dollars for a cash strapped state. To support this statement, I would like to point out that the verification system is interlinked to the state vehicle registration system. When the vehicle tag is run through the system, the readout will display the vehicle registration information and the insurance information. The computer system will be allowed to use this data to run every vehicle that passes a camera and determine there is no current insurance listed in the record, then mail a citation. The computer will be able to use the system to directly enforce the insurance law. The statute, however, is worded in such a manner as to prevent a police officer on patrol from doing the same thing. Police officers can only use the system to verify insurance after they make a traffic stop or during an accident investigation. They cannot use the system to run a tag during routine patrol and utilize the information to justify a traffic stop for no insurance (S.S. 47-7-600.2.A.10).A machine can use the information to directly enforce the law, but police cannot.

  My final concern is the potential under the law for a private company to operate the system on behalf of the state. There have been stories all over the country of a high percentage of the collected funds going to these companies, not the states. Private companies are no substitute for highly trained and dedicated police officers. These companies should have no ability to control any part of law enforcement duties. We, police officers care about our fellow citizens in the community. Need I say what a private company cares about? Employees in a private company are one step removed from oversight from the state. The employees, therefore, may not be as well vetted by security. They could be more likely to abuse their access to the data to the harm of the citizens of Oklahoma. It will also be harder to access and audit the records of a private company over the records owned by the state.

  We would never conceive of letting a computer be a judge. So, why on earth would we let a computer be a cop? Apparently it is because they can write tickets faster. Computers are great tools. I even have a computer degree, so I am not generally adverse to their use. With that said though, I hope I will be retired long before I am replaced by one.

On 11-1-18, the State of Oklahoma launched the Uninsured Vehicle Enforcement Diversion Program. The state is charging each vehicle owner caught by the cameras a $174 fee. $80 of this fee will be paid to the private company running the system. Police still cannot run a tag to check for insurance and make a stop for lack of insurance.

 

New Cases

Search incident to Arrest-

US v. Brixen, No. 18-1636 (7th Cir. 2018)-Brixen made arrangements through Snapchat to meet with a 14yr old girl to shop for underwear and bras. Brixen was actually chatting with a police officer. They agreed to meet. When Brixen showed up, he was arrested. He denied being at the location to meet anyone. The officers searched Brixen incident to arrest and removed his cell phone from his pocket. The officer sent a chat to Brixen's phone to confirm to Brixen he was chatting with a police officer. The phone screen showed the chat notification. After being shown this, Brixen admitted being there to meet with a 14 yrs old girl to show for undergarments. The officer later obtained a search warrant for the phone and found child pornography on it. Brixen tried to have the phone evidence suppressed. He claimed that looking at the phone screen of the chat notification was an unlawful warrantless search. He intended to keep this information private by leaving his phone in his pocket. The police, however, removed the phone allowing them to see the chat notification. The court held that Brixen lost his right to privacy when he was arrested. The officers could search and remove the phone incident to arrest. No further manipulation was needed by the police to see the chat notification. Therefore, Brixen had no reasonable expectation of privacy. The evidence was not suppressed.

K-9-

Colorado v. McKnight, 16CA0050 (Colorado Court of Appeals 2017)-When a dog is trained to only detect contraband, which is unlawful to possess, a sniff of a car is not a search. When a dog is trained to detect both a legal substance under Colorado law (marijuana) and contraband, the sniff becomes a search because a person has a legitimate expectation of privacy in the possession of marijuana. The Court held that reasonable suspicion of criminal activity is required before a dog trained to detect marijuana can be used to sniff a vehicle.

Homes-

US v. Shrum, No. 17-3059 (10th Cir. 2018)-Shrum's common-law wife died unexpectedly. She had a seizure and was taken to the hospital where she died. The police arrived and secured the residence. They did not allow Shrum to enter the house. After approx. 3 hours, the police obtained a consent to search from Shrum to enter the house to obtain the wife's medication in anticipation of an autopsy. The officer took this opportunity to also take over 50 pictures while inside. The officer saw in plain sight in a closet some ammunition. After the officer returned to the station, he checked Shrum and found that he was a convicted felon. The officer contacted a federal agent who used the information to obtain a search warrant. Shrum still had not been allowed in the home when the search warrant was executed. Firearms and methamphetamine were found in the home. Shrum was arrested. Shrum tried to get the evidence suppressed in the lower court, but was unsuccessful. The case was appealed to the 10th Circuit Court. The Court held that there was no probable cause to seize Shrum's house. There is also no "unexplained death scene exception" to the Fourth Amendment. The police had no information that Shrum had evidence of a crime in his home. The actions of the police were a fishing expedition with no facts to support their actions in seizing Shrum's home. The subsequent discovery of the evicence, although by consent, is tainted by the illegal seizure of the home from the beginning. The evidence was suppressed.

Exigent Circumstances-

Montanez v. Carvajal, No. 16-17639 (11 Cir. 2018)-Officers were investigating a possible residential burgarly in progress. Two subjects were detained. The officers made a quick 10 second entry into the residence. They then searched and arrested the subjects. When additional officers arrived, they entered and conducted a sweep of the residence. During the sweep, marijuana and paraphernalia were found. The items were left in the residence. Officers re-entered the residence 4 more times in regards to the marijuana before obtaining a search warrant. A suspected residential burglary presents an "exigent circumstance" justifying a warrantless entry of the residence to search, justifying the second search. The Court further held that once a person's right to privacy is invaded legally by an officer, the person has lost his reasonable expectation of privacy to the extent of the invasion. The additional warrantless entries into the residence by additional investigators does not offend the Fourth Amendment.

Exigent Circumstances-

Crocker v. Beatty, No. 17-13526 (11th Cir. 2018)-Crocker used his iPhone to photograph and video a vehicle accident. a deputy seized Crocker's phone. Crocker sued. The Court held that the seizure constituted a Fourth Amendment violation. It also held that the deputy was not entitled to qualified immunity. The deputy argued that the destruction of the evidence was imminent because the nature of cell phones make them easy to destroy or hide. The Court held that this argument was not sufficient to establish an exigent circumstance. The Court has made similar rulings and Crocker's rights were clearly established at the time.

Use of Force-

Church v. Anderson, No. 17-2077 (8th Cir. 2018)-Ofc Anderson contacted Church in his vehicle early in the morning. The officer detected an odor of alcohol and burnt marijuana. The officer escorted Church to his patrol car. Church, who out weighs Ofc Anderson by 80 lbs, punched the officer in the head. Church continued to pummel him. Ofc Anderson was lightheaded and exhausted. He felt Church pulling on his gunbelt. The officer warned Church that he would shoot if Church did not stop hitting him. He did not. Ofc Anderson shot Church in the abdomen. Church approached the officer again. He fired two more times. Church lived and was found guilt by the jury for assault on a police officer. Church sued Ofc Anderson. The district court granted Ofc Anderson qualified immunity. Church appealed. Church claimed that the court should presume that Ofc Anderson used excessive force because he was issued audio/video recording equipment and did not use it. The court would not even consider this argument. Church further claimed that he was unarmed and the officer did not use a less violent means to subdue him. Finally, the officer did not give him a second warning after the first shot. The Court held that Church posed an immediate threat to Ofc Anderson's safety and was actively resisting arrest. Church out weighed Ofc Anderson and Ofc Anderson feared that he would lose consciousness and Church would use his gun to kill him. As to the officer's failure to use alternate means to subdue Church, the court said an officer need not "pursue the most prudent course of conduct as judged by 20/20 hindsight vision." Because deadly force was justified, Ofc Anderson did not need to give a second warning before shooting. Ofc Anderson's actions were objectively reasonable and is entitled to qualified immunity.