Monday, September 22, 2014

GUEST LEGAL OPINION: Daniele Watts And The Law On Detentions By Richard J. Chrystie


By Richard J. Chrystie, retired Los Angeles County deputy district attorney

There are three levels of police contact with suspects. The first is the “consensual encounter.” Police can simply approach a person and ask to speak to him, ask for ID, ask to search, etc. Usually the police have some reason for doing so, such as a tip, or someone just looks mildly suspicious, but so long as they do not demand that the person stop or cooperate, no reasonable suspicion or probable cause is necessary.

The second contact is the detention. A detention requires a showing of “reasonable suspicion” of criminal conduct, as described in the quotes below. The third level of police contact is the arrest, which requires a showing of probable cause to believe the person committed a crime. Probable cause is more than reasonable suspicion.

As a practical matter, even though officers may believe they have reasonable suspicion justifying a detention, they will first try to get the suspect to stop by way of a consensual encounter. “Excuse me sir, can I talk to you for a minute?’’ as opposed to, “Police officers. Stop.” By doing this, the question of whether officers had a sufficient reasonable suspicion for a detention will not be an issue in court.

DETENTIONS: the landmark case on detentions is the U.S. Supreme Court case of Terry v. Ohio (1968) 392 U.S. 1. In it the Court said that in order to justify the “intrusion” of seizing by “accosting and restraining” an individual on the street, i.e. a detention, the police must meet the following burden:

[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. 392 U.S. at p. 21.
The Supreme Court explained further that the legality of the seizure would be judged by an “objective standard,” to wit:
[I]t is imperative that those facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or search “warrant a man of reasonable caution in the belief” that the action taken was appropriate? 392 U.S. at pp. 21-22, cites omitted.
The Supreme Court also pointed out that society has a general interest in effective crime prevention and detection and that in recognition of this interest:
[A] police officer may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. 392 U.S. at p. 22,
California Law: since Terry v. Ohio is a statement of the United States Supreme Court on a Constitutional matter, the California Courts are required to follow it.

California Supreme Court cases expressing the same position as Terry v. Ohio on detentions include In re Tony C. (1978) 21 Cal.3d 888; and People v. Souza (1994) 9 Cal.4th 224. Tony C. articulated a two-part test for a detention: “(1) that some activity relating to crime has taken place, is occurring, or is about to occur, and (2) that the person to be detained is involved in that activity.” 21 Cal.3d at p. 893. And People v. Souza expressed the following principle regarding a detention:

A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific and articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity. 9 Cal.4th at p. 231, underline added.
People v. Souza also quoted from the United States Supreme Court case of Alabama v. White (1990) 496 U.S. 325, 330, to the effect that “reasonable suspicion” to justify a detention is much less than probable cause for an arrest, to wit:
“[R]easonable suspicion [is] a standard less demanding than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.” 9 Cal.4th a pp. 230-231.
Both In re Tony C. and People v. Souza also point out that the fact there might be an innocent explanation for what the suspect is doing does not negate otherwise lawful justification for a detention, as follows:
The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of [police] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal. In re Tony C., 21 Cal.3d at p. 894, and People v. Souza, 9 Cal.4th at p. 233, underline added.
The U.S. Supreme Court also made the following observation regarding the detention of a person who turns out to be innocent in the case of Illinois v. Wardlow (2000) 528 U.S. 119, 126.
Terry [v. Ohio] accepts the risk that officers may stop innocent people. Indeed, the Fourth Amendment accepts that risk in connection with more drastic police action; persons arrested and detained on probable cause to believe they have committed a crime may turn out to be innocent.
So the fact that Daniele Watts might be completely innocent -- as Charles Belk was two weeks ago -- does not mean that the police contact with them was wrong.

911 CALLS: The California Courts have recognized the importance of officers acting on 911 calls, even if anonymous. In the case of People v. Dolly (2007) 40 Cal.4th 458, the California Supreme Court pointed out it is understandable that concerned citizens reporting crimes may wish to remain anonymous. So simply because a caller will not leave a name is not reason enough to discount the accuracy of what he or she says. The court expressed it this way.

Residents of neighborhoods are in the best position to monitor activity on the streets. But residents, also fearful of the consequences, may not always wish to identify themselves and volunteer their names. According no weight as a matter of law to such anonymous tips would only discourage concerned residents from even calling the police, would burden the rights of ordinary citizens to live in their neighborhoods without fear and intimidation, and would render citizens helpless in their efforts to restore safety and sanctity to their homes and communities. 40 Cal.4th at p. 468.
Or putting it another way: “If law enforcement could not rely on information conveyed by anonymous 911 callers, their ability to respond effectively to emergency situations would be significantly curtailed.” 40 Cal.4th at p. 467.

DEMANDING IDENTIFICATION: Regarding officers asking for -- or demanding -- identification from a detained person, the United States Supreme Court addressed this in the case of Hiibel v. Sixth Judicial District of Nevada (2004) 159 L Ed 2d 292. That case approved the arrest of a lawfully detained person for obstructing and delaying a peace officer in the performance of is duties by refusing to produce identification. Here are some relevant quotes from that case.

Our decisions make clear that questions concerning a suspect’s identity are a routine and accepted part of many Terry [v. Ohio] stops. ... If there are articulable facts supporting a reasonable suspicion that a person has committed a criminal offense, that person may be stopped in order to identify him, to question him briefly, or to detain him briefly while attempting to obtain additional information. A brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information may be most reasonable in light of the facts known to the officer at the time. 159 L Ed 2d at pp. 302-303, internal cites and quotes omitted.
Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. 159 L Ed 2d at p. 303.
The principles of Terry permit a State to require a suspect to disclose his name in the course of a Terry stop. . . . The request for identity has an immediate relation to the purpose, rationale, and practical demands of a Terry stop. The threat of criminal sanction helps ensure that the request for identity does not become a legal nullity. 159 L Ed 2d at p. 304, underline added.
But the Court limited the right to arrest a detained person for failure to give his name to just those situations where knowing the person’s name would be relevant to the reason for the detention. In this regard, it said:
[A] Terry stop must be justified at its inception and reasonably related in scope to the circumstances which justified the initial stop. Under these principles, an officer may not arrest a suspect for failure to identify himself if the request for identification is not reasonably related to the circumstances justifying the stop. 159 L Ed 2d at p. 304, underline added.
So an officer can always ask a detained person for his or her identification. But the officer cannot demand identification on threat of arrest unless “the request for identification is reasonably related to the circumstances justifying the stop.” To me, this is a very vague standard, offers very little guidance to the police, and seems to contradict the earlier quotes about the importance of obtaining identification from a detained person. But it is the only standard the U.S. Supreme Court has provided, and there have been no later cases clarifying it.

So how does this all apply to the Daniele Watts situation? The officers were correct to approach Miss Watts and her boyfriend in response to the 911 call by concerned neighbors. They can tell them they got a 911 call and ask what is going on. Beyond that, I don’t know enough of the facts to determine if the demand for identification was justified under the Hiibel case. Small details can make a big difference.

My suspicion is that most officers are unaware of the Hiibel case and routinely ask identification from persons they detain and do so in a manner where the person feels compelled to produce it, i.e., “Let me see your identification.” People invariably comply so the issue of someone being arrested for refusing to produce identification just doesn’t come up. I’ve been watching for such cases ever since Hiibel was decided in 2004 and there have been no subsequent appellate cases on that issue.

In a way, it’s too bad that Miss Watts wasn’t arrested for failure to produce ID because it would have been a good test case, especially since so much of it was on tape. I can just imagine the nine Supreme Court justices listening to the tape. That would have been a good reality check on their otherwise ivory tower approach to police practices issues.

Finally, Miss Watts can be heard on the tape saying she knows her rights and doesn’t have to do what the police say. She is wrong about this. People have no right to resist in the field what they view as unlawful police conduct. They simply have to go along with it and seek their remedies in court at a later time usually by way of a civil suit against the police. The Courts have said that it is not up to citizens in the field to decide if the police are acting correctly or not.



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2 comments:

  1. Mr. Chrystie might be interested to hear about a crazy case we had up here in Palo Alto 10 years ago when a flaming racist DA named Peter Waite tried to prosecute two Asian officers for subduing a violently aggressive black suspect on the grounds that they should never have approached him in the first place, despite the fact that they were responding to multiple citizen reports of a black man ducking down below the dashboard of his parked car on a residential street where a rash of burglaries had occurred. Waite tried to get these officers thrown in jail for investigating these calls!

    I wrote a four part essay on the case for anyone who wants the full details:

    http://errortheory.blogspot.com/2005/05/persecution-of-lee-and-kan-part-i_18.html

    Here is the essence of the case. On initial approach the man cried racism and refused to answer questions so the first officer (Officer Lee) withdrew and had the car's license plate checked. Lee then came back to ask the man for his drivers license, at which the man screamed about racism and jumped out of his car, prompting the officer to draw pepper spray and order him back in. "I dare you" the man said, but he did get back in.

    So now there was detention, not on the basis of the initial suspicious activity but on grounds of officer safety, for which SCOTUS has afforded very wide latitude. The officer again asked the man if he had a license and he said no. After another officer arrived (Officer Kan) the man changed his story, saying he had lost his license. Both would turn out to be lies, but clearly there was probable cause to think he was lying, so the officers decided to arrest the man for obstructing an investigation.

    When they ordered him out of the car he started fishing for something under his seat. Thinking he might be going for a weapon they opened the door and grabbed him, at which point the man yanked one officer into the car with him and started fighting tooth and nail, leading to escalating force by the officers until the man (later identified as Albert Hopkins) was subdued and taken into custody on both obstructing and resisting charges.

    DA Peter Waite argued that because the suspect was black the officers should have assumed that the calls about suspicious behavior were mere racist paranoia, leaving them with no grounds for making initial contact. There was nothing wrong with their behavior after contact was made so to attack the police he had to claim the initial contact was illegal. But there are no restrictions on initial contact. Police have the same right as anyone else to approach and talk to anyone on the street (affirmed by SCOTUS in the Terry case and in Mendenhall).

    That didn't stop Waite, turned to the Palo Alto Police Department's evidence protection policies. If a suspect refuses to talk policy says police should stop questioning in order to preserve evidence from possible Miranda challenges. Since Lee returned to ask Hopkins if he had a license Waite claimed that they were violating policy and hence and hence had committed the crime of acting under color of authority and should be held strictly liable for any harms that ensue.

    This gambit by Waite contradicts California's color of authority statute, which only applies to specific actions. It can only apply if the person being charged:
    (a) Arrests any person or detains that person against his or her will.
    (b) Seizes or levies upon any property.
    (c) Dispossesses any one of any lands or tenements.

    It does NOT apply to asking question of a person on the street (which would violate the SCOTUS-affirmed free speech rights of officers). If Chrystie hasn't seen this case I'm sure he would be astounded by it and I would very much like to hear his reaction.

    ReplyDelete

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