CASE UPDATES

By: Martin J. Mayer
and
Mervin D. Feinstein

CIVIL RIGHTS

Minor Did Not Invoke Miranda Rights When He Requested To Talk With Mother

PEOPLE v. HECTOR 83 Cal. App. 4th 228 (2000)

After Detective Mark Campbell received information that 17 year old Dante Hector and Antoine Smith were involved in the shooting of Rodney Rolison, Hector was taken into custody, transported to the police station and interviewed by detectives. Detective Chumley advised Hector of his constitutional rights pursuant to Miranda and Hector indicated he had heard the warning before and understood it. Soon after the interview started Hector asked the detectives if they would telephone his mother. A short time later Det. Harkins told Hector that his mother would be back in about an hour and that his step-father had been informed and was going to tell his mother.

The detectives continued questioning Hector, who denied involvement and asked whether he would be able to go home if he told the detective the truth. Hector was informed that he probably would not be going home. Hector finally told the detectives he thought he was about to be killed so he shot Rolison. After telling the investigators how he disposed of the gun Hector again indicated he wished to call his mother.

At trial Hector moved to suppress evidence of his confession, asserting that when he told the investigators that he wished to speak to his mother, he had invoked his Miranda rights and all questioning should have ceased. The jury convicted Hector of second degree murder and the court sentenced him to 25 years to life.

The California Court of Appeal Second Appellate District affirmed Hector's conviction, determining that under the totality of the circumstances test Hector knowingly and voluntarily waived his Miranda rights and did not invoke them by requesting to speak to his mother during police questioning.

The court noted that to determine if a juvenile's waiver was voluntary, courts should consider the juvenile's age, experience, education, background, intelligence and whether he or she has the capacity to understand the warnings given, the nature of his or her Fifth Amendment rights, and the consequences of waiving those rights. The court stated that in People v. Peevy, 17 Cal. 4th 1184 (1998), the California Supreme Court recognized that the California Constitution established that statements taken in violation of Miranda were to be excluded from evidence only to the extent required by the federal Constitution, and applied the totality of the circumstances test set forth by the United States Supreme Court in Fare v. Michael C., 442 U.S. 707 (1979).

The court concluded that a juvenile=s request to speak to a parent must be construed as an invocation of his or her Fifth Amendment privileges unless there was evidence demanding a contrary conclusion. (People v. Burton, 6 Cal. 3rd 375 (1971)). Here Hector was a 17 year old with substantial prior experience with police and police procedures. When read his Miranda rights, he indicated he had heard them before and understood them. When informed that his mother could not be reached but that a message had been left for her, Hector did not indicate he wished to stop speaking with the detectives, but instead readily continued to answer questions.

/ How does this affect your agency?

With the recent holding that officers will not have qualified immunity if they continue to question after Mirandahas been invoked (California Attorneys For Criminal Justice, et al. v. City of Santa Monica, et al. 195 F.3d 1039 (9th Cir.1999)) personnel must be cautioned that unless they are absolutely sure a suspect has not invoked Miranda rights, they should consult the department's legal advisor if they want to retain immunity in a subsequent civil rights action.

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Affirmative Conduct Which Places Plaintiff In A Position Of Danger Will Destroy An Officer's Qualified Immunity Defense

MUNGER v. CITY OF GLASGOW POLICE DEPARTMENT, et al. 2000 WL 1252086

One evening when the temperature was 11 degrees, with a wind-chill factor of minus 20-25 degrees, the bartender at Stan's Bar called police for help with a disturbance caused by Lance Munger. When officers arrived Munger, wearing only jeans and a t-shirt, was standing outside the Bar and followed them inside when they entered. In dispute was whether an officer then took Munger by the arm and walked him out the front door or whether Munger walked outside without physical contact by any officer. Munger, who was obviously drunk, was told by Officer Buerkle not to drive his truck, which was parked nearby, and that he could not re-enter Stan's Bar.

The last anyone saw of Munger he was walking toward an abandoned railway yard, away from the police and from Stanss and the other bars. The officers, concerned that Munger was clad only in a T-shirt, allegedly went looking for him. Munger was found curled up in an alleyway two blocks from Stan's Bar the next day, having died from hypothermia.

The Mungers family alleged that the officers and police department violated their constitutional duties to protect Munger once they had placed him in danger by ejecting him from the bar wearing only a T-shirt in sub-freezing temperatures. The district court granted summary judgment to the officers, on the 42 U.S.C. ' 1983 claims, on the basis of qualified immunity. The United States Court of Appeals Ninth Circuit reversed the district court's grant of summary judgment for the individual officers on qualified immunity grounds, reversed the grant of summary judgment on the state law negligence claims and reversed the dismissal of the ' 1983 claims against the police department.

Qualified immunity, the court noted, ...shield[s] [government agents] from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

The court noted that the district court found that the law governing the officers= conduct was clearly established thus, under the Due Process clause of the Fourteenth Amendment, an officer may be held liable for failing to protect an individual where the state has placed that individual in danger through its affirmative conduct. However, the district court also found that the defendants had met their burden of proving that a reasonable officer could have believed their conduct lawful, since [u]nder the circumstances at issue ... Munger was not affirmatively placed in danger by the officers.

The court agreed with the district court that the law was clearly established. The court noted however that although the general rule is that the state is not liable for its omissions, there are several exceptions, i.e., the danger creation exception. This exception exists where there is affirmative conduct on the part of the state in placing the plaintiff in danger.

The Ninth Circuit held that the district court erred in concluding that the officers did not affirmatively place Munger in a position of danger. The officers affirmatively ejected Munger from a bar late at night when the outside temperature was sub-freezing. They knew Munger was wearing only a T-shirt and jeans, was intoxicated, was prevented from driving his truck or re-entering Stan's Bar, and was walking away from nearby open establishments. Further, the court noted, the officers went looking for Munger, which demonstrated that they were aware of the danger that he was in.

The court also stated that the adequacy of the officer's training was called into question by the officers' inappropriate handling of a person who was obviously drunk and uncooperative. It also appeared to the court that the police department may have failed to train their officers regarding the duty that arises when, through affirmative conduct, they expose a person to potential danger from the elements or from a third person.

Genuine issues of material fact, as to the existence of a constitutional deprivation, necessitated further consideration of the Munger's claim that the deprivation was caused by, the police departments deliberate indifference in failing to adequately train the officers.

The court concluded that although a police officer generally has no duty to protect a particular individual absent a special relationship, a duty to protect arises where a police officer takes affirmative steps that increase the risk of danger to an individual.

/ How does this affect your agency?

In examining whether an officer affirmatively places an individual in danger, courts will examine whether the officer left the person in a situation that was more dangerous than the one in which he or she was found. It is increasingly important that an agency examine it's training criteria to ensure personnel are continually exposed to reality based situations.

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Permission to Search Is Invalid When Obtained From Person Officers Knew Did Not Reside On Premises

UNITED STATES v. REID & BLAKE 226 F.3d 1020 (2000)

Agents from the U.S. Marshals, the Drug Enforcement Agency, and the Immigration and Naturalization Service went to Apartment 101, at 4424 44th Street, San Diego, California, without a search or arrest warrant. The officers wanted to speak with an individual named Mikey, who was a close associate of one Aldrick Lloyd Edwards, suspected of committing various narcotics and weapons violations. Deputy Marshall Kitts knocked and a man, who Deputy Kitts knew from appearance was not Mickey or Edwards, answered. Deputy Kitts testified that he smelled the aroma of burning marijuana and when he displayed his badge and identified himself as a federal agent the man, later identified as Junior Grant, slammed and locked the door.

Within seconds Deputy Kitts received a call over his radio that another deputy marshal, covering the rear exit, observed a man matching Junior Grant's description running from the back of the apartment and was being detained. Upon arrival at the rear of the apartment Deputy Kitts observed Grant standing in a spread eagle position facing the sliding glass door at the rear of apartment 101. Deputy Kitts testified that there was no probable cause to arrest Grant at the time and that Grant was told that he was being handcuffed for his safety and the safety of the officers but was not under arrest.

Deputy Kitts testified that Grant then gave the officers permission, at their request, to enter the apartment to retrieve his identification and to make sure that no one else was inside. Grant, however, testified that when the officers detained him at the back of the apartment, they told him that he was going to go to prison. Grant also testified that he refused to sign a consent to search form and that he told the officers that he could not give them permission to search the apartment because it was not his residence.

The officers went inside the apartment and observed firearms, currency, packing boxes, clear plastic bags, and other items that they believed to be associated with marijuana trafficking. After observing these items Deputy Kitts left the apartment to obtain a search warrant while other officers remained at the scene. Deputy Kitts did not state in his affidavit that he and other officers entered the apartment to retrieve Grant's identification, rather it indicated that Grant said no one else was in the residence and consented to a search for other persons.

The search warrant arrived and was executed with the officers locating weapons, documents, false identification, boxes, tape, bags of packing material, Federal Express service bills and money transfer receipts. Also located was an electronic scale with a 220 pound capacity, marijuana residue and $30,000. The DEA agent began an administrative forfeiture of the currency as well as vehicles parked in the stalls associated with apartment 101.

A federal grand jury returned an indictment against Wayne Blake and Lawrence Reid (tenants of the apartment) and they were convicted by a jury after their motions to suppress the fruits of the warrantless search of the apartment was denied by the district court judge. The United States Court of Appeals Ninth Circuit reversed the convictions and remanded the case back to the district court, finding that Grant's consent to search the apartment was neither voluntary or valid and that the warrantless search was neither a protective sweep nor justified by exigent circumstances.

The court rejected the government=s contention that Grant had apparent authority to consent because he answered the front door and appeared to be alone in the apartment, finding it insufficient because the mere fact of access, without more, does not indicate that the access was authorized.

As to the voluntariness, assuming Grant had authority, the court stated that it considered the following factors to assess whether the consent was voluntary: (1) whether the person was in custody; (2) whether the officers had their guns drawn; (3) whether a Miranda warning had been given; (4) whether the person was told that he had the right not to consent; and (5) whether the person was told that a search warrant could be obtained. The court found that relevant considerations overwhelmingly favored the finding that Grant did not voluntarily consent.

Addressing the government's argument that the warrantless search of the apartment was valid as a protective sweep and that it was justified by exigent circumstances, the court applied the United States Supreme Court's definition of a protective sweep in Maryland v. Buie, 494 U.S. 325 (1990) as a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers and others.

The court noted that officers detained Grant in the back of the apartment and that he was not under arrest. Additionally the court noted that the government did not point to any facts that demonstrated that a reasonably prudent officer would have believed that the apartment harbor[ed] an individual posing a danger to those on the arrest scene.

/ How does this affect your agency?

This case emphasizes the necessity of including all relevant information in the warrant affidavit, as well as written reports by all personnel who take part in an arrest situation. Where doubt exists about a consent to search situation officers should take the time to ask relevant occupancy questions of the individual(s) they seek consent from, then include such in their documentation of the incident. Where a search warrant can be obtained shortcuts should be avoided. It must always be kept in mind that, where the law has been well settled, qualified immunity will not protect the officer from liability exposure.

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Knowingly Searching Areas Erroneously Included In Search Warrant Nullifies Officer's Qualified Immunity

MENA v. CITY OF SIMI VALLEY et al. 226 F.3d 1031 (2000)

Officers of the Simi Valley Police Department responded to and began investigating a gang-related drive-by shooting. During the investigation Officers Muehler and Brill learned that their primary suspect, Raymond Romero, was in possession of a .25 caliber handgun used in the shooting. Raymond's brother, Anthony, informed the officers that Raymond lived in a poor house on Patricia Avenue and gave the officers a telephone number. Utilizing the telephone number given by Anthony, the officers determined that Raymond lived at 1363 Patricia Avenue, Simi Valley, a residence owned by Jose Mena.

Jose Mena lived at the Patricia Avenue residence only part-time, his daughter, Iris, however was a full-time resident. Several other unrelated boarders also lived at the Menas' home, renting rooms in the house, space in the garage, and motor-homes and vans parked in the backyard. Of note was that Officers Muehler and Brill both had been to the Mena residence on police business on at least two prior occasions.

Officer Muehler executed an affidavit in support of a warrant to search the Mena house. In describing the Mena house, Officer Muehler stated in the affidavit that Anthony Romero had explained that it was a poor house, meaning a residence with a large number of subjects residing in a residence designed for one family. Officer Muehler's affidavit, however, did not explain that he had been to the Mena residence before, or that he had observed that all of the doors adjacent to the living room were shut and that some of them had padlocks on them. Based on Officer Muehler's affidavit, a magistrate judge issued a search warrant for the entire Mena residence as well as search of the person of Raymond Joseph Romero.

Several officers, including Muehler and Brill, along with a SWAT team, executed the search warrant on the Mena's residence during early morning hours. After entering the house, the officers observed that some of the rooms were locked, many with padlocks on the outside of the doors. Nevertheless, the officers proceeded to force entry into these locked rooms, including the bedroom in which Iris Mena was sleeping. The officers found Iris Mena in bed, forcibly turned her over, handcuffed her, and detained her in the bedroom until the residence was cleared and secured by the entry team.

Once the house was secure, the members of the SWAT team left the premises, and the remaining officers searched the residence. When the officers completed their search, they took Iris Mena back into her home, removed her handcuffs, and told her of the purpose of the warrant and search.

Iris and her father filed suit under 42 U.S.C. ' 1983, alleging the City and the officers violated their civil rights. The district court issued an order denying the defendant's summary judgement motion based on qualified immunity. The United States Court of Appeals Ninth Circuit affirmed the district court, except as to the claim that the warrant itself was, on its face, over broad.

The court pointed out that there was no doubt that the warrant described the place to be searched with sufficient particularity, thereby satisfying the warrant clause of the Fourth Amendment. The question however was whether the warrant was over broad because it authorized the search of the entire premises even though the house was a multi-unit dwelling and probable cause related only to Romero's residential unit and, possibly, common areas of the house.

The court noted that police officers' authority to search premises that are described in a warrant is not unlimited. If, during the search, the officers become aware that the warrant describes multiple residences, the officers must confine their search to the residence of the suspect. United States v. Kyles, 40 F.3d 519, 524 (2nd Cir.1994), citing Maryland v. Garrison, 480 U.S. 79 (1987).

The court found that shortly after beginning the search, the evidence and the reasonable inferences it supported was sufficient to suggest that the officers should have realized that the Menas' house was a multi-unit residential dwelling and that the warrant was actually over broad. The court agreed with the district court that the law is well established that the officers were required to discontinue the search of [Plaintiffs' property not reasonably in Romero's control] as soon as they discovered that there were [other] separate units [on the property] and therefore were put on notice of the risk that they might be in a [portion of the property] erroneously included within the terms of the warrant.

Finding that a jury could conclude from the facts that the officers' search beyond Romero's room and common areas was unreasonable the court affirmed the district court's denial of qualified immunity on this claim.

/ How does this affect your agency?

From the number of cases being handed down involving searches this appears to be a training area that requires attention. The message that officers should err on the side of caution can not be clearer. Courts do not readily deny officers qualified immunity and when they do it usually is for conduct that goes beyond that necessary to make an arrest, obtain or serve a warrant.

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Where Public Employee Accesses Confidential Information Through Employers Equipment He/She Acts Under Color Of Law

MCDADE v. WEST et al. 223 F.3d 1135 (2000)

Michael West married Bridget Pinckney (hereafter Ms. West) shortly after his marriage to Rozlyn McDade was dissolved. Michael West and Rozlyn McDade were having post-marital problems concerning custody of the three children they had during their marriage. Ms. West was employed as a clerical employee at the Ventura County District Attorney Child Support Division. Ms. West had access to the statewide database MEDS, which contains the names and addresses of all persons eligible to receive certain public benefits.

McDade moved to a secretly located women's shelter to escape abuse from a third person not associated with problems between her and Michael West. In order to continue receiving public assistance McDade notified a social case worker, who entered her new address in the MEDS system.

Michael West scheduled a hearing to modify the child custody arrangement, however, because McDade was in a confidential shelter he was unable to serve her with notice of the hearing. To find her location, Bridgett West inquired into the MEDS system while on duty on four occasions and obtained the address of the shelter where McDade was located and disclosed the information to Michael. Michael West then caused McDade to be served papers directly at the shelter and McDade was requested to leave because the shelter location had been divulged to an ex-spouse, thereby potentially compromising everyone's safety.

McDade notified the Child Support Division Office which placed Ms. West on administrative leave until the allegations were investigated. The District Attorney's Office determined Ms. West improperly utilized MEDS and terminated Ms. West, referring the matter to the State Attorney General for prosecution. Ms. West was found guilty of violating Penal Code Section 502(c)(1), disclosure of private data, by the Ventura County Superior Court.

McDade filed a 42 U.S.C. ' 1983 action in the United States District Court for the Central District of California against Michael and Bridgett, District Attorney Michael Bradbury, and the County of Ventura. The District Court granted the motion to dismiss the District Attorney and other defendants finding the Bridgett West was acting in the ambit of her personal pursuits and not under color of law, and that McDade failed to demonstrate that the County was deliberately indifferent to her civil rights.

The United States Court of Appeals Ninth Circuit affirmed in part and reversed in part, holding that Ms. West acted under color of state law since there was undisputed evidence that she abused her responsibilities and purported or pretended to be a state officer during the hours in which she accessed the computer. The court further held that since it was clear that no state policy served as the moving force behind Ms. West's violation, there was no proximate causality between the municipality's acts and the disclosure.

The court stated that the purpose of ' 1983 was to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights. It is firmly established that a defendant in a ' 1983 suit acts under color of state law when he abuses the position given to him by the State. Thus, generally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law. West v. Atkins, 487 U.S. 42, 48 (1988). The acts, the court noted, must be performed while the officer is acting, purporting, or pretending to act in the performance of his or her official duties.

Here it was undisputed that Ms. West was authorized by the County, and expected as part of her official duties, to access the MEDS database and the County described Ms. West's computer access privileges as necessary to do her job. While acting under the pretense of performing her official duties, Ms. West accessed the database during normal working hours, using computer equipment and a password supplied by the County. Because Ms. West's status as a state employee enabled her to access the information, she invoked the powers of her office to accomplish the offensive act. Therefore, however improper Ms. West's actions were, they clearly related to the performance of her official duties.

Addressing McDade's allegation that the District Attorney failed to train Ms. West that the unauthorized disclosure of a battered women's shelter violated her constitutional right to privacy as well as Penal Code ' 273.7, the court stated that a plaintiff cannot demonstrate the existence of a municipal policy or custom based solely on a single occurrence of unconstitutional action by a non-policymaking employee. Only if a plaintiff shows that his injury resulted from a permanent and well settled practice may liability attach for injury resulting from a local government custom.

/ How does this affect your agency?

It is imperative that every employee not only receive periodic training regarding confidentiality laws but also that the agency maintain a declaration, signed by each employee, acknowledging that they understand the confidential nature of the information to which they have access and that it is illegal to improperly disclose it.

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As always, before taking any legal actions be certain to seek appropriate legal advice, whether it is from a city attorney, county counsel or your police legal advisor. If you have any questions regarding any of the above please do not hesitate to call us at (562) 590-8280.