620th Basic Law Enforcement Academy – October 11, 2007 through February 25, 2008
President: Scott P. Mandella – King County Sheriff's Office
Best Overall: Ryan Parrott – Bellevue Police Department
Best Academic: Ryan Parrott – Bellevue Police Department
Best Firearms: Martin Chamberlain – King County Sheriff's Office
Tac Officer: Stuart Hoisington – Tacoma Police Department
APRIL 2008 LED TABLE OF CONTENTS
NINTH CIRCUIT, UNITED STATES COURT OF APPEALS 3
NO MIRANDA CUSTODY IN PHONE CONVERSATION BETWEEN JAILED SUSPECT AND POLICE WHERE SUSPECT INITIATED THE PHONE CALL
Saleh v. Fleming, 512 F.3d 548 (9th Cir. 2008) (decision filed January 3, 2008) 3
BRIEF NOTES FROM THE NINTH CIRCUIT, UNITED STATES COURT OF APPEALS 6
TOTALITY-OF-THE-CIRCUMSTANCES STANDARD HELD TO LIMIT TERRY STOPS FOR “PREVIOUSLY COMMITTED” GROSS MISDEMEANORS AND MISDEMEANORS THAT DO NOT HAVE POTENTIAL FOR ONGOING OR REPEATED DANGER OR ANY RISK OF ESCALATION
U.S. v. Grigg, 498 F.3d 1076 (9th Cir. 2007) (decision filed August 22, 2007) 6
OFFICER SHOULD HAVE CLARIFIED SUSPECT’S AMBIGUOUS RESPONSE OF “I’M GOOD FOR TONIGHT” THAT IMMEDIATELY FOLLOWED OFFICER’S QUESTION WHETHER THE JUST-MIRANDIZED SUSPECT WISHED TO TALK TO OFFICER
U.S. v. Rodriguez, __ F.3d __, 2008 WL 623982 (9th Cir. 2008) (decision filed March 10, 2008) 8
AFTER TWO ATTEMPTS DURING CUSTODIAL INTERROGATION TO ASSERT HIS RIGHT TO SILENCE, SUSPECT TOLD INTERROGATING OFFICER: “I PLEAD THE FIFTH” - - APPEALS COURT HOLDS THAT, AT THAT POINT, THE QUESTIONING SHOULD HAVE STOPPED AND THAT THE OFFICER’S RESPONSE OF “PLEAD THE FIFTH, WHAT’S THAT?” WAS NOT A CLARIFYING QUESTION
Anderson v. Terhune, ___ F.3d __ , 2008 WL 399199 (9th Cir. 2008) (decision filed February 15, 2008) 9
COURT HOLDS IN CIVIL RIGHTS LAWSUIT THAT OFFICERS LACKED PROBABLE CAUSE TO ARREST MAN SUSPECTED OF PASSING COUNTERFEIT BILLS
Rodis v. City and County of San Francisco, 499 F.3d 1094 (9th Cir. 2007) (decision filed August 28, 2007) 10
UNDER AIRPORT-SEARCH RULE, AFTER PASSENGER PLACES ITEMS ON THE CONVEYOR BELT AND WALKS THROUGH THE MAGNETOMETER, THE PASSENGER CANNOT CHOOSE TO LEAVE AIRPORT TO AVOID SEARCH
U.S. v. Aukai, 497 F.3d 955 (9th Cir. 2007) (decision filed August 10, 2007) 12
COURT REJECTS A VARIETY OF THEORIES ARGUED BY AN OFFICER WHO CHALLENGED BEING FIRED FOR MAINTAINING A SEXUALLY EXPLICIT WEBSITE
Dible v. City of Chandler (Arizona), __ F.3d __, 2008 WL 269508 (9th Cir. 2008) (decision filed September 5, 2007; amended February 1, 2008) 12
IN INTERNAL AFFAIRS INVESTIGATION FOLLOWING USE-OF-FORCE INCIDENT, OFFICERS’ FOURTH AMENDMENT AND FIFTH AMENDMENT RIGHTS WERE NOT VIOLATED
Aguilera v. Baca, 510 F.3d 1161 (9th Cir. 2007) (decision filed December 27, 2007) 13
WHERE 1) TENANT OF STORAGE UNIT WAS ALLOWING MURPHY TO LIVE THERE AND 2) MURPHY HAD REFUSED TO CONSENT TO A SEARCH, THE TENANT COULD NOT LAWFULLY CONSENT TO A SEARCH TWO HOURS LATER
U.S. v. Murphy, ___ F.3d ___ (9th Cir. 2008) (decision filed February 20, 2008) 13
BRIEF NOTES FROM THE WASHINGTON STATE SUPREME COURT 14
TO ESTABLISH TELEPHONE HARASSMENT, STATE MUST PROVE INTENT TO HARASS THE VICTIM WAS FORMED WHEN THE DEFENDANT INITIATED THE CALL
State v. Lilyblad, __ Wn.2d __, __ P.3d __, 2008 WL 324355 (2008) 14
JUVENILE COURT’S FAILURE AT TIME OF EARLIER ADJUDICATION TO NOTIFY DEFENDANT OF BAR TO FIREARMS POSSESSION PRECLUDES HIS SUBSEQUENT CONVICTION FOR GUN POSSESSION UNDER RCW 9.41.040
State v. Minor, ___ Wn.2d ___, 174 P.3d 162 (2007) 15
WASHINGTON STATE COURT OF APPEALS 16
REASONABLE SUSPICION SUPPORTED TERRY STOP OF POSSIBLE PROWLER WHO WAS FOUND INSIDE STORAGE UNIT AREA AT 2:30 A.M., WAS DRIVING WITHOUT CAR LIGHTS, AND WAS KNOWN FROM PAST CONTACTS NOT TO BE A RENTER; ALSO, DURATION OF TERRY DETENTION WAS REASONABLE
State v. Bray, ___ Wn. App. ___, 177 P.3d 154 (Div. III, 2008) 16
FATHER WHO FORCED HIS SON AND DAUGHTER, WHILE BOTH WERE UNDER THE AGE OF CRIMINAL RESPONSIBILITY, TO HAVE SEX IS GUILTY OF RAPE AND INCEST
State v. Bobenhouse, ___ Wn. App. __ , 177 P.3d 289 (Div. III, 2008) 19
EVIDENCE HELD SUFFICIENT TO SUPPORT KIDNAPPING CONVICTIONS AS TO TWO CHILDREN DESPITE DEFENDANT’S STATUS AS A CUSTODIAL PARENT OF ONE CHILD AND ARGUABLE STATUS AS A GUARDIAN OF THE OTHER CHILD
State v. Lopez, __ Wn. App. __, 174 P.3d 1216 (Div. I, 2007) 21
BRIEF NOTES FROM THE WASHINGTON STATE COURT OF APPEALS 24
RCW 9.94A.533(5) DRUGS-IN-JAIL SENTENCING ENHANCEMENT DOES NOT APPLY TO ARRESTEE WHO had METHamphetamine IN HIS SOCK that was dISCOVERED in search when he was booked into jail
State v. Eaton, ___ Wn. App. ___, 177 P.3d 157 (Div. II, 2008) 24
VANDALIZING A POLICE VEHICLE WAS NOT “USE” OF THE VEHICLE IN A FELONY, AND THEREFORE the DRIVER’S LICENSE of the vandal may not be revoked under rcw 46.20.285(4)
State v. B.E.K., 141 Wn. App. 742 (Div. II, 2007) 24
ADMINISTRATIVE INCONVENIENCE FOR A VERY SMALL CITY DOES NOT EXCUSE CITY’S FAILURE TO STRICTLY COMPLY WITH THE PUBLIC RECORDS ACT
Zink v. City of Mesa, 140 Wn. App. 328 (Div. III, 2007) 24
EVIDENCE THAT WAS SUPPRESSED BECAUSE STATE’S WARRANTLESS-EMERGENCY-SEARCH RATIONALE WAS REJECTED MAY BE ADMISSIBLE BASED ON AFFIDAVIT’S INFORMATION THAT WAS NOT OBTAINED IN THE UNLAWFUL WARRANTLESS SEARCH
State v. Leffler, __ Wn. App. __, 173 P.3d 293 (Div. II, 2007) 25
NINTH CIRCUIT, UNITED STATES COURT OF APPEALS
NO MIRANDA CUSTODY IN PHONE CONVERSATION BETWEEN JAILED SUSPECT AND POLICE WHERE SUSPECT INITIATED THE PHONE CALL
Saleh v. Fleming, 512 F.3d 548 (9th Cir. 2008) (decision filed January 3, 2008)
Facts and Proceedings below:
Elizabeth Edwards was the manager of the Seattle, Washington apartment complex in which she lived. On July 9, 1996, she failed to report to work. Edwards's maintenance supervisor, Joel Keller, went to her apartment to check on her and discovered Edwards lying seriously injured on the living room floor. Keller called 911 and soon thereafter the police and paramedics arrived. Edwards had suffered blows to the head and face, two of which left indentations in her skull. Her sinus cavities were crushed and bone fragments were driven into her brain. She died of complications caused by the attack a week later.
After initially suspecting a recent boyfriend of Edwards as the murderer, the police eventually focused their investigation on Edwards's former husband, Habib Saleh. On March 3, 1998, a Seattle Police Detective went to the King County Jail to interview Saleh, who was serving a jail sentence for assaulting his son-in-law. Detective Ramirez took Saleh to an interview room in the jail and interrogated him after reading him his Miranda rights. On March 25, 1998, Detective Ramirez returned to the jail to interview Saleh again. After the detective presented Saleh with a written copy of his Miranda rights, Saleh asked for an attorney. Detective Ramirez asked Saleh what he wanted to do, and Saleh began to cry and said that he wanted the electric chair so he could join Edwards. He also said that he had nothing to do with Edwards's death.
The next day, Saleh placed a collect call from the jail to Detective Ramirez, and the two of them discussed the Edwards case. Saleh again told Detective Ramirez that he wanted the electric chair so he could be with Edwards, and again denied killing Edwards.
The State charged Saleh with first degree murder. At trial, the evidence presented included the following: that Saleh had a history of “verbal and physical” confrontations with Edwards; that within an hour of the attack on Edwards, Saleh had attacked his son-in-law in similar fashion to Edwards's attack; that blood spatter on a fascia board outside Edwards's apartment was consistent with Saleh's DNA and with his lowering himself onto Edwards's lanai from the roof; that, at 1:42 a.m. on July 9, Saleh received treatment for a laceration on his forearm; and that the scar from that wound matched the shape of the stain outside Edwards's apartment.
At trial, the State tried to introduce certain statements (concerning his love for Edwards and his desire to be executed) that Saleh had made to police during the conversations that had taken place in March 1998. The trial court suppressed Saleh's statements of March 3, 1998, finding that the State had failed to demonstrate that Saleh had understood his Miranda warning. Additionally, because the statements made on March 25, 1998, were part of a custodial interrogation and were made after Saleh had asked for counsel, those statements were suppressed. The court also found that the March 25, 1998, statements, though inadmissible, were not the product of coercion but were voluntary. The court concluded, however, that the statements made to Detective Ramirez during the phone call that Saleh initiated on March 26, 1998, were admissible.
The Jury found Saleh guilty of first degree murder, and the trial court sentenced him to 320 months in prison.
On direct appeal, the Washington Court of Appeals affirmed Saleh's conviction. Saleh's petition for review in the Washington Supreme Court was denied, concluding his direct appeal in state court. Saleh then filed a collateral attack on his conviction in state court (a personal restraint petition), which the Washington Court of Appeals denied. He thereafter filed a motion for discretionary review in the Washington Supreme Court, but the Commissioner of that court denied the motion.
On November 13, 2003, Saleh filed his federal habeas petition with the district court arguing multiple grounds for relief. On April 14, 2004, the magistrate judge issued her Report and Recommendation recommending that Saleh's petition be denied. On June 2, 2004, the district court adopted the Report and Recommendation of the magistrate judge, and denied Saleh's petition with prejudice. Saleh timely appealed, and a motions panel of this court issued a certificate of appealability on five issues.
ISSUES AND RULINGS: 1) Where defendant initiated a collect call from the jail to the detective investigating his possible commission of a murder, was the conversation a custodial interrogation under Miranda v. Arizona requiring Miranda warnings and waiver? (ANSWER: No); 2) Where the two prior custodial interrogations of the defendant were held violative of Miranda because defendant had not understood the warnings on the first occasion, and defendant had invoked his right to an attorney on the second occasion, were the statements that defendant made in his noncustodial phone call to the detective admissible because the prior Miranda-violative conversations were not coerced and not the product of intentional violations of Miranda by the detective? (ANSWER: Yes)
Result: Affirmance of the decision of the U.S. District Court (Western District of Washington) denying Habib Tawfez Saleh’s petition for habeas relief from his Washington conviction for first degree murder.
ANALYSIS: (Excerpted from 9th Circuit opinion)
1) Phone-call custody issue
Saleh argues that the state trial court erred in admitting the statements he made to the police in the March 26, 1998, phone call. The Washington Court of Appeals held that although Saleh was in jail during the phone call, because he initiated the call and was free to end the conversation at any time, it was not “custodial,” and thus no Miranda warnings were required. Saleh argues that the Court of Appeals's decision was contrary to the Supreme Court's decision in Mathis v. United States, 391 U.S. 1 (1968).
In Mathis, the Supreme Court did indeed hold that “nothing in the Miranda opinion . . . calls for a curtailment of the warnings to be given persons under interrogation by officers based on the reason why the person is in custody.” But the facts of Mathis were unlike the facts here in significant respects. First, the interrogation in Mathis was initiated by a federal agent, who interviewed Mathis while he was in state prison, here, the conversation in question was a phone conversation initiated by Saleh. Second, there is no indication in Mathis that the prisoner was free to end the interrogation with the agent; here, it is undisputed that Saleh could have terminated the phone call he had begun at any time. Thus, Mathis's dependence upon Miranda's discussion of custody as relating to a deprivation of freedom by the authorities, 391 U.S. at 5, is of no help to Saleh here, where he freely placed the phone call and his freedom to terminate the discussion of Edwards's murder was unaffected by his unrelated incarceration.
We agree with the Eighth Circuit that “incarceration does not ipso facto render an interrogation custodial,” and that the need for a Miranda warning to the person in custody for an unrelated matter will only be triggered by “some restriction on his freedom of action in connection with the interrogation itself.” Leviston v. Black, 843 F.2d 302 (8th Cir.1988); see also Cervantes v. Walker, 589 F.2d 424 (9th Cir.1978) (rejecting a per se requirement of Miranda warnings for all persons interrogated while incarcerated). Accordingly, the Washington Court of Appeals's determination that the March 26, 1998, phone conversation was not custodial for purposes of Miranda was not contrary to clearly established Supreme Court precedent.
2) Cat-out-of-the-bag issue
Saleh also argues that the March 26, 1998, statements should have been suppressed under the “cat out of the bag” theory set forth in United States v. Bayer, 331 U.S. 532 (1947) (“[A]fter an accused has once let the cat out of the bag by confessing . . . he is never thereafter free of the psychological and practical disadvantages of having confessed . . . . In such a sense, a later confession always may be looked upon as fruit of the first.”). Saleh argues that the statements made on March 26 were substantially similar to the ones he made in the earlier conversations on March 3, 1998, and March 25, 1998, in which his Miranda rights were violated. He contends, in effect, that these cats could not be put back in the bag.
However, that argument is foreclosed by Medeiros v. Shimoda, 889 F.2d 819 (9th Cir.1989). In Medeiros, we held that, under Oregon v. Elstad, 470 U.S. 298 (1985), the “cat out of the bag” theory does not apply where a confession is voluntarily made, under circumstances not requiring a Miranda warning, subsequent to a technical Miranda violation. Rather, the relevant inquiry is whether the suspect “made his second statement voluntarily.”
Here, the Washington Court of Appeals affirmed the trial court's conclusion that the March 25, 1998, statements, though obtained in violation of Miranda, were voluntary. [Court’s footnote: The trial court also explicitly noted that the March 3, 1998, statements, though not obtained in compliance with Miranda, were not the product of coercion.] In light of its conclusion that the March 26, 1998, phone conversation was not a custodial interrogation (and therefore did not require a Miranda warning), it concluded that under Elstad's reasoning, there was no reason to treat the March 26 statements as tainted.
Saleh seemingly does not challenge the state courts' determination that his March 3, 1998, and March 25, 1998, statements were voluntary. Nor does he contest that he initiated the March 26, 1998, phone call and that he was free at all times to end it. [Court’s footnote: Saleh's reliance upon Missouri v. Seibert, 542 U.S. 600 (2004) Sept 04 LED:04 (plurality opinion), is misplaced in light of his initiation of the March 26 phone call. In Seibert, the Court distinguished Elstad to address what a majority saw as a deliberate, two-step interrogation designed to undermine Miranda's protections. (“The technique of interrogating in successive, unwarned and warned phases raises a new challenge to Miranda.”) (Souter, J., concurring); (“The police used a two-step questioning technique based on a deliberate violation of Miranda.”) (Kennedy, J., concurring in the judgment). Here, the conversation that was admitted was not part of a deliberate police interrogation, but a phone call freely placed by Saleh. We also note that in Seibert, Justice Kennedy (who provided the decisive fifth vote) concurred separately in part to note that in his view “Elstad was correct in its reasoning and its result.” Seibert, 542 U.S. at 620; see also United States v. Williams, 435 F.3d 1148, 1161 (9th Cir.2006) April 06 LED:02 (holding that Elstad remains applicable after Seibert to circumstances in which an interrogator does not deliberately withhold an initial Miranda warning). Although this case is distinguishable from Elstad inasmuch as there was no intervening Miranda warning between the March 25 interrogation and the March 26 phone call, because the latter was not a custodial interrogation, no such warning was required. See Medeiros, 889 F.2d 819 (holding that “the fundamental constitutional principles” underlying Elstad require its application even where there is no intervening Miranda warning).
Accordingly, Elstad's “relevant inquiry . . . whether, in fact, the second statement was also voluntarily made” must be answered in the affirmative. We therefore conclude that the Washington Court of Appeals's decision was correct; in any event, we cannot conclude that it was contrary to clearly established Supreme Court precedent.
[Subheadings added; one footnote omitted; some citations omitted]
LED EDITORIAL NOTE: For a Washington appellate court decision holding that a phone conversation initiated by a jailed person to a law enforcement officer is not “custodial,” see State v. Denton, 58 Wn. App. 251 (Div. I, 1990). The analysis and result probably would be different if the officer initiated a phone call to the jailed person. For a Washington appellate decision holding that the very different circumstance of a police-initiated call to a person in his residence is not custodial and does not require Miranda warnings, see State v. Mahoney, 80 Wn. App. 495 (Div. III, 1996) May 96 LED:08.
BRIEF NOTES FROM THE NINTH CIRCUIT, U. S. COURT OF APPEALS
(1) TOTALITY-OF-THE-CIRCUMSTANCES STANDARD HELD TO LIMIT TERRY STOPS FOR “PREVIOUSLY COMMITTED” GROSS MISDEMEANORS AND MISDEMEANORS THAT DO NOT HAVE POTENTIAL FOR ONGOING OR REPEATED DANGER OR ANY RISK OF ESCALATION - - In U.S. v. Grigg, 498 F.3d 1076 (9th Cir. 2007) (decision filed August 22, 2007), a 3-judge panel of the Ninth Circuit holds unlawful a Terry stop of a car where the stop was made to investigate a citizen’s complaint of a previously committed noise ordinance violation. Holding the stop unlawful, the Court accordingly suppresses a machine gun that an officer saw in plain view after making the stop.
The Grigg Court notes that Nampa, Idaho police had been called to investigate a citizen’s complaint that, on several occasions over recently preceding days, a neighbor had been playing music too loudly on a car’s sound system. As the officers were talking to the complainant, a car pulled out of a driveway down the street and drove by the officers with no music playing. The complainant told the officers that this car and its driver were the subject of his complaint. For reasons not disclosed in the Grigg opinion, the Ninth Circuit panel appears to assume that at that point the officers had only reasonable suspicion, and not probable cause, as to the previously committed noise law violation by the driver of the vehicle. One of the officers followed the suspect car and activated his overhead lights to pull it over. The officer saw and seized a machine gun that was on the front passenger seat.
In its analysis, the Ninth Circuit panel recognizes that under the federal constitution’s Fourth Amendment a Terry stop is permitted based on reasonable suspicion for a misdemeanor committed in a police officer’s presence. [LED EDITORIAL NOTE: While the Ninth Circuit refers only to “misdemeanors” throughout its opinion, the context makes clear that the reference extends to both gross misdemeanors and misdemeanors as those terms are defined under Washington law.] And the panel acknowledges that the U.S. Supreme Court held in U.S. v. Hensley, 469 U.S. 221 (1985) that a Terry stop may be made based on reasonable suspicion for any previously committed felony. But the panel also notes that discussion by the U.S. Supreme Court in the Hensley opinion left room for the U.S. Supreme Court to adopt - - in a future case presenting applicable facts - - a more restrictive standard governing Terry stops for previously committed misdemeanors. As to such crimes, which by definition have been designated by a legislative body as less serious than felonies, the Grigg Court establishes, for the first time in the Ninth Circuit, a standard that is more limiting on police Terry stops based on reasonable suspicion. The Grigg Court states its standard for misdemeanor Terry stops for previously committed misdemeanors as follows:
We adopt the rule [governing Terry stops for previously committed misdemeanors] that a reviewing court must consider the nature of the misdemeanor offense in question, with particular attention to the potential for ongoing or repeated danger (e.g., drunken and/or reckless driving), and any risk of escalation (e.g., disorderly conduct, assault, domestic violence). An assessment of the “public safety” factor should be considered within the totality of the circumstances, when balancing the privacy interests at stake against the efficacy of a Terry stop, along with the possibility that the police may have alternative means to identify the suspect or achieve the investigative purpose of the stop.
Applying its test, the Grigg Court characterizes the suspected noise law offense in this case as an “exceedingly harmless past misdemeanor.” And the Court states that, instead of stopping the suspect’s car to learn his identity, the officers should have gone to the house associated with suspect’s car, as pointed out by the complainant. Also, the Grigg Court is troubled that a routine license check was not done when an officer got behind the suspect’s car. Accordingly, in light of the lack of any threat to public safety and the failure of the officers to pursue alternative available means to learn the identity of the suspect, the Grigg Court holds the Terry stop of the car to be unlawful.
Result: Reversal of federal district court (Idaho) conviction of Justin Grigg for possession of a machine gun in violation of federal law.
LED EDITORIAL COMMENTS: No Washington appellate court decision has addressed the issue decided in Grigg, and very few federal and state courts have either, though some other jurisdictions have made a similar interpretation of the Fourth Amendment. We doubt that the U.S. Supreme Court would adopt the Grigg Court’s vague totality of the circumstances test, and we would not be surprised to see the U.S. Supreme Court, despite its qualifying language in the Hensley opinion, adopt a bright line rule permitting stops for all previously committed misdemeanors. But for now, law enforcement agencies (particularly those in the Ninth Circuit, which includes agencies in Washington) must try to assess how to apply Grigg’s standard.
First, while the Grigg Court does not say so, we think that a Washington officer may stop a vehicle based on probable cause (as opposed to reasonable suspicion) for a previously committed gross misdemeanor or misdemeanor, even though, under RCW 10.31.100 or other Washington law provisions, the officer might not be able to make a lawful custodial arrest or issue a citation. The definitional line between “reasonable suspicion” and “probable cause” is not that great in most circumstances, so prosecutors may be able to make the case for probable cause when misdemeanor stops are challenged based on Grigg. We note, however, that the Grigg opinion neither (1) addresses why the Court apparently assumed that the information possessed by the officers prior to the stop did not establish probable cause (we think it did); or (2) expressly states, as a bright line rule (that is, without need to show threat to public safety), that a Terry stop may be made whenever officers have probable cause as to a misdemeanor violation.
Second, while some of the discussion in the Grigg opinion cuts against it, an argument can be made that, in RCW 10.31.100’s designation of gross misdemeanors for which custodial arrest may be made based on probable cause (even though not committed in the officer’s presence), the Washington Legislature has in effect identified the more serious gross misdemeanors for which Terry stops can be made based on reasonable suspicion of past commission.
Third, the phrase “previously committed” in the Grigg Court’s standard is not clear. Does it mean the same thing as “not committed in the officer’s presence”? It might be argued that something else is meant by the phrase, but to legally safe, officers probably should assume that is the meaning until further guidance is provided by the courts.
Fourth, it is unclear what the Court means when it says that officers should consider “the possibility that the police may have alternative means to identify the suspect or achieve the investigative purpose of the stop.” In Grigg, the officers were responding to a neighborhood dispute where it would have been easy to investigate without immediately stopping the suspect’s vehicle. No doubt there will be complaints about minor offenses where the only alternative to letting a suspected violator go on his or her way is to make the stop.