Jan
27
Supreme Court Rules on GPS Trackers: Is It 1984 Yet?
January 27, 2012 | Leave a Comment
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Supreme Court Rules On GPS Trackers: Is It 1984 Yet?
Legal Question of the Week
Vol. 5, Number 2
January 27, 2012
Brian Beasley
Guy With Two Big Brothers and Legal Adviser, HPPD
It was 1949 when George Orwell1 published his classic novel “1984” about a future world where all citizens were under constant surveillance at all times by a being called “Big Brother.” Orwell was a few decades too early,2 but I wonder what he would think of the fact that inexpensive technology now exists to enable a government to constantly track the movements of its citizens. Orwell wrote in a time where satellites orbiting the earth and phones you could carry around in your pocket were things dreamed of only in science fiction. As we enter 2012, we almost accept that the GPS features of our smartphone or the OnStar device in our car can be used to locate us at any time. Security cameras and closed-circuit video monitoring is commonplace and widespread.
Against this backdrop, our country’s courts are faced with the task of interpreting what a document written in the 18th century means when applied to technologies never envisioned by the founding fathers that wrote it and debated it. As you no doubt know by now, the U.S. Supreme Court issued a ruling this week in a case dealing with the use of GPS trackers to track a suspect for an extended period of time. In United States v. Jones,3 the Court ruled that installing a GPS tracker onto a vehicle for the purpose of obtaining information constitutes a “search” under the Fourth Amendment. Read more
- Real name: Eric Arthur Blair, born June 25, 1903 and died January 21, 1950, just seven months after 1984 was published. ↩
- I can’t fault Orwell for predicting the future would come more quickly than it actually did. Didn’t we all think we would be driving around in flying cars by 2012? I remember writing one of those “Where Will You Be in 30 Years?” papers in middle school and I thought I would be living on the moon and flying a starfighter by now. Of course, that might have had something to do with the fact that I had watched Star Wars about 30 times by then. ↩
- 565 U.S. ___ (2012). ↩
Jan
26
Cuts Like A Knife: Unreasonable Methods of Seizure
January 26, 2012 | Leave a Comment
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Cuts Like A Knife:
Unreasonable Methods of Seizure
Legal Question of the Week
Vol. 5, Number 1
January 13, 2012
Brian Beasley
Pretty Sharp Guy and Legal Adviser, HPPD
Happy Friday the 13th! I came up with two New Year’s resolutions this year: (1) keep my legal updates shorter, and (2) avoid adult oriented content of a prurient nature included solely to drive up readership. The jury is still out on #1 but I’m getting ready to break #2 and we’re not even out of January. So better luck next year, I guess. Before we go on, I’m required by law to share the following warning with you:
WARNING: THE FOLLOWING LEGAL UPDATE CONTAINS MATERIAL THAT MAY BE OFFENSIVE TO SOME BECAUSE IT DEALS WITH A CASE INVOLVING A CRIMINAL WHO CHOSE TO TIE HIS ILLEGAL DRUGS TO… WELL, LET’S JUST SAY A CERTAIN PART OF HIS ANATOMY… AS PART OF HIS WELL THOUGHT OUT CRIMINAL SCHEME.
READER DISCRETION IS ADVISED.
Now that we have everyone’s attention, let’s jump right in.
Just before the dawn of 2012, the Fourth Circuit Court of Appeals decided the case of U.S. v. Edwards,1 which arose out of a strip search2 conducted by Baltimore police officers back in 2009. On January 14, 2009, officers received a complaint that Joseph Edwards had threatened his girlfriend by brandishing a firearm. While an officer went to obtain a warrant for the assault, other officers went to look for Edwards. Detective Bailey was one of them, being familiar with Edwards and his history of using and selling illegal drugs.
At 11:15 p.m., Bailey and three other officers observed Edwards walking on a residential street. Bailey exited his car and asked Edwards to walk over to him. Bailey later testified that Edwards was not exhibiting any of the characteristics generally associated with an individual who is armed, such as clutching at his waistband. Additionally, officers had no information at this time indicating that Edwards was in possession of any drugs.
The officers detained Edwards and handcuffed him with his hands behind his back for officer safety based on the suspicion that he might be armed due to the nature of the crime they were investigating. After being informed that the arrest warrant had been issued, Bailey told Edwards that he was under arrest. He then conducted a search of Edwards but did not find any weapons or contraband.
As a transport van arrived, the officers decided to search him a second time to ensure he was not hiding any weapons. While Bailey and three other male officers surrounded Edwards, Bailey unfastened Edwards’ belt, loosened it, and pulled Edwards’ pants and underwear away from his body. The officers directed a flashlight beam inside both the front and back of Edwards’ underwear.3 When they did so, they could see a plastic sandwich baggie which contained 43 smaller plastic baggies containing crack cocaine tied in a knot around Edwards’ penis.4
After discovering the baggie, another officer held Edwards’ pants and underwear open while Bailey put on gloves, took a knife that he had in his possession, and cut the baggie off Edwards’ penis. This “procedure” was apparently done without the aid of a flashlight, although the area was illuminated by a nearby streetlight. Edwards remained handcuffed behind the back the entire time.
The Fourth Circuit held that the search was unconstitutional because the use of a knife in cutting the sandwich baggie off “posed a significant and an unnecessary risk of injury to Edwards, transgressing well settled standards of reasonableness.” As a result, the crack cocaine should have been suppressed and Edwards’ conviction was vacated.
As you no doubt know, the Fourth Amendment protects against unreasonable searches and seizures. This means that not only is probable cause required in most instances, the method and scope of the search must also be reasonable. Although it doesn’t come up as often, this requirement of reasonableness also applies to the method of seizing the evidence.
Before we get to the seizure, let’s discuss the strip search itself.5 I have previously advised you that when you need to do a strip search incident to arrest, you should do so in private rather than in a public place unless there is some overwhelming exigency requiring otherwise.6 In hindsight, it might have been better for these officers to conduct this search inside the van or perhaps find a restroom close by. Despite the fact that he was surrounded by officers so that no onlooker could see anything they shouldn’t be seeing, the court still viewed this as an invasive search done in public which cuts against a finding of reasonableness. In this case, although the court expressed concerns about the location of the search, they didn’t really rule on that issue because they were so concerned about the method of the seizure.7
As stated above, the court ruled that the drugs were removed from Edwards’ person in an unnecessarily dangerous and therefore unreasonable manner. According to the court, there were several alternatives available to the officers for removing the baggie, including untying the baggie, removing it by hand, tearing the baggie, or “requesting that blunt scissors be brought to the scene.”8 A dissenting judge pointed out that these alternatives would require that officers physically touch Edwards’ penis, which in his opinion would make them less desirable.9 I offer no opinion here, but leave it to your individual conscience to determine which of these alternatives you would select if you ever found yourself in similar circumstances. Perhaps you will want to discuss it around the water cooler in the coming weeks.10
The main lesson to take from this case is that in situations where your seizure of evidence might cause injury to a person, you must take reasonable steps to find a way of obtaining the evidence in a safe way. I also want to remind you again to be very careful when and how you do these types of strip searches. And finally, watch where you’re putting that knife!
Brian T. Beasley
Police Attorney
High Point Police Department
FOOTNOTES:
- 2011 U.S. App. LEXIS 25930 (2011). ↩
- Please don’t think me perverted because this is yet another legal update about a strip search. I’m not the one deciding which cases the Fourth Circuit or U.S. Supreme Court will hear. I also must admit that I am daily becoming more pessimistic that my plan to have these referred to as “peek-a-boo searches” will ever reach fruition. Now I know how most of the Republican candidates for the Presidential nomination feel when it starts to sink in that they are just wasting their time and money. ↩
- Peek-a-boo! ↩
- This is what you might call a plot “twist.” Also, I’ll let you come up with your own joke containing the word “package.” Just don’t send them to me. ↩
- Remember that according to the courts, any search that exposes the private parts of a person to police is termed a strip search regardless of whether clothes are actually removed. ↩
- If you don’t believe me, go back and read “Peek-a-boo Searches Revisited,” 3 L.Q.O.W. 7 (2010), page 5. ↩
- For lawyers out there who happen to read this, I need to point out that the Fourth Circuit discusses the removal of the baggie as a part of the “scope” and “manner” of the search instead of a seizure. I find it hard to see how the method of obtaining the evidence after finding it would change the scope or manner of the search that led to its discovery and so I have chosen to discuss it in terms of a seizure. As the court points out in footnote 5, this distinction doesn’t matter. ↩
- I am not making this one up. ↩
- This judge also pointed out that it shouldn’t be ignored that it was Edwards’ decision to “store” the drugs there in the first place. ↩
- My next legal update could then cover the sexual harassment policy. Here’s a preview: We’re against it. ↩
Dec
22
Weaving on a Well-deserved Holiday: When You Can Make A Stop
December 22, 2011 | Leave a Comment
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Weaving on A Well-Deserved Holiday: When You Can Make A Stop
Legal Question of the Week
Vol. 4, Number 25
December 22, 2011
Brian Beasley
Straight Shooter and Legal Adviser, HPPD
We start today’s legal update with a breaking news story out of Catawba County that comes with the proverbial “picture that paints a thousand words.”1
It seems that law enforcement officers in Catawba County were finishing up a multi-jurisdictional checkpoint in Newton, N.C. at approximately 2:45 a.m. when 21-year-old Douglas Southard drove his 1989 Chevy Camaro2 into the back of the DWI mobile command center. He was charged with (surprise!) Driving While Impaired, Driving While License Revoked, Careless and Reckless Driving, and Failing to Reduce Speed to Avoid an Accident. Fortunately for Mr. Southard, irony is not against the law. Read more
- This picture and the story behind it come from the Charlotte Observer. I was notified by one of my avid readers who believed it would fit right in with one of my very serious-in-tone legal updates. ↩
- I owned a Camaro back in the day. Thankfully, I did not own the mullet hairstyle that so often seems to go along with it. ↩
Dec
9
Who Is This Guy? No Frisking For Identification
December 9, 2011 | Leave a Comment
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Who Is This Guy?
No Frisking For Identification
Legal Question of the Week
Vol. 4, Number 24
December 9, 2011
Brian Beasley
AKA Wonder-Boy1 and Legal Adviser, HPPD
Those of us who go to work in law enforcement related fields quickly learn that people are not always who they say they are. It is not surprising that those who decide to live a life of crime might have different aliases or nicknames to help conceal their true identity. It seems to me that it has become even more common in recent years for people to simply know each other by a nickname or “street” name instead of by their real name. In fact, during one of my very first felony jury trials (a crack possession case) something akin to the following exchange took place between me and a witness: Read more
- This is a nickname that has been given to me by the Records Division here at HPPD. You might think this name would be embarrassing to me, but since many days I wake up feeling like a 70-year old, I appreciate being called a name that sounds like I could be the young lovable sidekick in a group of superheroes starring in our own 70’s Saturday morning cartoon. And I’ve been called worse, trust me. ↩
Nov
23
Mutual Aid: Pilgrims, the Wampanoag, and Thanksgiving
November 23, 2011 | Leave a Comment
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The First Mutual Aid: Pilgrims, the Wampanoag, and Thanksgiving
Legal Question of the Week
Vol. 4, Number 23
November 23, 2011
Brian Beasley
Big Turkey and Legal Adviser, HPPD
In September 1620, a small ship named the Mayflower left Plymouth, England, carrying 102 passengers. Mostly religious separatists, these pioneers were seeking a new home where they could freely practice their faith. After a dangerous crossing that lasted 66 days, they dropped anchor near the tip of Cape Cod rather than their intended destination at the mouth of the Hudson River. One month later, the Mayflower crossed Massachusetts Bay and these Pilgrims began the work of establishing a village at a brand new Plymouth.
The first winter was brutal. Most of the colonists stayed on board the ship, where many died of various diseases. Only half of the original passengers lived to see their first spring in the New World. As the settlers moved ashore, they were astonished when a visiting Abenaki Indian greeted them in the English language. This Indian would later introduce them to Squanto,1 a member of the Pawtuxet tribe, who taught the Pilgrims how to grow corn, get sap from maple trees, catch fish, and avoid poisonous plants. Squanto also helped the settlers forge an alliance with a local tribe, the Wampanoag.2 This alliance would last for roughly 50 years.3
This story of assistance between two very different groups inspired me to write this week about a subject that generates some confusion: mutual aid agreements between law enforcement agencies. Read more
- Also known as Tisquantum, Squanto had been kidnapped by an English sea captain years earlier and sold into slavery before escaping to London and then returning to his homeland on another expedition. During his captivity, he learned the English language, which would later help save the Pilgrim settlers. ↩
- In case any historians happen to read this, let me point out that the Wampanoag nation was actually an alliance of several Native American tribes, including Squanto’s Pawtuxet tribe. ↩
- Tragically, this is one of the only examples of harmonious relations between Native Americans and European colonists. ↩
Nov
11
The Cat’s Out of the Bag: Bobby v. Dixon
November 11, 2011 | Leave a Comment
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The Cat’s Out of the Bag: Bobby v. Dixon, Miranda, and Annoying Clichés
Legal Question of the Week
Vol. 4, Number 22
November 11, 201
Brian Beasley
Busy as a Bee and Legal Adviser, HPPD
It’s time to batten down the hatches and avoid blowing a fuse or a gasket. This week has brought a new U.S. Supreme Court opinion dealing with Miranda. It looks like the Supremes have climbed back in the saddle, gone back to the drawing board, and hit the nail on the head in the case of Bobby v. Dixon.1 And since the buck stops here at the legal office, I’m going to provide some food for thought so you don’t end up barking up the wrong tree.
Why all the clichés?2 In researching this case, I realized that the practice of law is inundated with these overused metaphors.3 We like to talk about fruit from the poisonous tree, for example. The cases we are going to be discussing today deal with what happens when a confession is obtained in violation of Miranda only to be followed by another confession where Miranda is followed. This type of situation has been referred to by the Supreme Court as the “cat’s out of the bag” scenario. And once you’ve broken the ice with a few of these clichés, it’s impossible to dig in your heels and go against the grain because they start coming as fast as greased lightning. So no sour grapes allowed. Read more
- 565 U.S. ___ (2011). Decided November 7, 2011. In other words, it’s hot off the press. ↩
- I’m really hoping that you noticed that there was something strange in the first paragraph or I’m going to have to reexamine how I normally write and talk. ↩
- It hit me like a hammer. A lightbulb went on in my head. ↩
Oct
28
A Halloween Story About A Frightening New Law
October 28, 2011 | Leave a Comment
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A Halloween Story about a Frightening Law: Changes to Graduated Licensing
Legal Question of the Week
Vol. 4, Number 21
October 28, 2011
Brian Beasley
Scares Pretty Easily1 and Legal Adviser, HPPD
I’m sure I have mentioned in these updates before that I am not particularly fond of Halloween. In fact, if I were ever to run for elected office, one of my top priorities would be the eradication of this so-called holiday. This has very little to do with my Christian beliefs and much more to do with the fact that Halloween brings together two of the things that irritate me the most: (1) having to come up with a creative idea for a costume, and (2) having to answer the doorbell at home.
This year, though, I have come up with the scariest costume ever – especially to a father of a young lady who is about to turn 15 and get a driver’s permit. This year I am dressing up as . . . (cue scary music) . . . a TEENAGE DRIVER!2 Read more
- The Executive Staff has been giving me a hard time this week because I have a squirrel in my attic and I am reluctant to go up there and deal with the problem. I know that squirrels are usually not that scary, but I keep picturing that scene in Monty Python and the Holy Grail where the bunny rabbit leaps through the air and bites the neck of a knight, killing him instantly. I told the Chief, “That’s no ordinary squirrel! That’s the most foul, cruel, and bad-tempered rodent you ever set eyes on!” He wasn’t buying it. ↩
- To be exact, I’m dressing up as a female teenage driver because they are even scarier than male teenage drivers. That might sound sexist to you, but that’s only because it is. It is also true. ↩
Oct
14
Happy Domestic Violence Month: Three Tools You Should Know About
October 14, 2011 | Leave a Comment
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Happy Domestic Violence Month: Three Tools You Should Know About
Legal Question of the Week
Vol. 4, Number 20
October 14, 2011
Brian Beasley
Life of the Party and Legal Adviser, HPPD
When the archaeologists of the future are studying the remains of late 20th/early 21st century civilization, one of the things we are going to be known for is our almost giddy delight in celebrating things by assigning them to days or even months. For example, October is “National Domestic Violence Awareness Month.”1 In honor of this solemn occasion, I wanted to also make you aware of three criminal laws that you might not be that familiar with that might come up in a domestic violence context.2 Read more
Sep
30
Columbo – The Sequel: Short and to the Point
September 30, 2011 | Leave a Comment
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Columbo — The Sequel: Short and to the Point1
Legal Question of the Week
Vol. 4, Number 19
September 30, 2011
Brian Beasley
Loquacious and Legal Adviser, HPPD
Those of you who have been reading my updates for a few years will hopefully remember one that I wrote in 2009 dealing with when an officer may legally ask for consent to search during a traffic stop. In that paper,2 I referred to the “Columbo Method,” which is currently taught in most traffic interdiction schools.3 The Columbo method in a nutshell goes like this: Read more
- For those that think this title predicts a short legal update, I’m afraid you are going to be disappointed. Remember the lawyer’s creed: Why say in three words what you can say in a much more confusing way using ten? I am hopeful that this won’t be another six and a half page legal treatise like my last one turned out to be. ↩
- “Cars, Consent, and Columbo,” 2 L.Q.O.W. 19 (2009). If you missed it, it is available online anyplace where fine products are sold. I mean, it’s available online in a couple of places that you’ll have to search for. For HPPD officers, it is on our network Y: drive which is always full apparently. ↩
- To avoid any of you being unduly embarrassed, I pause to once again point out that if you call this the “Columbo Method” outside of this agency, no one (absent the handful of people outside this agency that read these updates) is going to have any idea what you are talking about. I came up with this name (or stole it from a friend, I forget) in a desperate attempt to be humorous and to give you a way to remember what this method entails. ↩
Sep
9
Running and R.D.O.: The Pop Quiz You Won’t Like
September 9, 2011 | Leave a Comment
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Running and R.D.O.: The Pop Quiz You Won’t Like
Legal Question of the Week
Vol. 4, Number 18
September 9, 2011
Brian Beasley
Loves Trick Questions and Legal Adviser, HPPD
As our SRO’s are well aware, school has started back for all the sweet little innocent children (and some not so sweet, little, or innocent) so I thought this was a good time to bring back a special “pop quiz” edition of the Legal Question of the Week. Several of you had comments for me after my last pop quiz edition dealing with reasonable suspicion,1 but I thought that one might have been a little too easy. I’ll go ahead and say that this one is going to be more difficult. Read more
- Notice I didn’t say whether the comments were complimentary or not. The article was “Reasonable Suspicion Pop Quiz,” 3 L.Q.O.W. 12 (June 25, 2010). ↩
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