Police Litigation Review

U.S. Supreme Court Review for 2011

2011-12-21T13:02:00.000-08:00

It was an active year in 2011 for the Court in the area of criminal procedure and 2012 looks to bring forth at least two interesting decisions from the Court which will have an immediate impact on our nation's police officers. Click the link below for the full PoliceOne article with my review of the year's important cases for law enforcement.
http://www.policeone.com/legal/articles/4781656-2011-in-Review-7-key-decisions-of-the-U-S-Supreme-Court/
Let us remember our fallen fellow officers and service members. Tragically 2011 is ending as did 2010 as a bloody December for our nation's police officers. To all stay safe and secure this year and always.

Videotaping the Police -- A Brief Legal Analysis

2011-06-14T18:01:00.000-07:00

It seems there are more stories these days about police officers arresting citizens who videotape them in public while performing their duties. Often times the story is a follow up to the charges being dismissed and the citizen and his or her civil attorney announcing a lawsuit for false arrest. Are these arrests advisable? Are they legitimate arrests? It all depends on the grounds for the arrest and the surrounding factual circumstances. An arrest for exercising a right -- very likely a 1st Amendment right -- is not permissible, however, if in the exercise of that right a citizen violates a specific law then the arrest is for conduct other than the exercise of the guaranteed right. Still, it is dangerous ground for an officer to tread. Officers are public figures and have to be expected, in this age of advanced technology and social media, to be scrutinized more closely.

A quick legal analysis is provided at PoliceOne by clicking hte link below:

http://www.policeone.com/legal/articles/3801254-Videotaping-the-police-A-brief-legal-analysis/

Safety for cops and the community

2011-03-18T06:15:00.000-07:00

The news media is overflowing with stories out of Wisconsin, Ohio and other parts of the country placing daily blame on public sector salaries and benefits for present economic woes. Police officers are being laid off across the U.S. in numbers not seen since the 1970's. On the streets officers are being killed at alarming rates that have increased over the past two years. Where is the accountability at the local, state and federal level for officer safety?
http://www.policeone.com/patrol-issues/articles/3439420-Accountability-and-officer-safety-Whos-got-our-backs/

Police Memorial

2011-03-18T06:06:00.000-07:00

R.I.P. Detective Falcone, City of Poughkeepsie P.D., killed in the line of duty, February 18, 2011.
http://www.policeone.com/patrol-issues/articles/3385216-Mourning-our-slain-LEOs/

The Art of Testifying

2011-02-12T14:36:00.000-08:00

Say what you will but no matter how good a police officer may think he or she is at their job they are only as good as their last conviction. If an officer does not know how to work with the district attorney's office, how to handle pesky defense attorneys on cross-examination and how to deliver their testimony then they have only half of the job figured out. Testifying in court and being comfortable while doing so is a learned and acquired skill. Too many officers do not take the time to improve this crucial job skill. The link below is to a recent article for PoliceOne I wrote. It is not meant to be inclusive but just to highlight some important aspects of the art of testifying.

http://www.policeone.com/legal/articles/3325033-4-keys-to-success-on-the-stand/

Use of Force Policy Implementation

2011-01-31T07:18:00.000-08:00

http://www.policeone.com/legal/articles/3199248-Key-considerations-for-good-use-of-force-policies/

As always the use of force remains the number complaint against police officers and the main source of departmental liability. When a critical incident occurs or a lawsuit is filed agency administrators do not want to be scrambling to up date use of force policy. By having sound, current policy in place administrators can be confident their officers will respond properly and be protected in the aftermath.

Cop Bashing Without All the Facts

2011-01-31T07:14:00.000-08:00

http://www.policeone.com/legal/articles/3257436-The-legal-system-versus-inflammatory-rhetoric/

All too often now we witness zealous plaintiff's attorneys jumping on the anti-police bandwagon without sifting through the facts. Trials are held in the media and facts are distorted. The full range of facts on this NYPD case are not all disclosed yet -- maybe the officers were wrong in their behavior and then maybe they were not. But it is not a matter to be tried in the press.

Arizona 1070 ruling

2010-08-10T08:47:00.000-07:00

The U.S. District Court in Arizona blocked implementation of a portion of the controversial Arizona bill 1070 dealing with illegal immigration. The decision by Judge Bolton is not surprising, it is in fact expected based on prior federal and U.S. Supreme Court precedent. But this is a controversial and emotion laden issue whic has many in law enforcement divided. Immigration policy and enforcement is the sole province of the federal government. Any state or local government initiative seeking to create immigration policy or control immigration violates the Supremacy Clause to the U.S. Constitution. But, unfortunately, the federal government has failed miserably in carrying out its constitutional imperative. The burden of failed immigration policy and control is then placed on the states and often local law enforcement is the front line in dealing with the poverty, crime and enforcement issues created by the federal failure.
I have previously written on this issue and the Catch-22 situation that police officers are placed within. Police resources are already drained in this economy and added responsibilities sought by the federal government to be placed on local police for immigration enforcement and homeland security measures further strains these resources.
On the side bar is a brief analysis PoliceOne asked me to complete in connection with the ruling on the day it was released. I have included additional links to prior articles I have written on this issue.

http://www.policeone.com/drug-interdiction-narcotics/articles/1856910-Immigration-enforcement-by-local-police

http://www.ethicsinpolicing.com/EiPJournal2009Vol2No1.pdf

Critical comment and whistleblowing by police officers

2010-04-09T12:38:00.000-07:00

http://www.policeone.com/legal/articles/2035292-The-legal-landscape-of-police-employee-free-speech/

The issue of a police officer's right to speak freely about work related issues has always been limited but the aftermath of the 2006 U.S. Supreme Court decision in Garcetti v. Ceballos has brought about some unintended results within the various federal circuits. My latest PoliceOne.com article, at the above link, discusses some of these issues and the danger that police speech relating to misconduct may be "chilled" by the present state of the law. This is an issue I have discussed with various officers around the country and one which needs to be remedied by the courts.

Pitfalls in social networking sites for police officers

2010-02-22T19:08:00.001-08:00

The U.S. Supreme Court agreed this past term to hear an appeal from the 9th Circuit Court of Appeals in Quon v. Arch Wireless. At issue is the extent of the privacy rights a public employee has in text messages sent over his department issued pager. The 9th Circuit found that Sgt. Quon, a member of the Ontario, California Police Department, had a reasonable expectation of privacy in the the text messages he sent from his department issued pager based on the past practice of his paying for any charges and fees in excess of those covered by his employer. As anticipated as this decision may be, especially for those of us working within the field of law enforcement representation and employment law, it highlights a growing trend among police in the United States. That trend is the increased frequency with which officers are being disciplined or finding themselves at the wrong end of a department policy based on their use (or actual misuse) of electronic media. Specifically social networking sites such as Facebook, Myspace and Twitter have caused some unexpected problems for officers. This trend just follows earlier internet related disciplinary run-ins resulting from officer blogs, viewing of internet pornography sites and officer websites displaying questionable material in terms of taste and propriety. While the viewing of prohibited internet sites from the workplace is a cause for employer discipline of an employee in both the public and private sector the issues surrounding social networking sites may be a bit more muddled. As a generation of new officers who have grown up with access to these social networking sites enter the ranks they are less inclined to see the problem with social networking sites and employer placed limits on their off-duty use. Just as a prior generation of officers were forbidden to frequent certain establishments when off-duty a new generation of officers may be precluded from their activity on the internet.

One agency in New York State has sought to define these limits by enacting a policy for an officer's use and postings on social networking sites. City of Utica Police Chief Mark Williams has crafted a use policy that focuses on protecting the reputation of the department and the individual officer. An ex-con arrested in NYC for possession of a weapon was able to have charges dismissed by using the arresting officer's MySpace and Facebook statuses against him. At the criminal trial NYPD Officer Vaughan Etienne was questioned by defense counsel as to why his Facebook status as the trial neared had him "watching 'Training Day' to brush up on proper police procedure." He further had to explain why his MySpace page was set to the mood of "Devious" on the day of the arrest. The officer also had to explain comments he made on a video about using excessive force on suspects. This officer, as reported in the Gothamist, had a prior suspension for steroid usage. The suspect alleged the officer planted the gun found on him and with the help of the officer's online postings was able to convince a jury. Incidents such as that which occurred to NYPD Officer Vaughan Etienne are not only an embarassment to the officer but a compromise of the integrity of police work. Police departments across the country are looking to implement departmental policies on officer use of social network sites. Other have already done so such as the City of Utica Police Department and more recently the Minneapolis Police Department. A copy of the MPD policy adopted this past December is provided at the end of this post.

So what are the limits that a police department can place upon its officers? A police department can regulate officers as it determines is necessary to accomplish agency mission and service goals. Court challenges to this authority is seldom successful. In Kelley v. Suffolk County Police Department, 425 U.S. 238 (1975) the U.S. Supreme Court recognized a municipality’s right to “organizational structure for its police force,” structure which “gives weight to the overall need for discipline, esprit de corps, and uniformity.” In this context a police agency can regulate officer conduct, even off-duty conduct, that may discredit the agency or negatively impact an officer's ability to do his/her job.

U.S. agencies and administrators do not hold exlcusive claim to such disciplinary problems within the ranks. A January 2010 article in the online version of the London Daily Mail reported a number of British officers disciplined or fired for looking at pornographic website while on-duty. This report was followed by a February report in the online ZDNet UK that Ministry of Justice and Metropolitan Police have been suspended or fired for misuse of Twitter and Facebook accounts. Scotland Yard responded by issuing a guide for officers on the use of such sites. One of the rules is for officers not to identify themselves as police employees, the other is that if they do identify themselves as officers they are to disclaim that their views do not reflect those of the employer. In the U.S. many officers rely on the First Amendment right to free speech and their off-duty status as protection from any job action. This reliance however is often misplaced and is likely moreso in light of the U.S. Supreme Court ruling in Garcetti v. Ceballos, 547 U.S. 410 (2006) which put further limits on a public employees free speech and narrowly defined the contours of that speech.

Police administrators are well advised to adopt a social networking policy if they have not already started to do so. Police officers are advised to keep content unobjectionable at the least but would be better off staying clear of online postings and video rants. The democratization of media use has created a "big brother" of monstrous proportions and it is a trap for the careless officer.

MINNEAPOLIS POLICE DEPARTMENT SOCIAL NETWORKING POLICY
Section 7-119 SOCIAL NETWORKING (12/15/09)I. PURPOSETo establish policy regarding employee use of social networking web sites.
II. DEFINITIONS
Social Networking Websites: Sites which focus on building online communities of people who share interests and activities and/or exploring the interests and activities of others. Examples of social networking websites include: Facebook, MySpace, Friendster, Linked In, Twitter, and sites that allow users to post personal blogs. The absence of, or lack of explicit reference to, a specific site does not limit the extent of the application of this policy.
III. POLICY
The MPD has a duty to protect the reputation of the organization and its employees, as well as guard against liability and potential legal risk. Therefore, MPD reserves the right to monitor these websites, and employees are advised of the following:
Employees should exercise caution and good judgment when social networking online. Employees should be aware that the content of these social networking sites can be subpoenaed and used in criminal and civil trials to impeach the employee’s testimony.
Any individual who can be identified as an employee of the MPD has no reasonable expectation of privacy when social networking online, and is subject to all pertinent City of Minneapolis policies, MPD policies, local, state, and federal laws regarding public information on arrests, investigations, and personnel data.
This policy supplements the City of Minneapolis’ Electronic Communications Policy.
IV. PROCEDURE / REGULATIONS
A. Failure to comply with the following may result in discipline, up to and including discharge:
Where the poster can be identified as an employee of the MPD, any postings involving offensive or unethical content are not permitted.
Employees shall not represent that they are speaking or acting on behalf of the MPD, or that they are representing or presenting the interests of the MPD.
Employees are prohibited from using social networking sites to harass or attack others, including those who work for the MPD.
B. Authorized exceptions to the above regulation include utilizing social networking websites for MPD-approved public relations and official investigative and/or work-related purposes as approved by Police Administration.

9th Circuit taser decision: thoughts & concerns

2010-01-31T10:15:00.001-08:00

On December 28, 2009 the 9th Circuit Court of Appeals issued its decision in Bryan v. McPherson, No. 08-55622, which some media sources cited as a monumental repudiation of the police use of Tasers. Quite the contrary the 9th Circuit followed previously established law and precedent. What is of note from the decision is the different standard from other federal court circuits the 9th Circuit employs in considering use of force issues. While the standard for the reasonableness of the use of force is considered under the framework established by the U.S. Supreme Court in Graham v. Connor, 490 U.S. 386 (1989) the 9th Circuit has modified the considerations. First let's discuss the Graham standard, which is that use of force claims are to be evaluated under the 4th Amendment's "reasonableness" inquiry. In assessing reasonableness the question to be resolved is whether the officer's actions were "objectively reasonable" in light of the facts and circumstances confronting the officer. Subjective motivations or intent of the officer have no bearing, it is a purely objective test. Relevant factors in this inquiry are the following: 1) severity of the crime being investigated; 2) is the suspect an immediate threat to the safety of the police or others; 3) is the suspect actively resisting arrest or attempting to avoid arrest by fleeing. The 9th Circuit modification also considers the amount of force used and the availability of alternative methods of subduing or capturing the suspect (see eg., Beaver v. City of Federal Way, 507 F. Supp.2d 1137 (WD Wa, 2007)). This is not an analysis of the use of force employed by all federal circuit courts and an issue which becoming ripe for Supreme Court review. Nonetheless, there are aspects of the Bryan decision which concern me. At the outset I want to deal with the opinion itself and the perpetuation of two myths the 9th Circuit has signed onto. On page 16745 of the opinion the court cites the fact of the suspect Mr. Bryan being struck on the side of the arm and back and then falling away from the officer as indicative of the non-immediate nature of the threat. Does this mean that in the moment before the officer fired the taser round the suspect could not have been approaching? That there is no difference in offender position and location prior to expelling a round and after the round is spent? There have been many cases of officer involved shootings with offenders sustaining wounds in the back which activists and defense attorneys attempt to use to contradict officer testimony of the immediacy of a threat. Often the result has been proof at trial that the officer's testimony was truthful and the offender facing the officer only to turn in reaction to or flight from the lawful use of force by the officer. The other exception I take with the 9th Circuit is the 20/20 hindsight the court resorts to on page 16753 when it describes Mr. Bryan as a non-dangerous felon or flight risk. This is not employing the detached calculus called for in Graham with a view of the facts as seen from a reasonable officer at the scene. It is evident from the facts presented in the opinion that Officer McPherson was confronted with an individual on a car stop who exited his vehicle in a distraught state, began talking to himself, cursing to himself while hitting his thighs all the while clad only in sneakers and boxer shorts. What was a reasonable officer at the scene to assume? That Mr. Bryan was just like any other individual out on a drive that Sunday morning? The question I have for Justice Wardlaw, the opinion's author, is whether taking the same set of facts and Mr. Bryan was acting as such but standing in front of Justice Wardlaw's house would he call the police? If so what would be his motivations, or more specifically, what objectively reasonable conclusion would he have made of Mr. Bryan's actions? These above two items are just my criticism of judicial overreaching with the facts of the case. Minor as they may seem they are often the type of second-guessing that can have officers on the defensive, whether as a civil defendant or criminal defendant.

This case is a federal civil rights lawsuit brought under Title 42 US Code section 1983. The appeal to the 9th Circuit resulted from a denial of Officer McPherson's summary judgment motion based on qualified immunity. The concept of qualified immunity is not foreign to most officers. It provides relief from liability if the officer's conduct does not violate clearly established constitutional or statutory rights of which a reasonable person would be aware (see eg., Harlow v. Fitzgerald, 457 U.S. 800 (1982)). The 9th Circuit opinion paved the way for Mr. Bryan's case to proceed to trial wherein a jury will decide whether Officer Mc Pherson used excessive force. The 9th Circuit, viewing the facts in the light most favorable to the plaintiff, ruled that as a matter of law if the facts are as alleged the conduct of the officer would be viewed as excessive. Summary judgment assumes no facts are in dispute and requires a decision based solely on an issue of law. Officer McPherson's actions may still be found justifiable and not civilly liable by a jury. The issue that remains is not the isolated questions remaining to be resolved in this case but the longer term effect of this and other use of force decisions involving ECD's (electronic control devices). Officers are aware their use of force may entail civil liability and that the spectre of criminal liability looms with questionable use of force scenarios. The 9th Circuit opinion and the seemingly increasing negative response to taser use should have training academies and in-service instruction focusing on the legal as much as the technical aspects of taser usage. Labeling a device a less than lethal force alternative may provide a comfort zone for officers that makes taser use commonplace. The courts have been clear that use of a taser is not excessive use of force. They have even held taser application to be a minimal use of force compared to physical confrontation. But the issue remains that as long as a taser is on an officer's duty rig the potential for claims of wrongful use are as live as the current emanating from the device. The claims of excessive use of force are more problematic with ECD's than firearms for the simple fact that they are considered a less than lethal alternative and their use is more frequent.

Fear and Loathing: Internal affairs and due process

2010-01-06T19:47:00.000-08:00

Here's an imaginary scenario that isn't so imaginary. A police officer is falsely accused by supervisors of a crime which is a total fabrication. The officer is formally charged administratively, fights the charges, wins and is subsequently vindicated in an external administrative proceeding. The officer sues in federal court for civil rights violations and after being stonewalled in discovery by the attorney general's office (those who represent the officer's employer and supervisors) the officer gets to depose his internal affairs tormentors. Now for the interesting part, one of the IA investigators testifies to destroying files associated with the investigation and the resulting lawsuit. When confronted with the agency's rule and regulations pertaining to reports and retention policy the IA investigator testifies that the rules apply to field officers not internal affairs investigators or supervisors. This is confirmation of what so many cops have been saying for years, IA operates under a different set of standards and rules. Due process rights for police officers have suffered serious infringements in many jurisdictions as a result of the behavior of self-righteous, crusading internal affairs personnel who eschew proper constitutional procedure and engage in "means-end" justifications. It is a case of "nobler-noble cause" corruption which is deserving of closer scrutiny. Just as the concept of prosecutorial misconduct was unheard of three decades ago and is now at the forefront of criminal justice discussions, due process violations by internal affairs investigators are coming more to the open. So too has the unscrupulous acts of some IA officers infected the overall process of internal affairs investigations. While internal affairs is a necessary element of policing and an integral part of the command structure abuses of officers' rights have resulted. As the U.S. Supreme Court stated in Garrity v. New Jersey police officers are not subjected to a "watered down" version of due process.

So, back to my not so fictional officer, what is his recourse? There is the possibility of a civil tort lawsuit based on defamation. If the defamatory comments (libel if written, slander if oral) are communicated to a third party then that may be the basis for a cause of action. Certainly any individual officers or investigators involved in the defamation or its perpetuation can be held accountable. Officers are now resorting to civil rights law suits against their employers and individual actors based on 42 USC section 1983. While these cases have become more commonplace as they are brought by officers against their agencies, supervisors and co-workers, many are dismissed on summary judgment motions. Careful attention must be paid as to whether federal court and a constitutionally based civil rights cause of action is the best choice of forum and complaint.

Within the realm of constitutional violations committed against officers during the course of an internal investigation the 6th Circuit Court of Appeals gave us an interesting case a few years ago. In McKinley v. City of Mansfield, 404 F.3d 418 (6th Cir., 2005) the court found that a second interview of an officer in violation of the ruling in Garrity could be the basis for an actionable constitutional violation since the results of that interview were admitted into evidence against the officer in a criminal trial. Similar results have been followed in other circuits based on McKinley, though applied in a different context (see eg., Sornberger v. City of Knoxville, Illinois, 434 F.3d 1006). But prior to McKinley the U.S. Supreme Court in Chavez v. Martinez, 538 U.S. 760 (2003) held that section 1983 is not an avenue to provide relief from the simple failure to provide a Miranda warning, especially in that case wherein none of the defendant's statements were used in a criminal proceeding against him. The McKinley court, applying the logic to Garrity in place of Miranda, clearly distinguished the fact that the product of the second internal affairs interview of Officer McKinley was used at trial against him, thus raising the potential constitutional injury.

However, in order to recover damages for an alleged unconstitutional conviction or imprisonment a section 1983 plaintiff must prove the conviction or sentence was reversed on direct appeal, expunged or declared invalid, Heck v. Humphrey, 512 U.S. 477 (1994). A similar rationale would appear to apply to disciplinary charges. The bottom line is that officers have due process protections, though somewhat minimized in the disciplinary context, that should be carefully fought for and guarded. Further, when confronted with a disciplinary interview officers must insist on representation whether it be pursuant to state law, contract or collective bargaining agreement. We know from experience there is no bounds to the extent some individuals will go to make a case, especially against an officer.

4th Amendment "emergency exception" clarified

2009-12-31T09:59:00.000-08:00

On December 7 the U.S. Supreme Court in a per curiam opinion overruled a Michigan Court of Appeals decision which found officers had committed a Fourth Amendment violation after responding to a disturbance call of a man “going crazy.” The officers were dispatched to the Brownstown, Michigan residence and found a damaged pickup truck in the driveway with blood on the hood, damaged fence posts and broken house windows. Upon looking inside the home the officers saw Jeremy Fisher screaming and throwing objects. A knock on the door by the officers yielded no response. Eventually the officers were able to talk to Fisher from outside the house. He had a cut on his hand and they inquired as to if he needed medical attention. Fisher remained out of control, cursed at the officers and told them to get a warrant. One of the officers pushed open the front door, went part way into the house and saw Fisher with a rifle pointed at the officer. Fisher was eventually arrested for assault with a weapon and possession of a weapon. The evidence was suppressed at trial, upheld on appeal and let stand by the Michigan Supreme Court which denied leave to appeal. In overruling the Michigan court the U.S. Supreme Court in Michigan v. Fisher, 09-91, 12/07/09, clarified its prior decision in Brigham City v. Stuart, 547 U.S. 398 (2006) which identified an “emergency aid exception” to the Fourth Amendment warrant requirement. The Supreme Court acknowledged the “presumptive unreasonableness” of any police entry into the home without warrant but pointed out that the Fourth Amendment operates on a standard of reasonableness. The Court in Brigham City recognized the need for law enforcement to assist individuals in emergency situations and to enter a home without a warrant. The Michigan Court of Appeals erred by substituting the judgment made by the officer at the scene with its own determination of the level of emergency. Additionally, Fisher had argued that the failure of police to summon emergency medical help negated their claim of an emergency exception. The U.S. Supreme Court reiterated its prior determinations that an officer’s subjective intent has no basis in Fourth Amendment review, rather the standard being one of objective reasonableness. Hence, based on the information and circumstances confronting the officers at the time of their response to Fisher’s residence the inquiry is whether there was an objective reasonable basis for the officers to believe Fisher may have been in distress and needed assistance.

Attorney representation

2009-12-06T08:58:00.000-08:00

In Falk v. Chittenden, 11 N.Y.3d 73, 862 N.Y.S.2d 839 (2008), the NYS Court of Appeals held that disqualification of an attorney representing a police officer in a disciplinary action was warranted when the officer's attorney previously represented the police supervisor bringing charges against the officer. Sounds reasonable enough except there is more to the story; the attorney was previously consulted by the supervisor regarding accusations the police officer made to municipal officials about him. The police supervisor met with the attorney and provided confidential paperwork to the attorney regarding the dispute with the officer. When the supervisor eventually filed charges against the officer the attorney he previously met with was at the disciplinary hearing representing the officer. The Court of Appeals, in referring to the Disciplinary Rules, pointed out that the prior relationship on substantially related matters and the "materially adverse" interests of the two clients created a conflict.

Sarbanes-Oxley and Officer's False Statements

2009-11-22T12:54:00.000-08:00

Last May the U.S. Court of Appeals for the 11th Circuit affirmed the conviction and ten month sentence of a police officer who was charged under Title 18 USC section 1519 for making a false entry in a police incident report. The significance of the case rests in the officer's argument on appeal as to the applicability of the statute which was passed as part of the Sarbanes-Oxley Act aimed at corporate fraud and corruption. While the court in U.S. v. Hunt, 526 F.3d 739 (11th Cir, 2008) the usefulness of that section of the Sarbanes-Oxley Act in combatting corporate crime the court held the statute had broad applicability. There is no safe haven for a police officer who lies in the course of their duties, especially when that lie is material to an investigation, and this statute provides another tool in a federal prosecutor's arsenal. Section 1519 provides as follows: Whoever knowingly alters, destroys,mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence, the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States..., or in relation to or contemplation of any such matter or case, shall be [in violation of this statute.]
The U.S. Supreme Court has stated on numerous occasions that false statements are not to be given sanction under the law. In Nix v. Whiteside, 475 U.S.157 (1986) the Court held that the right to testify did not include the right to commit perjury. Further, in 1998 the Court rejected the due process challenge made by an employee who lied during an internal work related investigation and was disciplined, (LaChance v. Erickson, 522 U.S. 262). The Court said the due process right to notice and an opportunity to be heard provided for in Cleveland Board of Education v. Loudermill, 470 U.S.532 (1985) does not include the right to make false statements.

U.S. Supreme Court Limits Vehicle Search Incident to Arrest Rule

2009-11-15T09:07:00.000-08:00

On April 21st the U.S. Supreme Court issued its ruling in the case of Arizona v. Gant and in doing so sustained the holding of the Arizona Supreme Court. In this case the defendant after being stopped and arrested for driving with a suspended license was handcuffed and placed in the rear of a police vehicle. The police proceeded to search his vehicle and recovered cocaine in a jacket pocket. The U.S. Supreme Court agreed with the Arizona court that Gant was not within a reachable distance of the vehicle from which he could gain a weapon, thereby limiting the Court's prior holding in New York v. Belton, 453 U.S. 454 (1981). Additionally, the Court indicated that its prior holding in Thornton v. United States, 541 U.S. 615 (2004), that search of an arrestee's vehicle is proper if it is reasonable to believe the vehicle contains evidence of crime for which the driver was arrested, is of no help to the Arizona officers. In the Gant case the Court said it was not reasonable for the officer's to believe any evidence of the driving without a license offense would be retrieved from Gant's vehicle.
While this case limits the application of Belton it does not foreclose other lawful means for officers to search vehicles without a warrant, such as upon consent, an inventory, a Terry frisk, or under exigent circumstances. Certainly the legal justification for the search incident to arrest pursuant to Belton remains if the offender is still within reachable distance of the interior of the vehicle and it is reasonable that access to a weapon may be had. If there is reason to believe evidence of the offense resides in the vehicle then Thornton controls.