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HomeMy Public PortalAboutPRR 15-1958RECORDS REQUEST (the "Request") Date of Request: 10/7/15 Requestor's Request ID#: 1132 REQUESTEE: Custodian of Records Town of Gulf Stream REQUESTOR Commerce Group, Inc. REQUESTOR'S CONTACT INFORMATION: E -Mail: records@commerce-group.com Fax: 954-360-0807 or Contact Records Custodian at records(n),commerce-eroup.com: Phone: 954-360-7713; Address: 1280 West Newport Center Drive, Deerfield Beach, FL 33442 REQUEST: Provide all documents demonstrating training (including without limitation, training courses, training books, pamphlets and other writings) applicable to Chief Ward. since January 1. 2013 through October 7, 2015 which are in possession of the Town of Gulf Stream. ADDITIONAL INFORMATION REGARDING REQUEST: The term "Town of Gulf Stream" shall mean each of the following: the Town of Gulf Stream. its Commissioners. its Manager, its emplovees, its Police Department, its Police Officers and its Counsel (including, without limitation, the following law firms) Sweetanule. Broeker & Varkus; Richman Greer. PA: and Jones, Foster, Johnston & Stubbs. (including, without limitation, the attorneys, employees and partners of each such law firm.) THIS REQUEST IS MADE PURSUANT TO ARTICLE L SECTION 24 OF THE FLORIDA CONSTITUTION AND CHAPTER 119, FLORIDA STATUTES IF THE PUBLIC RECORDS BEING SOUGHT ARE MAINTAINED BY YOUR AGENCY IN AN ELECTRONIC FORMAT PLEASE PRODUCE THE RECORDS IN THE ORIGINAL ELECTRONIC FORMAT IN WHICH THEY WERE CREATED OR RECEIVED. SEE 4119.01(2)(F). FLORIDA STATUTES. IF NOT AVAILABLE 1N ELECTRONIC FORM, IT IS REQUESTED THAT THIS RECORDS REQUEST RE FULFILLED ON I I X 17 PAPER. NOTE: IN ALL CASES (UNLESS IMPOSSIBLE) THE COPIES SHOULD BE TWO SIDED AND SHOULD BE BILLED IN ACCORDANCE WITH Section 119.07(4) (a) (2) ALSO PLEASE TAKE NOTE OF M 19.07(I)(H) OF THE FLORIDA STATUTES. WHICH PROVIDES TILT"IF A CIVIL ACTION IS INS'ri'rUTED WITHIN THE 30 -DAY PERIOD TO ENFORCE TIIE PROVISIONS OF TIIIS SECTION WITH RF.SI'ECT TO THE REQUESTED RECORD, THE CUSTODIAN OF PUBLIC RECORDS MAY NOT DISPOSE OF T'HE RECORD EXCEPT BY ORDER OF A COURT OF COMPETENT JURISDICTION AFTER NOTICE. TO ALL AFFECTED PARTIES'." ALL ELECTRONIC COPIES ARE REQUESTED TO BE SENT BY E-MAIL DELIVERY. PLEASE PROVIDE THE APPROXIMATE COSTS (IF ANY) TO FULFILL THIS PUBLIC RECORDS REQUEST IN ADVANCE. It will be required that the Requester approve of any costs, asserted by the Agency (as denned in Florida Statute, Chapter 119.01 (Definitions)), in advance of any costs Imposed to the Requester by the Agency. "BY FULFILLING THIS RECORDS REQUEST, THE AGENCY ACKNOWLEDGES THAT THE RESPONSIVE DOCUMENTS ARE "PUBLIC RECORDS" AS DEFINED IN CHAPTER 119, FLORIDA STATUTES". I/P/NP/FLRR 07.28.2015 + W W W W W N N W N " O\ 0 W W W Q m Z W . . 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Krischer, Editor License Plate Reader Officer Jennifer Hendricks was driv- ing her patrol car when its license plate recognition ("LPR") system gave an alert about a nearby car. The LPR system scans the license plates of cars that are within range of cam- eras mounted on the patrol car and can generate an alert if a scanned car is connected to a wanted person. The alert showed Officer Hendricks that a man named Otis Hicks was associated with a nearby car and was wanted for fust -degree domestic assault. The alert also said that Hicks may be armed and dangerous. Im- portantly, the LPR alert did not pro- vide any information as to how or when Hicks was associated with the car in question. After pulling the car over, Officer Hendricks approached the driver's side and saw two men inside. She asked the driver for his license, which identified him as Otis Hicks. Upon his arrival as backup, Officer Christensen asked the passenger, Lawrence Williams, to get out of the car and present identification. Ac- cording to Christiansen, Williams patted his waistband two times while getting out of the car and Williams's hands were shaking uncontrollably as he retrieved his identifica- tion. Officer Christensen handcuffed Williams and conducted a pat -down search for weapons. He felt what he recognized to be a firearm and re- moved a handgun from Williams's waistband. After finding the hand- gun, Officer Christensen found a bag containing heroin. Prior to trial Williams filed a mo- tion to suppress the seized items ar- guing the officer did not have rea- sonable suspicion to effect the vehi- cle stop. The magistrate denied his motion. On appeal the U.S. Court of Appeals agreed, and sustained the conviction. Issue: Did the LPR "hit" provide the officer with reasonable suspicion to effect a lawful vehicle stop? Yes. Investigative Stop: Stopping an automobile and detain- ing its occupants constitute a "seizure" within the meaning of the Fourth Amendment. Delaware v. Prouse, (S.Ct.1979). "Che essential purpose of the proscription in the Fourth Amendment is to impose a standard of 'reasonableness' upon the exercise of discretion by a gov- emment official in order to safeguard the privacy and security of individu- als against arbitrary invasions:' "Che permissibility of a particular law enforcement practice is judged by balancing its intrusion on the indi- vidual's Fourth Amendment interests against its promotion of legitimate governmental interests." The reason - officers; should consult with their agency advisors to confirm the interpretation provided In this pubficahon and to what extent It will affect their actions. Past Issues of the Legal Eagle are available at IISA15.org under "Resources." ableness standard usually requires that the facts upon which an intru- sion is based be capable of measure- ment against an objective standard am no reported federal decisions that have specifically dealt with the use of an LPR system in the Fourth Amendment context. However, as liams asserts, without citation, that Officer Hendricks must 'have [had] some idea at least that there [was] a black male driving the car' before such as probable cause or a less strin- we have held, 'if a flyer or bulletin making the traffic stop. Officer Hen - gent test such as reasonable suspi- cion. Accordingly, the Supreme Court has held that it is a violation of the Fourth Amendment to stop an automobile and detain a driver to check his license and registration unless "there is at least articulable and reasonable suspicion that a mo- torist is unlicensed or that an auto- mobile is not registered, or that either the vehicle or an occupant is other- wise subject to seizure for violation of the law." See, Prouse. Police may make an investigatory stop if they have reasonable suspi- cion that a suspect has committed, is committing, or is about to commit a crime, based on the totality of the circumstances. Popple v. State, (Fla. 1993). Reasonable suspicion is more than a mere hunch, but specific and articulable facts, together with the rational inferences from those facts, that reasonably wan -ant the investi- gatory stop. Court's Ruling: "Officer Hendricks relied upon the notice from the LPR system that: (1) Hicks was associated with a nearby car, (2) Hicks was wanted by the St. Louis County Police Department for first-degree domestic assault, and (3) Hicks may have been armed and dangerous. Williams nonetheless argues that Officer Hendricks did not have reasonable suspicion to conduct the traffic stop because a'police of- ficer who receives an alert from the LPR system has no way of knowing the extent of the person's relation- ship to the vehicle.' Williams and the Government seem to agree that there has been issued on the basis of artic- dricks testified that she was unable to ulable facts supporting a reasonable suspicion that the wanted person has committed an offense, then reliance on that flyer or bulletin justifies a stop to check identification, to pose questions to the person, or to detain the person briefly while attempting to obtain further information.' 'Police officers may rely upon notice from another police department that a person or vehicle is wanted in con- nection with the investigation of a felony 'when making a Terry stop, even if the notice omits the specific articulable facts supporting reasona- ble suspicion.' " "We fail to see how the use of the LPR system makes any difference in this case. Williams does not cite any precedent holding that the mecha- nism through which an officer re- ceives notice from another depart- ment matters for Fourth Amendment purposes. Indeed, the LPR system merely automates what could other- wise be accomplished by checking the license -plate number against a 'hot sheet' of numbers, inputting a given number into a patrol car's computer, or 'calling in' the number to the police station. Thus, we con- clude that Officer Hendricks was entitled to 'rely upon notice from another police department,' she ob- tained by using a more automated process: the LPR system. 'Williams argues further that Of- ficer Hendricks's stop violated the Fourth Amendment 'because she could not tell who was driving the car until after she stopped it.' Wil - see who was inside the car until after she stopped it. Common sense dic- tates that police officers will often be unable to confirm the race or gender of a driver before initiating a traffic stop. Accordingly, we fail to see how Officer Hendricks's decision to briefly stop the car and check the driver's identification was an unrea- sonable seizure in violation of the Fourth Amendment merely because she initially could not identify the driver's race or gender. G G1 e fail to see how the use of the LPR system makes any difference in this case. Williams does not cite any prece- dent holding that the mechanism through which an officer receives notice from another department matters for Fourth Amendment purposes." was 'perhaps associated with the car' but nonetheless argues that the stop violated the Fourth Amendment be- cause Officer Hendricks 'had no information of the time frame of when Hicks had been associated with the car.' But our precedent makes clear that 'officers may rely upon notice from another police depart- ment that a person or vehicle is want - October 2015 ed in connection with the investiga- tion of a felony 'when making a Terry stop, even if the notice omits the specific articulable facts support- ing reasonable suspicion.' Accord- ingly, this argument is without merit. Affirmed." Lessons Learned: It is important to note that despite the fact that Williams was merely a passenger in I$cks' vehicle, he still had standing to challenge the vehicle stop. The U.S. Supreme Court has recognized that a passenger is seized when the vehicle he is in is subject to a police stop. The Court stated that a lawful auto stop begins when a vehi- cle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passen- gers ordinarily continues, and re- mains reasonable, for the duration of the stop. A reasonable passenger would understand that during the time a car is lawfully stopped, he or she is not free to terminate the en- counter with the police and move about at will. Arizona v. John. son, (S.Ct. 2009). In a case of similar facts, Ellis v. State, (2DCA 2006), the officer testi- fied that she randomly entered vehi- cle tags into her on -board computer as she patrolled. On this occasion she received back from DMV, "no rec- ord found." Based on that response she effectuated a traffic stop. She acknowledged at the motion to sup- press that there had been occasions when she had stopped cars on the basis of a "no record found" re- sponse and found that the car was properly registered. She further testi- fied that "that's why you conduct the stop to see the paper registration, to verify the paper." The defendant argued that because there was a pos- L[O8L rAQL[ sible innocent explanation the stop was unlawful. The D.C.A. disagreed: "Officer Wilson actually had infor- mation indicating that the Depart- ment of Motor Vehicles had no rec- ord of the tag, which in light of her experience gave her a reason to sus- pect that the car was not properly registered or that there was 'something wrong' with the tag... Officer Wilson was justified in stop- ping Ellis to investigate after having received information that indicated that the Department of Motor Vehi- cles had no record of the tag affixed to Ellis's car." oyo\ IELE" AELE Law Enforcement Legal Center P.O. Box 75401 Chicago, IL 60675.5401 USA Tel. 1(847) 685-0700 Fax 1 (847) 685-9700 E-mail: info@aele.org "Ellis argues that Officer Wilson did `Building Integrity and confidence not have a reasonable suspicion be- cause she admitted that there had been occasions when she had re- ceived the 'no record found' re - sponse and then on further investiga- tion determined the car was properly registered. 'Even in Terry the con- duct justifying the stop was ambigu- ous and susceptible of an innocent explanation.' Illinois v. Wardlow, (S.Ct.2000). Terry does not require absolute certainty nor does it require an officer to ignore facts that indicate an individual may be committing a crime simply because those facts do not rise to the level of probable cause to make an arrest. Where the facts known to an officer suggest, but do not 'necessarily' indicate ongoing criminal activity, an officer is enti- tled to detain an individual to resolve the ambiguity. See, Wardlow." "Accordingly, we conclude that the trial court correctly denied Ellis's motion to suppress." U.S. v. Williams U.S. Court of Appeals - 8th Cir. (Aug. 7, 2015) through research and education." 1. The IACP has updated Its model policy on Use of Force. It was last revised in Feb. 2006, The policy and Commentary paper are gratis for IACP members. b_ttP:1Jwww.theiacp.org/ 2. New AELE Monthly Law Journal article: ** Police Accommodation of Mentally Impaired Persons Un- der the Americans with Disabili- ties Act (Part 2) It addresses deadly force, Tasers, suicide, drug use and other sub- topics. View at http://www.aele.org/ law/2015-IOMLI101 html 3. The Oct. 2015 issues of AELE's three periodicals been uploaded, The current issues, back issues since 2000, case digests since 1975, and a search engine are FREE. Everyone is welcome to read, print or download AELE publications without charge. The main menu is at: hgpo L www.aele.ordlaw October 2015 Lo Vehicle C.C.F. Photograph of vehicle interior as observed by deputy after motor- ist exited vehicle. Issue: Was the firearm "readily accessible" to motorist at the time the deputy encountered him? Yes. Was the firearm "on or about" motorist's person, and was the weapon hidden from the ordinary sight at the time the deputy encountered him? Yes Carrying a Concealed Firearm: Section 790.01(2), F.S., reads in pertinent part: "A person who carries a concealed firearm on or about his or her person commits a felony of the third degree." Concealed firearm is defined by section 790.001 (2): " `Concealed firearm' means any firearm, as defined in subsection (6), which is carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person." The Florida Supreme Court in the seminal case on this topic, Ensor v. State, (Fla. 1981), stated: "We ... find that absolute invisibility is not a necessary element to a finding of concealment under sec- tion 790.O01.The operative language of that section establishes a two -fold test. For a firearm to be con- cealed, it must be (1) on or about the person and (2) hidden from the ordinary sight of another person. The term `on or about the person' means physically on the person or readily accessible to him. This gen- erally includes the interior of an automobile and the vehicle's glove compartment, whether or not Mkk locked. The term `ordinary sight of another person' means the casual and ordinary observation of LEGAL[ACL[ 4 October 2015 .., another in the normal associations of life. Ordinary observation by a person other than a police officer does not generally include the floorboard of a vehicle, whether or not the weapon is wholly or partially visible." "These statements are not intended as absolute standards. Their purpose is to make it clear that a weapon's possible visibility from a point outside the vehicle may not, as a matter of law, preclude the weapon from being a concealed weapon under section 790.001. Similarly, a weapon's location in some extreme part of the vehicle's interior may be such that the trier of fact finds the weapon to be not about the person, and thus not concealed. In all instances, common sense must prevail. The critical question turns on whether an individual, standing near a person with a firearm or beside a vehicle in which a per- son with a firearm is seated, may by ordinary observation know the questioned object to be a firearm. The ultimate decision must rest upon the trier of fact under the circumstances of each case." Court Decisions: The issue comes down to whether the facts as presented in court sufficiently establishes that the firearm was simultaneously "on or about the person" and "concealed from ordinary view" when the individual was encountered by the officer. The fact that the defendant was later removed from the vehicle prior to the moment the firearm was seized is of no import. The 4's D.C.A. in State v. Smith, (41)CA 2011), cited to multiple cases where the defendant was out- side of his vehicle for an extended time prior to the discovery of the firearm in the vehicle. Citing to Ev- ans v. State, (11)CA 2009), the D.C.A. ruled, "the [defendant] was inside the vehicle with the concealed firearm at the time the law enforcement officer approached; the [defendant] was ordered out of the vehi- cle; and the firearm was found concealed in the vehicle immediately after." 'The firearm was readily accessible immediately prior to the defendant being ordered out of the car. Smith would have us hold that based on [other cases], anytime a firearm is retrieved from a vehicle after the person charged is out of the vehicle, the requirement that the firearm be `on or about the person' or `readily accessible' cannot be met. We decline to so hold." "The facts in [other cases] are distinguishable from the instant case. In those cases, the defendant was out of the vehicle when approached by law enforcement. Here, Smith concealed the fire- arm underneath the passenger seat as the deputy approached the vehicle. We cannot say as a matter of law that the firearm was not ,on or about his person' or not `readily accessible' to him. Smith had been outside his vehicle for a mere seven minutes before the firearm was retrieved.... We therefore reverse the dismissal..." Related Issues: Section 790.25(5), Possession in a Private Conveyance, was intended to create a new exception to the prohibitions of section 790.0l.The exception is very specifically and clearly limited to private conveyances. "(5) POSSESSION IN PRIVATE CONVEYANCE.—Notwithstanding subsection (2), it is law- aw1 ful and is not a violation of s. 790.01 to possess a concealed firearm or other weapon for self-defense or MOAL[AQL[ 5 October 2015 other lawful purpose within the interior of a private conveyance, without a license, if the firearm is securely encased or is otherwise not readily accessible for immediate use. Nothing herein contained prohibits the carrying of a legal firearm other than a handgun anywhere in a private conveyance when such firearm is being carried for lawful use. Nothing herein contained shall be construed to authorize the carrying of a concealed firearm or other weapon on the person. This subsection shall be liberally construed in favor of the lawful use, ownership, and possession of firearms and other weapons, includ- ing lawful self-defense as provided in s. 776.012:' "'Securely encased' means encased in a glove compartment, whether or not locked; in a snapped holster; in a gun case, whether or not locked; in a zippered gun case; or in a closed box or con- tainer which requires a lid or cover to be opened for access." F.S. 790.001(16). "A gun case can be of any type of receptacle for carrying a gun that makes the gun not readily accessible for immediate use. As long as the purposes of the statute are fulfilled, any further definitions are unnecessary." Alexander v. State, (Fla. 1985). The firearm depicted in the photo above is not securely encased in the center console. It is at the same time, on or about the person of the driver, as well as readily accessible. Further, the testimony of the deputy will be dispositive on the concealment issue. If the body of the motorist, while he was seated in the driver's seat, blocked the officer's view of the firearm, and it only later became visible after he was removed from the vehicle, then as the Ensor ruling made clear, the firearm was concealed from ordinary view. loft., Obviously, if the deputy had a clear view of the firearm as he approached the vehicle then the occupant would be in violation of F.S. 790.053, Open carrying of weapons — "Except as otherwise pro- vided by law and in subsection (2), it is unlawful for any person to openly carry on or about his or her person any firearm or electric weapon or device... Any person violating this section commits a misde- meanor of the second degree." C.C.F. and Motorcycle: Daniel Doughty was riding a motorcycle when he threatened an off-duty officer in an unmarked vehicle. "I have a gun, I'll kill you." He then lifted his shirt, reached into a zippered pouch and retrieved a fire- arm. He was arrested for aggravated assault, and carrying a concealed firearm. He argued that the fire- arm was securely encased and that he was operating a private conveyance. In Doughty v. State, (4DCA 2008), the D.C.A. ruled: "We acknowledge that pursuant to the Supreme Court's holding in Alexander v. State, the handgun was 'securely encased' in Doughty's zippered pack. Yet, pursuant to the unambiguous language of sec- tion 790.25(5), even a securely encased weapon does not fall under the private conveyance exception if it is carried 'on the person.' ... We recognize that 'section 790.25 specifically provides that the securely encased exception does not legalize the carrying of a concealed weapon on the person."' "We further note that the private conveyance exception of section 790.25(5), by its express terms, applies only to the carrying of a concealed weapon 'within the interior of a private conveyance.' We interpret this language to require a person carrying a concealed weapon without a permit, while riding a motorcycle, to keep the concealed weapon securely encased and in an interior compartment of the motorcycle." Ur1AL[AOIL 6 October 2015 0ON Recent Case Law Exigent Circumstances and Real Time Cell Phone Data The defendant, Kendrick Herring, and two other associates, Timmy multiple felonies including second degree murder. He filed a motion to suppress arguing that his real-time cellphone location data was illegally seized because law enforcement did Andrew and Terry Eubanks, commu- not seeK a warrant and none of the nicated via cellphone to arrange a drug deal. When they arrived at the predetermined locale and began to discuss the terms of the sale, defend- ant Herring opened fire on Andrew and Eubanks. The two managed to escape from the scene, fled to Eu- banks' home, and contacted law en- forcement. Andrew died of his inju- ries, and Eubanks suffered a gunshot wound to his arm. Around 11:15 p.m., Eubanks told law enforcement that Andrews and the Defendant had been communi- cating via cellphone. Two and a half hours later, at 1:52 a.m., law en- forcement contacted the cellphone provider using an exigent circum- stances form and asked for the De- fendant's real-time cellphone loca- tion data. Around 2:50 a.m., the cell- phone provider began sending the real-time cellphone location data. The Defendant was located using this data and was arrested around 4:00 a.m. During the Defendant's arrest, law enforcement recovered a.45 caliber handgun, which matched the projectiles recovered from Andrew as well as the casings found at the scene of the shooting. Law enforce- ment also recovered the cellphone that was used to communicate with Andrew earlier in the evening. The defendant was charged with LGOALr4QL[ warrantless search and seizure ex- ceptions (exigent circumstances) applied. The trial court denied his motion. On appeal to the I" D.C.A. his conviction was reversed. Issue: Does the acquisition of real time cell phone data require a search warrant? Yes. Did the totality of the circumstances confronting law enforcement at the time constitute exigent circumstances to obviate the need for a warrant? No. Real Time Cell Data: The Defendant argued that he had a reasonable expectation of privacy in his real-time cellphone location data. The Florida Supreme Court in Tracey v. State, (F1a.2014), recently held that "regardless of Tracey's location on public roads, the use of his cell site location information em- anating from his cell phone in order to track him in real time was a search within the purview of the Fourth Amendment for which probable cause was required." The circumstances at issue here occurred prior to the Tracey ruling, and the State argued that the good faith exception should apply. How- ever, in Tracey, the Florida Supreme Court held that because there was "no warrant, court order, or binding appellate precedent authorizing real time cell site location tracking," the good faith exception was not applica- ble. As such, under the facts of this case, because there was no warrant, court order, or binding appellate precedent providing that a suspect did not have a reasonable expectation of privacy in his real-time cellphone location data, the good faith excep- tion likewise did not apply. Exigent Circumstances: It is well settled that a search without a warrant is per se unreasonable un- der the Fourth Amendment unless the circumstances surrounding the search falls into one of the well- defined exceptions. One such excep- tion is "exigent circumstances." The D.C.A. noted the following, "There is no exhaustive list of what constitutes exigent circumstances, but this Court has identified the fol- lowing factors as indicators of exi- gency: (1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) a reasonable belief that the suspect is armed; (3) proba- ble cause to believe that the suspect committed the crime; (4) strong rea- son to believe that the suspect is in the premises being entered; and (5) a likelihood that delay could cause the escape of the suspect or the destruc- tion of essential evidence, or jeop- ardize the safety of officers or the public. (Citing to United States v. Standridge, (I lth Cir. 1987))." Court's Ruling: The D.C.A., after reviewing the facts here, concluded that they did con- form to the indicators of exigency. October 2015 However, the court also found that the police did not take action as though they were confronted with an emergency situation. "Here, the suspect was to be charged with murder and attempted murder. Law enforcement officers lion: "Excluding the consent and plain view situations, which remove the need for a warrant, every 'exception' to the warrant require- ment derives from an emergency situation, where to obtain a search warrant would defer police activity Excessive Force to Effect Arrest Imam Brown was in Zuccotti Park with Occupy Wall Street crowd. At 5 a.m. she went off to find a restroom. Two blocks away, she came to a had a reasonable belief that the sus- that must be performed punctually to closed Starbucks store. She remained pect was armed because they did not be effective." on the sidewalk, intending to wait recover a firearm from the scene of the shooting. The officers also feared that a delay in the capture of the sus- pect could jeopardize the safety of law enforcement or the public. As such, there were various factors here that indicated exigent circumstances. "However, when determining whether sufficient exigent circum- stances exist, courts examine the totality of the circumstances. One such circumstance that courts look to is whether law enforcement had the blo apparent that no such emergency existed. The State seems to have had sufficient time to get a search war- rant. There is no demonstrated at- tempt to secure one which was frus- trated, thereby compelling action without a warrant. Deputy O'Brien was at the police station for at least forty-five (45) minutes while the petitioner's brother was being booked. Certainly a search warrant time to secure a warrant. "Some set could have been obtained during that of facts must exist that precludes taking the time to secure a war- rant." "If time to get a warrant ex- ists, the enforcement agency must use that time to obtain the warrant." Hornblower v. State, (F1a.1977). Referring to the facts in the Horn- until the store opened. wer case, the Court ruled, "...it is Five minutes later other protesters period or at the very least an attempt could have been made to obtain one. There is no suggestion that O'Brien even considered utilizing the estab- lished procedure for contacting a magistrate during 'after-hours.' Fur - "Based on the record before us, it thermore, the long delay between the appears that the State failed to pre- sent testimony to establish that offic- ers could not have obtained a war- rant during the 2.5 hour period at issue. Further, there was no testimo- ny that the officers made an attempt to obtain a warrent or that they con- sidered making such an attempt. Ac- cordingly, under the facts presented, the totality of the circumstances does not demonstrate exigent circumstanc- es to overcome the warrant require- ment." Reversed. Lessons Learned: The Florida Supreme Court in Horn- blower v. State, (Fla. 1977), recog- nized exigency as a warrant excep- LEQAL CAOL[ time probable cause vested and the commencement of the search belies the assertion that the police wererra unable to obtain a want The State's contention that exigent cir- cumstances were present because the occupants' suspicions would be raised due to Dale's failure to return, Provoking them to destroy the con- traband, is untenable. Law enforce- ment officers may not sit and wait as here (when they could be seeking a warrant), then utilize their se[f- imposed delay to create exigent cir- cumstances." Herring v. State 1•r MCA (May 22, 2015) were banging on the Starbucks store to get into the bathrooms. 911 was called to report the disturbance. Two officers responded immediately. Brown approached the police car and asked if the officers knew where she could find a bathroom. One officer answered her question with a ques- tion of his own, "What do we look like, the potty police?" Brown asked her question again. One officer an- swered that Brown should "piss in the park." Brown asked whether that would be illegal and was told that it would be. As Brown walked away, the offic- ers got out of the police car and asked for her ID. She repeatedly asked why they wanted it, they gave no explanation, and she refused to provide any ID. When she again re- fused, she was told, "You're under arrest." When she asked why she received no explanation. One or both of the officers then grabbed her arm, held it behind her back, and attempt- ed to apply handcuffs. An officer kicked her legs out from under her, and she fell to her knees. The videotape shows both officers on the ground, endeavoring to bring her free arm behind her in order to complete the handcuffing. One of- ficer administered a burst of pepper spray directly to Brown's face. As the struggle to handcuff Brown con- October 2015 F.— I tinned, the officer administered a countervailing governmental inter- by someone wanting to use a bath - second burst of pepper spray directly ests at stake." This balancing, the room, plus the use of loud and nasty in her face from a distance of one Court noted, "requires careful atten- language. With respect to the second foot. The officers then completed the tion to the facts and circumstances of Graham factor, Brown posed no handcuffing, raised Brown to her each particular case, including the threat whatever to the safety of the feet, placed her in the police car, and following three factors: officers or others. As for actively drove her to a police station. 1. "The severity of the crime at resisting arrest, Brown was not flee - The criminal complaint for disor- issue," ing, nor physically attacking an of- derly conduct was dismissed. Brown 2. "Whether the suspect poses an ficer, nor even making a move that sued the officers for violating her immediate threat to the safety of an officer could reasonably interpret civil rights alleging claims for false the officers or others," and as threatening an attack. At most, her arrest and use of excessive force in 3. "Whether he is actively resisting 'resistance' was a refusal to permit violation of the Fourth Amendment, arrest or attempting to evade arrest the easy application of handcuffs by and retaliation in violation of the by flight." placing her hands behind her back. First Amendment. The First Amend- The Court continued, that the An aggregate assessment of all three ment complaint was dismissed. Be- "reasonableness of a particular use of relevant Graham factors would cause the 911 report provided proba- force must be judged from the per- seem to point toward a determination of ble cause to arrest whoever was out- spective of a reasonable officer on excessive force and, at a minimum, side the store asking to get in to use the scene, rather than with the 20/20 to preclude a ruling against the the bathroom; their banging on the vision of hindsight." The Court also victim on a motion for summary door provided a reasonable basis to made clear that the standard is one of judgment." believe that they were engaged in objective reasonableness, and the *** "The officers could be entitled tumultuous behavior. The Court of officer's state of mind, whether evil to a summary judgment only if there Appeals found probable cause for the or benign, is not relevant. existed a per se rule that an arrestee's Disorderly Conduct arrest and the Court's Ruling: refusal to submit to the easy applica- officers were granted qualified im- The Court of Appeals noted that tion of handcuffs always permitted munity. However, on the excessive there was no scoring system to put police officers to use substantial force complaint the Court of Appeals the three prong test into use in the force, including taking a person to denied the officers qualified immuni- real world. "Courts have regularly the ground and incapacitating her ty and set the case for a jury trial. instructed that the three factors iden- with pepper spray, to accomplish Issue: tified in Graham are relevant to the handcuffing. We know of no such Was the force used to effect the required balancing of governmental rule. Indeed, by focusing only on disorderly conduct arrest reasonable interest against the intrusion upon the resistance to the arrest, such a rule under the totality of the circumstanc- individual's interests, but they have would disregard the three -factor es? No. had very little to say about how this analysis that the Supreme Court re - Excessive Force: balancing is to be accomplished ... As quired in Graham. Even resistance The Fourth Amendment prohibits the is true of many methods of analysis sufficient to result in conviction for use of excessive force in making an that courts prescribe, the excessive resisting arrest does not preclude a arrest, and whether the force used is force determination is easier to de- finding of 'excessive force in effec- excessive is to be analyzed under scribe than to make." tuating the arrest."' *** that Amendment's "reasonableness "In this case, the severity of the By way of explanation the Court standard." Graham v. Connor, crime is unquestionably slight. The of Appeals continued, "We do not (S.Ct.1989). Determining excessive- disorderly conduct offense is subject mean to imply that the availability of ness requires "a careful balancing of to a maximum penalty of fifteen days a less aggressive way of accomplish - the nature and quality of the intro- in jail, and the underlying facts, even ing an arrest necessarily means that sion on the individual's Fourth as alleged by the officers, are loud the technique that was used is there - Amendment interests against the banging on the door of a closed store by shown to have been excessive. LEQ4LGibLC 9 October 2015 Police officers must be entitled to make a reasonable selection among alternative techniques for making an arrest. But when the amount of force used by two police officers involves taking a 120 -pound woman to the ground and twice spraying her direct- ly in the face with pepper spray, the availability of a much less aggressive technique is at least relevant to mak- ing the ultimate determination of whether excessive force was used." "The fact that a person whom a police officer attempts to arrest re- sists no doubt justifies the officer's use ofsome degree offorce, but it does not give the officer license to use force without limit." Lessons Learned: The Court of Appeals prior to ruling in this case made the following ob- servation, "Commendably, the offic- ers initially intended to issue a sum- mons, rather than make an arrest. ...At that point, the officers could have explained that they needed her name and address from her ID in order to issue a summons. Instead, as [was] admitted in his deposition, [the officer] grabbed Brown before he told her she was going to get a sum- mons. Then, still giving her no rea- son why they wanted her ID, they told her only, 'We were going to give you a citation, but now you are going to jail.' Neither officer claims that he explained to Brown that they needed her name and address from her ID in order to issue a summons, an explanation that likely would have avoided the arrest, the sidewalk struggle, the pepper spraying, and this lawsuit." In Brown v. City of Huntsville, (I I" Cir.2010), a female motorist was instructed to tum off her loud radio. She did. The officer ordered LGOALMLG her out of her vehicle. She refused. The officer then reached into the vehicle pepper sprayed her in the face, then pulled her from the vehi- cle, onto the pavement and cuffed her. She sued. The Court of Appeals denied the officer qualified immunity. The Court reasoned that Fourth Amend- ment analysis has long recognized that the right to make an arrest or investigatory stop necessarily carried with it the right to use some degree of physical coercion or threat thereof to effect it. But while some force is permitted in effecting an arrest, whether the force is reasonable de- pends on "a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." "Furthermore, an objectively rea- sonable police officer would have known it was unlawful to use pepper spray and other force [forcibly re- moving her from vehicle and placing her on the ground] against an ar- restee who was suspected only of a minor offense (playing music too loud), was not threatening the officer or the public, was not attempting to flee, and who had communicated her willingness to be arrested. Although the law permits some use of force in any arrest for even minor offenses, the law was clearly established in 2005 [Graham v. Connor] that De- fendant's combined gratuitous use of pepper spray and other force against Brown in this minor offense context violated the Constitution." Brown v. City of New York U.S. Court of Appeals - 2nd Cir. (August 19, 2015) 10 Cellphone Seizure North Port police received infor- mation from a police officer in Mas- sachusetts that a person in Florida using a telephone with a particular telephone number was connected with an individual arrested in Massa- chusetts for possessing child pornog- raphy. The Massachusetts officer also provided the North Port police with information linking the tele- phone in question to Anthony Hani- fan. Upon receiving this information, the North Port police met with Hani- fan's wife, who told the officers that the telephone in question was an iPhone in a black case. She also con- firmed details about her living room furniture that matched the descrip- tion of the background shown in sev- eral of the pornographic photos seized in Massachusetts. Armed with this information, the detectives went to Hanifan's house, but he was not home. They decided to wait for him in the driveway of the house two doors away. When Hand - fan drove onto his street and saw the detectives, he fled the area, running several stop signs in the process. The detectives followed and effected a stop for the traffic violations. As Detective Marshall was asking Hard - fan about the traffic infractions and requesting Hanifan's driver's license, Detective Taylor, who had moved to the passenger side of the car, saw an iPhone in a black case on the floor- board next to Hanifan. Detective Taylor opened the passenger door, seized the cell phone, turned it off, and placed it into evidence. Later, after a search warrant was obtained, officers found pornographic pictures of a child on it, along with various calls and messages linking Hanifan to the Massachusetts defendant. October 2015 Defendant filed a motion to sup- press the evidence seized from his cellphone arguing that its seizure without a warrant violated the 4th Amendment. The DCA disagreed evidence from destruction even though there was no immediate fear that the evidence was in the process of being destroyed or otherwise lost." United States v. Chadwick, and affirmed his conviction. (S.Ct.1977); Chambers v. Maroney, Issue: (S.Ct.1970). Essentially, the Su - Does the 4th Amendment control the preme Court has held that "society's seizure of evidence? Yes. If so, was interest in the discovery and protec- the cellphone lawfully seized under exigent circumstances? Yes. Seizure of Evidence: Ordinarily, a law enforcement officer must obtain a warrant prior to seizing the personal effects of an individu- al. See, Arizona v. Gant,(S.Ct.2009), "Our analysis begins ... with the basic rule that 'searches conducted outside the judicial process, without prior approval by judge or magis- trate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well -delineated exceptions.' " "The Fourth Amendment prohibits both unreasonable searches and un- reasonable seizures, and its protec- tion extends to both 'houses' and `effects.' " The court agreed with the defend- ant's argument that "no amount of probable cause can justify a warrant- less search or seizure absent exigent circumstances." State v. Waterman, (2DCA 1994), (citing Taylor v. Unit ed States, (S.Ct.1932)). However, "different interests are implicated by a seizure than by a search" because of the less intrusive nature of a sei- zure. Segura v. United States, (S.Ct.1984). The courts have often approved warrantless seizures of tion of incriminating evidence from removal or destruction can super- sede, at least for a limited period, a person's possessory interest in prop- erty, provided that there is probable cause to believe that that property is associated with criminal activity." The D.C.A. also disagreed that the police created its own exigency by staking out Hanifan's house. The D.C.A. cited to Kentucky v. King, (S.Ct.2011). In King, the Supreme Court recognized that in some sense the police always create the exigent circumstances, as there is an inherent degree of police involvement when- ever they undertake a search or sei- zure to prevent the potential destruc- tion of evidence. "A rule that pre- cludes the police from making a war- rantless entry to prevent the destruc- tion of evidence whenever their con- duct causes the exigency would un- reasonably shrink the reach of this well-established exception to the - warrant requirement." property based on probable cause for the time needed to obtain a warrant in cases in which a search might have been impermissible but when the seizure was used "to protect the L[O& ML[ The King Court concluded that a warrantless search or seizure to pre- vent the destruction of evidence is reasonable and, therefore, allowed so long as "the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment." Court's Ruling: "The State has met its burden here. Having been informed of Mr. Hand - fan's alleged criminal activity and 11 the likelihood that a smartphone on his person could contain direct evi- dence of that criminal activity, and then observing what, by all appear- ances, was an attempt to elude law enforcement officers by driving through two stop signs, there was reasonable justification for the sei- zure of the iPhone. The detectives' concerns that Mr. Hanifan could de- stroy or conceal the iPhone or delete the electronic data and digital images stored on it were reasonable and au- thorized them to temporarily retain custody of the phone while they ob- tained a warrant. See, Riley v. Cali- fornia, (S.Ct.2014)." As to the exigency argument the D.C.A. ruled, "In effect, Mr. Hani- fan's argument would liken the mere presence of these detectives in his neighborhood to a threat against his constitutional rights. We fail to see that parallel. The detectives' parking and waiting in a nearby driveway was not akin to, 'for example, [police] announcing that they would break down the door if the occupants did not open the door voluntarily.' Kentucky v. King. "Indeed, the detectives made no contact with Mr. Hanifan whatsoever before they observed his traffic in- fractions and stopped him. Accord- ingly, the police -created exigency doctrine does not apply here, and the trial court properly denied the motion to suppress." Lessons Learned: The defendant's traffic violations in the presence of the officers provided a lawful basis for the vehicle stop. Exigent circumstances gave the of- ficers a lawful basis to seize (not search) the iPhone. Hanifan v. State 2nd D.C.A. (Sept. 18, 2015) October 2015 TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA Delivered via e-mail October 13, 2015 Commerce Group, Inc. [mail to: records@commerce-group.com] Re: GS #1958 (1132), #1959 (1133) Provide all documents demonstrating training (including without limitation, training courses, training books, pamphlets and other writings) applicable to Chief Ward, since January 1, 2013 through October 7, 2015 which are in possession of the Town of Gulf Stream. The term "Town of Gulf Stream " shall mean each of the following: the Town of Gulf Stream, its Commissioners, its Manager, its employees, its Police Department, its Police Officers and its Counsel (including, without limitation, the following law firms) Sweetapple, Broeker & Varkus; Richman Greer, PA; and Jones, Foster, Johnston & Stubbs, (including, without limitation, the attorneys, employees and partners of each such law firm) Provide all records demonstrating training, (including without limitation, training courses, training books, pamphlets and other writings) applicable to Officer Passeggiata, since January 1, 2013 through October 7, 2015 which are in possession of the Town of Gulf Stream. The term "Town of Gulf Stream" shall mean each of the following: the Town of Gulf Stream, its Commissioners, its Manager, its employees, its Police Department, its Police Officers and its Counsel (including, without limitation, the following law firms) Sweetapple, Broeker & Varkus; Richman Greer, PA; and Jones, Foster, Johnston & Stubbs, (including, without limitation, the attorneys, employees and partners of each such law firm) Dear Commerce Group, Inc. [mail to: recordsaa commerce-group.coml, The Town of Gulf Stream received your original public records request on October 7, 2015. You should be able to view your original request at the following links htty://www2.gulf- stream.org/weblink/0/doc/67572/Pagel.asl)x and http://www2.gulf- stream.org/weblink/0/doc/67578/Pagel.asvxx. In future correspondence, please refer to this public records request by the above referenced numbers. The responsive records can be found at the same above links. We consider this matter closed. Sincerely, Town Clerk, Custodian of the Records