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
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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
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14W,
A Newsletter for the Criminal Justice Community ,,A' October 2015
In this issue:
❖ Vehicle CCF
❖ Real Time
Phone Data
Excessive
Force
❖ Cell Phone
Seizure
L EQAL E_AQU
Published by:
Office of the State Attorney
West Palm Beach, FL
33401
B. 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