Sunday, June 25, 2006

This Is My Rifle, This Is My TASER?

It is reported in Friday's Seattle papers that the Kitsap County Washington Sheriff's Office has placed a deputy on administrative leave after the deputy, thinking he was drawing a TASER, instead pulled out his sidearm and shot a man who had climbed up a tree and wouldn't come down.

Tuesday, June 20, 2006

Supremes Severely Limit Domestic Abuse Reports as Testimony

It was reported in the Los Angeles Times that the United States Supreme Court, in an 8-1 decision that crime scene reports detailing a battered spouse's claims of being beaten by her partner cannot be used as evidence against the abuser unless the victim testifies in court.

In another decision the Court said, however, that 911 calls may be used as evidence in such a case. In prior decisions, Mr. Justice Scalia was not on the side of the angels, holding that an intervioew given at the police station could not be used as evidence in a domestic assault prosecution.

The clear import of the decisions thus far is that victims are witnesses and must testify in most circumstances.

Of course, this shows that Justice Scalia and his colleagues never drove a squad car to a domestic assault or put together a prosecution only to see the victim hounded into silence by the abuser.

The clear imports of this decision are several. First, victims must feel safe in order to have the courage to testify, and that means marshalling community resources in support of victims of domestic violence. In addition, since the "fill out the form" path to using excited utterances without the victim seems to be foreclosed, the alternative "open mike" tactic should prove useful.

I'm indebted to Officer Jeff Dawson of the Des Moines P.D. for this one when he was a Winterset officer. He always used the car with the video equipment to go to domestic calls. The car was parked and the video equipment was left running, producing through the microphone a recording of the call. In addition, use of cameras should be the rule in every case.,1,6973702,print.story?coll=la-headlines-nation

Potential Miranda Violation Treated As Harmless Error

State v. Damm, 05-1024 (Iowa Ct. App. June 14, 2006)

A citizen of Bremer County heard and saw a loud vehicle near his residence on two occasions in the morning, and went to investigate where the vehicle had stopped. There he discovered material that later proved to be anhydrous ammonia, used in manufacturing methamphetamine. The citizen contacted the Bremer County Sheriff's Office and an officer went to investigate.

While the citizen and Deputy Dehmlow were conversing, a vehicle appeared which the citizen thought sounded like the one he had heard in the morning. Dehmlow then followed and ultimately stopped a truck that matched the description that the citizen had given. Damm was the driver and the truck smelled of ammonia or ether.

While returning to the scene following Damm, it was discovered that the jar of ammonia had been moved, presumably by Damm's passenger, and other incriminating material including a jar containing 154.9 grams of methamphetamine was discovered wrapped in Carpet King shirts of the type the defendant and his friend were wearing.

A warrantless search of Damm's truck produced lithium, ephedrine, and a powdery substance. Damm and his passenger were arrested, and a search warrant was issued for Damm's home.

The search of Damm's home produced cash, burnt foil, receipts for pseudoephedrine tablets and more methamphetamine.

At the station Deputy Booth reviewed the Miranda warnings and Damm attempted several times to contact attorneys but ultimately answered some questions about his activities.

Damm filed a motion to suppress evidence, saying that the stop of his truck was unreasonable and that his willingness to answer some questions was not a waiver of his right to counsel. The trial court denied both motions and Damm was convicted.

The court of appeals first addressed the vehicle stop. At the time of the stop, Dehmlow was investigating two crimes, trespass and manufacture of methamphetamine. He had reasons to believe the truck had been in the area, and evidence was wrapped in an unweatherd and unsoiled shirt. This, and the description of the vehicle by the citizen gave reasonable cause to investigate further.

Next the court considered the Miranda waiver issue. The court, not deciding the issue on the merits and assuming for purposes of discussion that a limited waiver had not occurred, nevertheless found that such was harmless error because the other evidence that was admitted was what convicted the defendant.

The lesson for officers (and, as a matter of truth for those who aspire to practice the criminal arts), of course, is the "Six-P" Principle, which holds that Proper Planning and Procedure Prevents Poor Performance.

Inability to Conclusively Establish Driving Within Two Hours Not Fatal

State v. Boehm, 05-0590 (Iowa Ct. App. June 14, 2006)

Floyd County deputies responded to an accident at about 10:45 p.m. and Deputy Kelley saw Boehm sitting in a vehicle and engaged him in conversation. Kelley detected the odor of alcohol and administered field sobriety tests. Based on the FSTs Kelley arrested Boehm and escorted him to the station, where Boehm's BAC was found to be .110 at 12:14 a.m. Boehm alleged that there was insufficient evidence to establish that he had driven his vehicle within two hours of the time the test was administered.

The court found sufficient evidence to convince a reasonable jury that Boehm could have, by his own admission, driven his truck within that time and thus denied Boehm the appeal.

The point to be made to the officers who are tasked with administering FSTs and making spot determinations is to keep an eye on the clock once it starts ticking, and to act promptly in getting the test or the refusal.

Knock and Announce Violation Does Not Compel Suppression

Hudson v. Michigan, 04-1360 (June 15, 2006).

Recently the U.S. Supreme Court visited the issue of whether a violation of the 'knock and announce' rule demanded suppression of all evidence obtained as a result of the search, and determined that it did not.

Police obtained a warrant to search Hudson's house for drugs and weapons. They knocked and entered through the unlocked door after a few seconds, and there found the weapons and drugs in great plenty. Hudson moved to suppress the evidence seized, alleging that police violations of the 'knock and announce' rule compelled suppression of evidence under the exclusionary rule.

In a split decision, the Court determined that it did not, finding that the interests protected by the 'knock and announce' rule were not such as would compel suppression. The Court noted that a heavy social cost is represented by operation of the exclusionary rule and this was not a case that demanded suppression, which Mr. Justice Scalia, writing for the Court, said would be a bonanza for criminal litigants obtained at small cost.

It is too early to ring down the curtain on the exclusionary rule just yet, and the usual precautions must be observed-but it does seem that a mechanistic application of the exclusionary rule to an otherwise good search, for the want of a few seconds of timing is now a thing of the past.

Friday, June 09, 2006

Webster City Refuses to Pay Sheriff's Booking Fee

It was reported in The Messenger that the Hamilton County Sheriff's Department has been charging cities within its jurisdiction a 'booking fee' of $55 per head which Webster City has refused to pay. The total amount that the city has refused to pay exceeds $30,000. The county jail is currently running a deficit of over $175,000 for unpaid debt incurred by prisoners.

No doubt this controversy will ultimately be decided by the courts, but it does point to the enormous pressures county sheriffs are under to recover some of the costs of housing and caring for inmates when the inmates themselves cannot pay.

Under Iowa Code 331.658, the sheriff is responsible for the care and feeding of inmates in his custody with the Board of Supervisors bearing the ultimate responsibility for payment. This principle has existed in Iowa law for many years. See, Teague v. Mosley, 552 N.W.2d 646 (Iowa 1996); Hamil v. Carroll County, 69 N.W. 1122 (Iowa 1897); Grubb v. Louisa County, 40 Iowa 314 (Iowa 1875).

Of course, such a simple question as "What is 'custody'?" is one on which many dollars may hang.

In Mercy Hospital Medical Center v. County of Marion, 590 N.W.2d 41 (Iowa 1999), Kluge, an escapee from a Department of Corrections work release program was injured in Marion County while driving a car stolen in Woodbury County. His injuries were such that the trooper involved had Kluge directly airlifted to Mercy rather than taking him to the Marion County jail. When he had recovered, he was taken into custody by Woodbury County on the stolen car charges. A Marion County warrant was later issued and Kluge was taken into custody in Marion County, the charges were dismissed, and Kluge remained in the custody of the Department of Corrections.

The hospital sued the Department of Corrections, Woodbury County and Marion County for the cost of treating Kluge, and the DOC was dismissed afther paying 1/2 of the bill. The hospital pursued the counties, but the Supreme Court held that the prisoner had to be in the custody of the Sheriff, and that had never happened with Kluge until after he was treated by the hospital. At the time of his arrest Kluge was legally in the custody of the Department.

Of course, if a prisoner is in ill health and in custody in a county, one may find that a defense attorney will not strenuously argue for his release on bail or pretrial release, and might also waive speedy trial so as to keep the inmate's care coming.

A tip o' the hat to Deputy Jason Barnes of the Madison County Sheriff's Office for pointing me to the latest iteration of this long standing controversy.

Wednesday, June 07, 2006

Khat: Out of the Bag in Iowa?

It was reported by the Register today that two people were arrested and 136 pounds of khat was seized recently in the Des Moines area. Khat is a middle eastern plant that is traditionally chewed by people from the Arabian peninsula and the horn of Africa and it produces a stimulant effect on the chewer. It is considered a social drug among the people of the region, and large quantities of the fresh product are consumed daily..

Fresh khat is known to contain cathinone, a Schedule I controlled substance. The leaves rapidly degrade and the cathinone deteriorates into cathine, a Schedule IV controlled substance. It is therefore recommended that if khat is seized that it be frozen until chemical analysis can be done, so as to preserve the relative levels of the active ingredients at the time the material was seized.

While doing the research for this subject I came across two resources that should be of interest to those in the law enforcement community. The US Department of Justice National Drug Intelligence Center publishes drug intelligence bulletins periodically. The following link has a good description of catha edulis, its characteristics and its effects.

The following link is to The Microgram, a publication of the Drug Enforcement Administration that contains much useful and cutting edge information on the subject of illicit drug use and merchandising. The reader is directed to the March 2006 edition of The Microgram for a description and good photos of fresh khat seized by authorities in Ohio recently, and the January 2006 edition for a similar seizure in Oregon.