Appeals Court Examines San Diego Police Tactics

The Ninth Circuit Court of Appeals in San Francisco will soon decide how far San Diego police can go to “get the bad guy” before they cross the line.

Ironically, the lawsuit currently before the court does not involve a “bad guy,” and according to some civil libertarians, that it exactly the problem. The case goes back to February 2010, when Sara Lowery went out for after-work drinks with some other employees of the Pacific Beach data firm where she worked. Feeling an alcohol buzz, Ms. Lowery returned to her office instead of going home; she thereupon fell asleep on a sofa.

Sometime during the night, when she got up to use the bathroom, Ms. Lowery evidently tripped a security alarm, summoning the San Diego Police. By the time Sergeant Bill Nulton, two other officers, and a police dog arrived, she had already gone back to sleep. According to his statement, Sgt. Nulton shouted for anyone in the building to come forward or he would release the dog. Receiving no response, he let the dog off its leash. The animal immediately pounced on the slumbering woman on the couch, biting her lip so badly that it later required multiple stitches.

At issue is not only the officer’s decision to let the animal off the leash, but also the San Diego Police Department’s police dog training method. SDPD K9 units are find-and-bite animals, who locate suspects and immediately bite them. Other law enforcement agencies, including the Los Angeles Police Department, use find-and-bark animals, who locate suspects then alert human officers. One attorney argued that using police dogs is inherently excessive force. “I don’t think it’s necessarily unreasonable if we remove the K9 from the scenario,” opined Nathan Sherman. “We have a person’s life at risk, that’s still a huge issue,” he added.

“No, two lives at risk,” countered Judge Richard Tallman, referring to the police officer.

Pre-Arrest Procedure

At every phase of a police intervention, officers must follow rules designed to protect the constitutional rights of ordinary citizens, and the prohibition against excessive force is just one of these requirements. In the above story, officers arrived at the office building in response to an alarm call. That call satisfied the reasonable suspicion requirement that comes from 1968’s Terry v. Ohio. In this case, a Cleveland police detective violently stopped two men on the street essentially because they passed by a store window a number of times, and the detective believed that they were “casing” a “stick-up job.” Lead by Chief Justice Earl Warren, the Supreme Court held that officers must have “specific, articulable facts” before they can pull over motorists or take other similar action. Officers can use their experience and training to interpret the facts, Chief Justice Warren added, but they cannot simply rely on their “gut instincts” that something is wrong.

Typically, the officer sees a crime or other offense being committed, and that incident serves as reasonable suspicion. That offense is normally a traffic violation, and even something very obscure, like a parking garage sticker placed on the wrong part of the windshield, is legally sufficient.

Other times, officers rely on informer tips, and instead of accepting these tips at face value, courts scrutinize their reliability according to totality-of-the-circumstances analysis. Some factors include:

• Source: Anonymous sources are usually the least reliable, because if the tipsters themselves do not vouch for the truth of the statement, it is difficult for a court to do otherwise. On the other end of the scale, tips from fellow law enforcement officers are usually the most reliable. Every other source is somewhere in the middle.
• Elapsed Time: All information quickly becomes stale, as today’s headlines are usually tomorrow’s bird cage liners. The shelf life of a criminal tip is even shorter; depending on the circumstances, it may not be more than two or three minutes.
• Specificity: Similar to the source analysis, information like “blue Taurus with California plate northbound on the San Diego Freeway” is very reliable and a tip like “dark sedan” could refer to about half the cars on the road.

Paid informants, like the ones often used in drug cases, are usually scrutinized even more. Sometimes they get paid simply for providing the information, which is different from receiving a reward upon a conviction. Moreover, these individuals often have axes to grind against whomever the targets are, which makes the information they provide even more suspect.

Recent Developments

In 2016, the Supreme Court decision of Utah v. Strieff significantly watered down the reasonable suspicion rule. A police officer was watching  suspected drug house, apparently on the basis of neighbor complaints. The officer subsequently detained a man who entered the house and only stayed a short while; the officer found no drugs or paraphernalia, but wound up arresting the man because he had an outstanding traffic warrant.

Despite the shaky nature of the tip and the paucity of evidence against the individual, a divided Supreme Court upheld the subsequent arrest. In his majority opinion, Justice Clarence Thomas acknowledged that the officer made a mistake by arresting the man based on a shaky tip and essentially no evidence, but he ruled that the mistake was basically made in good faith. So, although it did not expressly overrule Terry, Strieff stands for the proposition that Terry only applies to ” lawless invasions of the constitutional rights of citizens,” which is a new, lower standard of proof.

Officers must have reasonable suspicion before they can make stops. For an initial consultation, contact the Law Office of Vikas Bajaj, APC to speak with a criminal defense attorney. Convenient payment plans are available.