MRR Law Enforcement Blog
By: Christina M. Nicholas, Esq.
Everyone has placed a “pocket dial” at some point. You likely discovered the call had been placed, ended it, and sent an apologetic text to the recipient. You probably did not give the dial a second thought, but what if the recipient had written down or recorded what he or she heard? Is there a reasonable expectation of privacy in information communicated during an inadvertent “pocket dial?”
This question was answered in Huff v. Spaw, 794 F.3d 543 (6th Cir.2015). In this case, an airport chairman’s iPhone inadvertently placed a “pocket dial” to another airport employee’s office phone. Id. During the “pocket dial,” the employee heard the chairman discussing personnel matters with another airport employee and his wife. Id. at 546. The employee took handwritten notes and recorded the conversations she heard. Id. The airport chairman and his wife brought suit, alleging that the employee intentionally intercepted the oral communications in violation of the Omnibus Crime Control and Safe Streets Act. Id.
The court found that because the chairman placed the “pocket dial” to the airport employee, he exposed his conversations to her, and, thus, failed to show an expectation of privacy in the conversations. Id. at 550. The chairman did not have a reasonable expectation of privacy in the conversations because he was aware of the risk of making “pocket dials,” and had failed to take any measures to prevent the pocket dial from occurring. Id. at 552. As it relates to the chairman’s wife, the court found that, “speaking to a person who may carry a device capable of intercepting one’s statements does not constitute a waiver of the expectation of privacy in those statements.” (Emphasis added). Id. at 553.
The ruling in Huff v. Spaw is particularly important to those in law enforcement. When information regarding criminal activity is communicated via “pocket dial” to 911, this information can now be admitted at trial, as there is no reasonable expectation of privacy in said information.
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By: Kyle B. Melling, Esq.
Openly Carrying Firearms in Ohio
Recently gun enthusiasts petitioned the Republican Party to allow attendees to carry firearms at this summer’s Republican National Convention. The Secret Service quickly rejected this request citing Title 18 USC §§ 3056 and 1752, which provides the Secret Service with the authority to preclude firearms from entering sites visited by their protectees, including those located in open-carry states. While gun owners won’t be able to open carry at the RNC, many law enforcement personnel and private citizens find themselves at a loss when determining the specific laws regarding openly carried firearms in the state of Ohio.
Ohio is an “Open Carry” state and protects the right to bear arms under Article I, Section 4 of the state constitution. This means that anyone who can legally possess a firearm can carry one, in the open, without a license, with some exceptions.
Who Cannot Open Carry in Ohio?
Only individuals who can legally possess firearms in Ohio can open carry. Individuals who are not legally allowed to possess firearms include those who are fugitives from justice, those who are under indictment for or have been convicted of a felony, those who are drug dependent or intoxicated, and those who are mentally incompetent.
Where Can Individuals Open Carry in Ohio?
While Ohio generally allows its citizens to open carry fire arms, there are limitations to the locations in which citizens may open carry. Ohio generally prohibits persons from openly carrying in liquor-serving establishments, within school zones, and within court houses. Further, private business owners may prohibit any firearms from being brought into their establishments by posting a notice in a conspicuous location. Finally, absent a Conceal and Carry License, Ohioans may not open carry loaded firearms in any type of vehicle.
Can Police Officers’ Stop and Detain Individuals who are Openly Carrying a Firearm?
The Fourth Amendment requires that in order for a police officer to detain a citizen to conduct an investigation he must have reasonably articulable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1. (1968). Recently the Sixth Circuit held that in Open Carry states, such as Ohio, the presence of an openly carried firearm alone is not enough to permit a police officer to detain and disarm the carrier. See Northrup v. City of Toledo Police Dept., 785 F.3d 1128 (6th Cir. 2015). The Court went on to clarify that this general rule only applies first when the Officer has no reasonable suspicion of any possible criminal activity, and second, when the firearm does not on its face appear to be an illicit firearm, such as an assault rifle, or other automatic weapon. As such, in Ohio, police officers may not detain individuals who are otherwise behaving lawfully, who are openly carrying a firearm.
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Most people are familiar with the National Highway Traffic Safety Administration (NHTSA)’s “Drive Sober or Get Pulled Over” campaign. Throughout the years, a lot of advertisement money from various organizations has been used to educate and persuade people about the dangers of “drinking and driving.” However, little attention has been paid to the ever-increasing incidents of drivers taking to the road while under the influence of a drug.
While driving under the influence of alcohol and driving under the influence of a drug or drugs are both criminalized under Ohio Revised Code section 4511.19 and while the elements of the respective crimes are the same, investigation and prosecution of a driving under the influence of alcohol case can be vastly different from investigation and prosecution of a driving under the influence of a drug or drugs case.
When an officer suspects a driver of being under the influence of alcohol, he or she can look for very specific clues, the most telling of which are an odor of alcoholic beverage on or around the driver’s person, or an admission by the driver that he or she consumed alcohol recently. Most officers, and lay people who may end up on a jury, are familiar with the scent of alcoholic beverage, can likely associate certain behaviors with intoxication by alcohol, and are aware of the general time frame in which alcohol has an effect after consumption.
But what happens when an officer pulls over a driver, and the driver acts very strangely, or even erratically, but there is no sign that alcohol is consumed, there are no drugs in sight, and the driver does not admit to having consumed any particular substance? If a blood or urine test is obtained, this will frequently answer the question of what substance has been used, and in what quantity. However, what happens when the driver refuses a test, a test is unavailable, or results are lost in the mail?
Many of Ohio’s appellate courts have held that speculation as to which drug a driver may be under the influence of is not sufficient to convict a driver of OVI. The prosecution must present evidence sufficient to establish a nexus between the driver’s impaired condition and any type of drug of abuse. While circumstantial evidence may be used to convict a driver, such evidence must point to the use of a particular drug of abuse (for example, empty prescription bottles that have been filled very recently, or the odor of burnt marijuana). Appellate courts have also held that the prosecution must present some evidence of how that particular drug affected the defendant (in the form of expert testimony or testimony from someone familiar with the driver and how he or she acts while using the drug), and essentially how this effect caused the impairment.
Furthermore, most officers use the Horizontal Gaze Nystagmus (HGN) test, outlined in the NHTSA manual, to determine whether a driver may be intoxicated. According to the NHTSA manual, when performed correctly, the HGN can help an officer determine, with 88% accuracy, whether a suspect has a blood alcohol content of .08 or higher, or may suggest that the subject is under the influence of a CNS depressant (like bartbituates or sleep medications), an inhalant, or a dissociative drug, like PCP. However, the HGN cannot determine whether the driver is under the influence of many other drugs, including marijuana. Some Ohio courts have refused to admit the results of an HGN test into evidence in cases in which the defendant has been suspected of driving under the influence of marijuana.
With the increase of people driving under the influence of drugs and the push to legalize marijuana, the issue of driving under the influence of a drug or drugs of abuse will not go away. We will likely see an increase in court decisions regarding the topic.
By: Curtis M. Graham, Esq.
The United States Supreme Court recently had occasion to examine the reach of Second Amendment protection in the case of Caetano v. Massachusetts, which was decided on March 21, 2016. Specifically, the question posed to the Court was whether the Second Amendment’s “right to keep and bear arms” extends to private citizens’ possession of stun guns.
The facts of Caetano were largely undisputed. A woman who lived in Massachusetts (Caetano) began carrying a stun gun with her for self-defense against an abusive former boyfriend. The stun gun was found by law enforcement officers when Caetano gave them consent to search her purse after a shoplifting incident (the officers had identified Caetano as a potential accomplice to the shoplifting). She was eventually arrested for violating a Massachusetts state law banning citizens from possessing an electrical weapon. It was this statute the Supreme Court was asked to judge the validity of.
The lower court rejected Caetano’s constitutional argument, holding that a “stun gun is not the type of weapon that is eligible for Second Amendment protection” because stun guns (a) “were not in common use at the time of the Amendment’s enactment, (b) are not “readily adaptable to use in the military,” and (c) should be banned because of the “historical tradition of prohibiting the carrying of dangerous and unusual weapons.” Each of these contentions was rejected by the Supreme Court, and the Court unanimously found that Massachusetts erred in upholding its law prohibiting the possession of stun guns. Accordingly, Caetano’s conviction was vacated.
The Court clearly stated that the Second Amendment extends to all instruments that constitute bearable arms, “even those that were not in existence at the time of the founding.” Additionally, relevant precedent has rejected the argument that “only those weapons useful in warfare” are protected by the Second Amendment. It should be noted that the opinion in Caetano did not categorically declare bans on stun guns to be unconstitutional. Thus, what happens in the states still having statutory restrictions on citizen stun gun possession remains to be seen (this list includes New York, New Jersey, Hawaii and Rhode Island).
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Curtis M. Graham – MRR Lexington
One of the most difficult decisions a police officer must make is whether to use force on an individual. That decision becomes even more difficult when an officer confronts an individual in the midst of a mental health emergency. Consideration of the affected individual’s safety, and the safety of the rest of the public, must inform an officer’s response. Admittedly, federal courts of appeal throughout the United States have largely failed to announce a cohesive rule that guides officers’ response to mental health emergencies. A recent case decided by the Fourth Circuit Court of Appeals, Estate of Ronald A. Armstrong v. Village of Pinehurst, provides helpful guidance for officers regarding the appropriate use of force in response to mental health emergencies and non-violent resistors.
In Armstrong, Jinia Armstrong Lopez convinced her brother, Ronald A. Armstrong, to go to the hospital after he exhibited erratic behavior. Mr. Armstrong suffered from bipolar disorder and schizophrenia. Shortly after his arrival, Armstrong left the hospital and walked in a nearby road with oncoming traffic. Armstrong’s examining physician issued involuntary commitment papers and three police officers went to collect Armstrong. As soon as the officers received notice that Armstrong’s commitment papers were finalized, they surrounded him. Armstrong wrapped himself around a stop sign post and the officers could not remove him. Just thirty seconds after telling Armstrong about his involuntary commitment, one of the officers was told to tase Armstrong. The officer tased Armstrong five times in “drive stun mode,” which only increased his resistance to the officers’ demands that he let go and return to the hospital. The officers ultimately pinned Armstrong to the ground, cuffed him, and shackled him. Armstrong was unresponsive and stopped breathing. He passed away shortly thereafter.
Armstrong’s estate brought suit against the Village of Pinehurst, the three officers tasked with returning Armstrong to the hospital, and the manufacturer of the taser. The District Court for the Middle District of North Carolina determined that it was unlikely a constitutional violation occurred and the officers were entitled to qualified immunity and summary judgment. On appeal, the Fourth Circuit determined that Armstrong’s “right not to be tased while offering stationary and non-violent resistance to a lawful seizure was not clearly established on April 23, 2011,” the date the officers apprehended Armstrong. This determination was largely in response to case law from the Sixth Circuit that arguably supported the officers’ use of force. The officers were entitled to qualified immunity even though the court determined they used excessive force.
In its decision, the Fourth Circuit set out “to clarify when taser use amounts to excessive force in, at least, some circumstances.” Tasers are intended to cause pain and immobilize an arrestee. Police officers should only use a taser when “confronted with an exigency that creates an immediate safety risk and that is reasonably likely to be cured by using the taser.” The court’s decision made several important points:
- An arrestee does not create an “immediate safety risk” when he or she resists officers and “physically prevent[s] an officer’s manipulation of his body.”
- “Erratic behavior and mental illness do not necessarily create a safety risk.”
- Officers have a diminished interest in using “potentially harmful force” when trying to stop a mentally ill individual from harming himself or herself.
While the court granted the officers in Armstrong qualified immunity, it determined that police officers use excessive force where they outnumber a mentally ill person and tase him when he is potentially a danger to himself while remaining stationary and engaging in non-violent resistance. While the Fourth Circuit’s decision is not controlling in Ohio, officers within the Sixth Circuit should apply the rationale adopted by the Fourth Circuit to avoid potential violations of arrestees’ constitutional rights. Officers should reserve the use of potentially harmful forces, like tasers, pepper spray, and batons for individuals who are actively dangerous and pose a threat to themselves, officers, and/or the public. Use on a stationary and non-violent individual, even when he or she is arguably resisting, should be avoided as it risks violation of the individual’s constitutional rights.
By: Tami Zupkow Hannon, Esq.
Few things will unify Americans more than stories of terrorist attacks, especially alleged terrorist attacks on American soil. The need for, and call to, investigate those claims is undeniable. In doing just that, the FBI came into possession of the iPhone of a suspected terrorist responsible for the San Bernardino shootings last year. In accordance with the Fourth Amendment, the FBI obtained a search warrant to search the contents on the phone for additional information regarding the attacks or other potential attacks. Warrant safely in hand, the FBI now faces yet another problem – accessing that data. Unlike a house where a door can be breached or entered, the iPhone is locked and encrypted. The FBI has but 10 guesses for the 4 digit PIN number (about 10,000 possible combinations) before the phone will wipe the drive, taking all possible information with it.
Enter the lawsuit. The FBI filed suit in federal court in California to compel Apple to assist it with unlocking the iPhone. The FBI won the initial battle, with the Magistrate ordering Apple to create software that would bypass or disable the self-destruct security, enable the FBI to submit passcodes to the phone for testing against the real password (effectively “guessing” the password) and erasing any added delay between attempts at the passcode. Importantly, Apple was not ordered to directly unlock the phone, but rather to make it possible for the FBI to try to unlock it without jeopardizing the contents of the phone. Apple is resisting on the basis that to create such a device would be to allow Pandora out of her box. Once the software is created, it cannot be uncreated and could be used again in future cases. Further, the creation of such software would prove to the world that it is possible to create a program to bypass the iPhone’s security features, something that can potentially encourage the less civic minded. Due to Apple’s refusal to comply with the Court’s order, the FBI filed a Motion to Compel.
The FBI has pursued its claims against Apple using a 1789 law known as the “All Writs Act.” The Act gives a court authority to order a third party to provide non-burdensome technical assistance to aid in the execution of a valid warrant. There are two main questions at issue. The first is whether the assistance is “non-burdensome” as Apple has to actually create the programming being sought. The FBI responds that Apple is in the business of writing iPhone software such that the burden should be minimal to write this particular software. The second is whether Apple is so far removed from the underlying investigation that it cannot be brought in against its will. Both the FBI and Apple argue the same facts to support their claims – Apple is responsible for the creation and distribution of the phone. The FBI asserts that Apple designed the phone such that it is indispensable in creating the code and assisting in unlocking the phone. Apple claims the limited role of designing and distributing the phone removes it from the ultimate end usage by the consumer.
There is also a potential issue under the Fourth Amendment. While the FBI possesses a valid search warrant, the search must be done in a “reasonable” manner. Apple questions whether drafting it to write code that does not currently exist to evade security measures that it put into place is a “reasonable” execution of the warrant.
What is really at issue here? Apple has designed its phones to be fortresses. The latest iPhone 8 is designed to be fully encrypted such that the phone itself cannot even read the data stored in it unless a valid password is entered. This level of encryption makes it impossible for Apple to respond to warrants by law enforcement to extract data from a phone or user. While Apple complies with law enforcement subpoenas, there has long been tension between Apple and law enforcement due to Apple’s storage policies and the limited amount of data that it makes available for law enforcement to subpoena. This case has been selected as the test case to start developing the law to challenge Apple’s security policies. If Apple wins, law enforcement may find itself handicapped in investigations moving forward as it may encourage other companies to take similar stances, resulting in making it more difficult or impossible to follow up on some leads or obtain needed evidence. If the FBI wins, it begins laying the groundwork for circumstances where a company may have “too much” security on its phones, resulting in capping the level of security an electronic device can have built in. The end result? Only time will tell.
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