Death or injury cases involving
law enforcement officers
Part 2: lessons learned
By Gareth Jones and Barry Nolan
22 W W W. N A C D L . O R G THE CHAMPION
the involved police service secured the scene pending our
n Part One, that appeared in the July arrival. However, the senior detective in charge of the scene
I 2002 issue of The Champion, we dis-
cussed the proactive steps defense coun-
sel may want to consider in these cases.
In Part Two we continue by discussing
approaches to analyzing the information you have
obtained, and the inferences you may be able to
draw that will work to your client’s advantage. We
allowed the two cruisers involved in the incident to be driv-
en from the scene, by the very officers who had been
involved in the incident no less. Incredibly, the cruisers were
driven out of the scene the same way as they had entered the
scene, thereby driving over evidence that had originated
from the shooting, altering some of it while doubtless taking
some of it away with them. We knew that there was impor-
tant evidence inside the vehicles, including which radio
channel the officers had on, what equipment they had with
them, what was in the trunk, whether the windows were
also talk about the problems inherent in retaining open, etc, etc. To make matters worse, it appeared that sev-
and using expert witnesses in these cases. eral other police vehicles drove into and exited the scene by
the same route.
Analyzing what you have The detective in charge of the scene then ordered two
How then does one go about identifying and officers to assist his search for the cartridge case discharged
by the shooting officer’s weapon. It was 3:30 a.m. and rela-
exploiting the imperfections of the tively dark. He decided not to wait for daylight, nor did he
investigation and its ﬁndings in favor employ grid search techniques. The search may have been
of one’s client? Fortunately, the princi- necessary had cartridge cases developed a propensity to
ples of sound investigative practice are grow legs and go for a stroll. The excuse that was floated on
the detective’s behalf at subsequent court proceedings was
universal. However, as mentioned pre- that he was concerned that the cartridge case may have been
viously, cases involving police use of washed away had there been a downpour. Fair enough, pro-
force have their own unique complex- vided he has good notes that he can see Noah’s Ark coming
down the street at the same time.
ities and difﬁculties that many defense The officers spent between 30 and 45 minutes searching
counsel will likely not be intimately through the scene before they found the cartridge case.
familiar with. Thankfully, in retrospect, any footwear impressions they
may have obliterated would probably have had no probative
value. Unfortunately, the same was not true for other trace
evidence, such as glass, blood or fibers that may have been
At a minimum, counsel should consider the dislodged or otherwise altered in the course of their efforts.
following areas. In our experience, they are Not content with that, the detective then decided to
amongst the key areas in assessing whether place a tarpaulin over a broken window in a vehicle involved
any investigation was conducted thoroughly in the chase. That was the sensible thing to do as it had
and objectively. begun to rain lightly and blood spatter evidence inside the
vehicle could have been contaminated. Unfortunately,
• What happened at the scene; Murphy’s Law being what it is, the detective came into con-
• Forensic issues; tact with the vehicle as he put up the tarp, possibly leaving
• Statement quality; fiber evidence on the same side of the vehicle where an offi-
• What happened to witnesses after the cer directly involved in the shooting subsequently claimed
incident; and he was hit. Both officers were wearing jeans, and jean mate-
• What assistance did the police depart- rial was found on the vehicle near the window. Not surpris-
ment provide the involved officer. ingly, the origin of the jean fibers became a very contentious
issue at subsequent proceedings.
This can be a complex and time-consum- In another case, a driver was seen by a uniform police
ing task. In many cases, counsel will require officer on radar duty exceeding the speed limit by about 15
expert assistance in assessing the inferences mph. The man drove into the driveway of his own home
and implications to be drawn from informa- before the officer could catch up to him and pull him over.
tion, lack of information or tainted informa- Undeterred, the officer followed the man onto the driveway
tion on each of these fronts. and attempted to give him a ticket. The man told the officer
that he had no right to be on his property and asked him to
What happened at the scene? leave. The officer insisted on giving the man a ticket.
The more that was done by the involved Allegedly, the man then threatened the officer with a sledge-
police force to properly preserve the scene of hammer, which he dropped and ran into his house, report-
the incident, the more confident you can be edly punching the officer as he did so. The officer followed
in the objectivity and thoroughness of the the man into the house where there was a struggle in the liv-
entire process. However, it is not unknown ing room, in front of the man’s two teenage sons. According
for crime scenes in police-involved cases not to the sons, their father was yelling at them to call the police
to be preserved as they would have been had as he ran into the house. Backup officers, summoned by the
police not been directly involved in the incident. arresting officer, arrived. In the course of the altercation, the
In one particularly grievous case of scene preservation man stopped breathing. An ambulance was called and the
involving a brief pursuit and a fatal shooting by an officer, man was taken to hospital where he was pronounced dead.
W W W. N A C D L . O R G AUGUST 2002 23
Cause of death was subsequently Forensic issues • Can the prosecution prove conti-
determined to be asphyxiation due to The importance of this area of file nuity?
compression of the neck. Once para- review can be encapsulated in two let- • Who were the analysts and what
medics had cleared the scene, the ters: O.J. are their credentials?
house was completely abandoned by This is a very important area that • How good is the lab?3
the involved officers, as well as by two is sometimes overlooked, but always
supervising officers who had arrived as crucial in assessing the merits of a par- This is not an exhaustive list.
the altercation was ongoing. It should ticular investigation. It has proven to There are many other avenues worth
have been an obvious priority on the be a robust area of inquiry which has exploring in this field, to ascertain how
part of all officers present to preserve often yielded great dividends in our thoroughly the forensic aspect of the
the scene pending our arrival. In fact, investigations of police conduct. investigation of the incident was con-
nothing at the scene was protected or To begin with, be cognizant of the ducted. Consider retaining an appro-
preserved. When we arrived, we found fact that the place where the incident priate expert in the event that you
family members (some of whom had in question occurred is usually not the require assistance in evaluating the sig-
witnessed the incident) cleaning up only scene. In most cases important nificance of the forensic investigation
the mess in the house. Vital evidence physical evidence will also be found at performed or not performed in rela-
was lost forever.1 the police precinct closest to the inci- tion to your client.
Finally, in another telling example dent, as this is where involved officers
of dubious scene preservation prac- and civilian witnesses tend to congre- Statement quality
tices and the damage they inflict on gate. This evidence may include Analyze all statements taken by
investigative integrity, an inmate had involved officers’ clothing, footwear any party, line by line. Ask yourself if
apparently hanged himself in his cell and firearms. the difficult questions were posed,
while in police custody. We arrived at Another potential scene is the both of civilian witnesses and involved
the police precinct less than two hours police building in which involved offi- officers. Be vigilant for interviewers
after the prisoner had been pro- cers were based, if it is not the local avoiding or skirting pertinent issues or
nounced dead. The cell area had been precinct. It may, for example, contain asking leading questions. Did the
secured once the paramedics had left, notes or diagrams concerning the interviewers have a consistent
and officers were posted at all access planning of the operation that led to approach to each party? Were civilians
points into the cellblock. We met with the incident. The hospital or hospitals treated differently from involved offi-
the station commander and counsel where involved parties were taken, as cers? Was the questioning exhaustive?
for the police department and were well as the transporting ambulance(s), Take note of how each statement
assured that the scene had been are also important scenes, which was taken. For example, was it hand-
secured and preserved pending our should be thoroughly processed in written? If so, who wrote it and was it
arrival and that nothing had been accordance with accepted forensic written contemporaneously? Who was
altered or removed. They then took us techniques. Very important physical present? Where and when was it taken?
to the cellblock where, as we evidence, sometimes forgotten or neg- Was there any preamble? Are any times
approached the main door to the cell- lected in the course of an investiga- shown on the statement indicating
block, we saw counsel for the subject tion, is often found in these locations. when it began and finished and, if so,
officers emerge from inside the cell- This evidence can include such things are the times consistent with the
block area accompanied by one of his as: excised clothing, pre-transfused length of the statement? If not, what
clients. That did not give us a particu- blood and discarded bandages. A fail- else happened or was said during the
larly warm and fuzzy feeling. ure on the part of the police to identi- taking of the statement? This may also
You may want to count the times fy and collect evidence from all poten- seem like minutiae, particularly to the
you as defense counsel have been invited tial scenes is a fertile source of doubt, busy criminal defense lawyer without
into a potential crime scene with your reasonable and otherwise. the luxury of time. Rest assured, it is
client, prior to it being processed. There Below is a checklist of other not. The devil really is in the details. In
was no evidence that the lawyer or his inquiries you will want to canvass with one case we investigated, we were given
client had done anything other than respect to forensic evidence: a copy of a written statement taken
view the scene; however, perhaps under- from an independent witness by a
standably, everything that subsequently • How was the evidence collected detective. According to the detective’s
ﬂowed from that police department in and preserved? notes, the statement took 45 minutes
that investigation was met with a rather • What are the qualifications, to complete. It was two paragraphs
jaundiced eye. And while we do not sug- training and experience of those long. Just think what you might be
gest that you necessarily meet every involved in the evidence gather- able to make of that in front of a judge
piece of police evidence with a “jaun- ing process? or jury, assuming you have taken the
diced” eye, this and the other “Keystone • What tests or examinations were time to look for it.
Cop” tales described above point to the requested? What were not? If the statements are in the form of
need for an ever vigilant scrutiny of • What was actually done forensi- transcripts of audio or video tapes,
police practices at the scene of an inci- cally? have the transcripts been proofed? If
dent. Beneath the farce of these inci- • What should have been done, but not, you should request a copy of the
dents, we found grave lapses in scene was not? (Sometimes, a lack of original audio or videotape, and take
preservation practices with very serious evidence speaks volumes) the time to listen to or watch them, or
implications for the reliability of the evi- • What is the potential for con- have someone do it on your behalf.
dence seized at the scene and the integri- tamination of evidence at any For example, in a fatal police
ty of the subsequent investigation. point in the process?2 shooting, a potentially very important
24 W W W. N A C D L . O R G THE CHAMPION
witness was interviewed on audio tape What happened to witnesses active participant in the incident, such
at the scene within a few hours of the after the incident? as police shootings or fatal pursuits,
incident. He was asked to point out One of the key indicators of inves- the involved police officers are some-
where the vehicle in which the suspect tigative integrity is what police and times exempted from such restrictions.
had been killed was located at the time civilian witnesses were permitted by It is not unknown for involved officers
of the shooting. The witness pointed investigators to do in the hours imme- to meet together in the wake of an
to a set of cones put up by forensic diately after the incident. incident. These meetings are at times
identification officers around a pool of Assess if there was any opportuni- justified on the basis of established
glass that had originated from the ty for collusion prior to officers mak- protocol, particularly in respect of task
vehicle and, in heavily accented ing notes or giving statements. Who force or SWAT units who refer to the
English, told the investigators “It’s did the officers speak to? Where? importance of immediate de-briefings
around where you put the cones.” The When? Who else was present? Is there a of incidents among team personnel to
transcriber interpreted and recorded possibility that information may have defend this practice.5 Whatever the
his answer as “It’s the wrong place you been transferred through a third party, justification proffered for these meet-
put the cones.” The investigator who including police union representatives ings, they inevitably call into question
took the statement never proofed it. or police department investigators? the reliability of the officers’ “inde-
The transcript was provided to defense Careful analysis may provide some pendent” recollections of the incident
counsel, but the original audiotape basis to argue that certain evidence and expose the officers to allegations
was not. may be unreliable. of possible collusion among fellow
The mistake was never corrected. Consider also what happened to officers.
More accurately, it was not until a civilian witnesses, and compare their The officers in many cases will be
civil trial for malicious prosecution treatment to how involved police offi- permitted to meet with counsel prior
some four years later, in which the cers were dealt with. It is accepted to making any record of what occurred
plaintiff was the police officer who police practice (not to mention basic during the incident or giving any state-
had shot the suspect. The lead inves- common sense) in serious investiga- ment to investigators. In one instance,
tigator spent a significant portion of tions that all civilian witnesses are we arrived at a police precinct to find
his five days in the witness stand identified, strictly segregated and that nine officers who had witnessed a
attempting to explain, with varying interviewed without automatically police shooting had been placed, unsu-
degrees of success, why the discrep- being offered access to counsel or the pervised, in a room together, and had
ancy had never been dealt with. opportunity to meet with each other. been there since the shooting had
Lastly, you will want to scruti- In stark contrast, in serious inves- occurred several hours previously. No
nize the statements and notes of tigations involving the police as an restrictions had been placed on them
involved officers particularly careful-
ly. It is widely acknowledged that
investigations into allegations of NACDL‘s
police misconduct are hampered by
reluctance on the part of some offi-
cers to “rat” on other members. The
Cancun, Mexico Midwinter
Christopher Commission investiga- Seminar
tion into the Los Angeles Police
Department noted that “perhaps the Melia Cancun
greatest single barrier to the effective
investigation and adjudication of
complaints is the officers— unwrit- Spa Resort
ten ‘code of silence’ . . . (the principle
that) an officer does not provide Feb 19-22, 2003
adverse information against a fellow
officer.” 4 We suggest you critique
everything attributed to involved J oin your NACDL colleagues
for a special midwinter tropi-
cal getaway. Mark your calendar
officers, including the investigators now and look for more informa-
tion in upcoming issues of The
assigned to the incident. What did Champion and on NACDL’s Web
they write? When did they write it? site: www.nacdl.org. Take a virtual
tour of the Melia Cancun Beach
What would you expect to be there? and Spa Resort by visiting
What, if anything, was missed or www.mexicovisitorscenter.com.
glossed over? What language and
phraseology did they employ and are
there similarities with other officers’
accounts? Were the notes produced All US citizens must present the following doc-
in compliance with the published uments upon entry into Mexico (NO EXCEP-
standards and policies of the police TIONS): (1) Original birth certificate and a photo-
service in question. Finally, consider
whether there is any evidence of ID drivers license (NO COPIES) or (2) A passport
recalcitrance or coloring apparent on with at least six more months of validity.
the face of the statements and notes
of involved officers in your case.
W W W. N A C D L . O R G AUGUST 2002 25
speaking together or communicating the department simultaneously sup- on both sides do not consider leading
with other parties. Additionally, they plied an identical copy of the material such evidence. In many cases, experts
spoke as a group with counsel retained to counsel for the officer who had shot provide essential opinion evidence on
for them by the police union. Though the suspect. This was prior to the com- the appropriate standard to be exer-
none of them had been physically pletion of our investigation, and prior cised by law enforcement officers in a
injured, they then proceeded to book to the officer making a final decision given situation. These include situa-
off duty without first giving waiting whether or not to consent to be inter- tions that appear on their face to be
investigators statements. In the same viewed by us. This monumentally inap- clear breaches of common sense upon
incident, several independent civilian propriate disclosure by the police which a trier of fact could, presumably,
witnesses willingly gave statements to department to counsel representing the exercise their own judgment. Do not be
investigators immediately after the officer under investigation was only so sure that a court will accept what
incident, including two bystanders brought to light when an invoice from appears to you to be obvious. In one
who had been taken to hospital with the officer’s counsel, indicating his bill- case we investigated, a judge expressed
injuries resulting from the incident. able hours for reviewing the material, dismay that the prosecution had not
Judges or juries cannot help but be was produced in subsequent civil liti- led expert evidence on why it was inap-
perplexed with apparent double stan- gation several years later. propriate for officers to apparently
dards of this nature. The investigators The motto of the involved police carry a man into a police station with a
certainly were. department, which is prominently dis- nightstick under his neck. The lesson
played on its letterhead and embla- — take nothing for granted.
What assistance did the police zoned along the sides of its cruisers is A prerequisite to engaging in a
department provide the “Deeds Speak.” Indeed. “battle of the experts” is the ability to
involved officer(s)? In another case, a SWAT team offi- retain an expert to battle on your
Another key indicator of how cer was convicted of criminal negli- behalf. Normally, you will have little
objectively an investigation was con- gence causing death after he shot and problem engaging experts in various
ducted is the extent of support offered killed a civilian. The case was appealed fields of particularized knowledge,
to the involved officer(s) by the police up to the Supreme Court of Canada. such as pathologists, toxicologists,
department. Did the chief or senior The appeal was disallowed. A newspa- firearms examiners and so on.
police management publicly indicate per investigation revealed that a por- However, if our experience is any indi-
their position on the involved officers’ tion of the involved officer’s costs, esti- cation, you will encounter considerable
conduct? If so, at what point in the mated at over $100,000 (Canadian).6 difficulty retaining a suitable expert in
process? Did they release any “facts” had been paid for by the officers’ police the field of police conduct who is pre-
concerning the incident, or express an department, even though he was con- pared to give evidence against police
opinion indicating whether the officer victed.7 officers. This includes experts on such
was justified in his or her actions? Another particularly egregious issues as use of force, motor vehicle
Above all else, chiefs of police are pub- example of the lengths to which a operation and standards of care in cus-
lic officials whose interest at all times police department may go to assist one tody situations. Why? Experts in these
should be one and the same with the of its members involved an officer who fields tend to be serving law enforce-
public interest. Statements of this shot a member of the public and was ment officers, law enforcement trainers
nature may call into question the fair- subsequently charged with manslaugh- or retired law enforcement officers.
ness and objectivity that one would ter after an investigation by a civilian They tend to be reluctant to testify as
expect of a police chief and impugn agency. A senior detective from the experts on behalf of a civilian accused
the motives and integrity of any corre- same department was assigned on an in cases where police conduct is at
sponding police investigation. as-needed basis by the department to issue.
In some cases, the nature of the assist the officer’s counsel prepare the In one case, after an extensive and
assistance afforded the subject officer officer’s defense. The detective, oftentimes frustrating search, the pros-
is far more serious, and potentially although in effect acting as an agent of ecuting attorney managed to retain a
lethal to a fair and objective investiga- defense counsel, was permitted access serving officer from an out-of-town
tion. In a case a police department to police databases and used police police department. He agreed to give
provided a copy of all the information equipment while working for the expert evidence about use of force and
it had gathered in relation to a fatal defense. He continued to be paid by the takedown tactics in the trial of a police
shooting by one of its officers to us police department. The prosecution officer accused of manslaughter. The
within seven days of the incident. This was not informed that this had been expert was a firearms trainer who reg-
material had been gathered by the authorized. None of the fruits of the ularly taught at a prestigious police
department to further the investiga- investigation completed by the detec- academy, and had been frequently
tion into a civilian who was with the tive were disclosed to the prosecution, invited to lecture on the topic. He was
deceased when he was shot, and had which was considered to be subject to duly qualified as an expert and gave
been charged with possession of the attorney-client privilege. That this had evidence. His evidence was by no
stolen vehicle in which they were occurred only came to light at trial, and means damning to the accused police
alleged to have been at the time of the then only through accident.8 officer. In fact, it helped the accused in
shooting. The material consisted of many ways, as indeed we knew it
over 200 pages of evidence, including a Experts would, but we felt we had a duty to be
large number of statements from Expert evidence is being used fair. Nevertheless, there was tangible
police and civilian witnesses. Much of more and more in cases where police animosity from the legion of uni-
it directly related to the circumstances conduct is at issue. It is rare to find a formed and plainclothes police officers
of the shooting itself. Unknown to us, serious case in this area where counsel who made a point of attending court
26 W W W. N A C D L . O R G THE CHAMPION
the day our expert was scheduled to towel just yet. Consider the utility of Janine Arvizu
give evidence. retaining an expert who, though not 4. Independent Commission on the Los
We met up with the “expert” ofﬁcer prepared to take the stand to tender Angeles Police Department (Christopher
a year or so later. He told us that his giv- evidence detrimental to another police Commission Report) at page 168
ing evidence against an ofﬁcer had been officer, may be willing to assist defense 5. Dubious logic perhaps, particularly
“a career-ending decision.” Word of his counsel prepare for cross-examination if the suspect is dead.
alleged perfidy had quickly spread of the opposing side’s expert or key 6. About $64,000 in U.S. dollars.
throughout the law enforcement com- witnesses.9 7. OPP conceded that it should not
munity. He stated he had been ostra- We have barely touched on all “the have paid officer’s legal fees, TORONTO STAR,
cized by some fellow ofﬁcers and had tricks of the trade” that we employ March 28, 2001, p. A20.
not since been invited back to lecture at when we review investigations on 8. Ontario Civilian Commission on
the academy. Even though he could not behalf of counsel. There are numerous Police Services. Report of an Inquiry into
bring himself to admit it directly, he other steps that can be pursued to the Nepean Police Service, July 1994 .
clearly regretted ever agreeing to assist assess the strengths and weaknesses of 9. There are several excellent expert
the prosecution in the case. an investigation into a client, depend- witness directories, available on the
In another civil case in Ontario, ing on the nature of the case. Each case Internet or through various organiza-
the defendant, a former senior govern- has its own complexities and dynam- tions. ■
ment lawyer who had charged a police ics, which will most often require a tai-
officer with an offense and was being lor-made approach. Experts will assist
sued by the officer for malicious pros- you identify the nugget(s) of informa- About the Authors
ecution, was unable to find an expert tion within the investigation that you Gareth Jones is a consultant with Law
to support his position. His counsel need to represent your client effective- Enforcement Liabili-
contacted several, all of whom very ly, and to use them to maximum ty Consultants Inter-
politely refused to assist. One expert advantage. Get them involved as soon national (LELCI). As
did review the report tendered by the as you can. an investigator with
plaintiff ’s expert (a serving police offi- Defending a client involved in a the Attorney Gener-
cer), which he verbally assessed as hav- police related death or serious injury is al of Ontario Special
ing considerable weaknesses. He a complex, challenging and very often Investigations Unit
declined to assist however, on the thankless task. (SIU) he investigat-
unexpressed but very clearly implied Everybody is entitled to due ed, in the ﬁeld, over
grounds he would not likely work in process. Police officers under investi- 450 police-related deaths or serious
the field again. gation are the first to avail themselves injuries, including approximately 100
Even if you do manage to retain an of all the protections available to them police shootings. He is a former Sergeant
expert, do not assume he or she will under the law. Further, they and their with the Metropolitan Police, New Scot-
remain steadfast when giving testimo- counsel are the first to exploit any flaw land Yard, London, UK.
ny. Any chilling effect may be subcon- in the investigation of the incident
scious. As one very experienced lawyer they have been involved in, however Gareth Jones
who represents police officers on occa- minuscule that flaw may be. And quite 314 Kennedy Avenue
sion told opposing counsel, he was rightly so. Police officers should not be Toronto, Ontario, Canada
confident he could lead an expert wit- treated like second-class citizens. M6P 3C3
ness in policing to agree with virtually (416) 762-9077
anything he put to the expert during Best defense E-MAIL firstname.lastname@example.org
cross-examination, particularly in use Give your client the same advan-
of force situations. He may well be cor- tage. Every investigation has its Barry Nolan is a consultant with Law
rect. Experts in this field, because of Achilles heel. Investigations of civil- Enforcement Liabili-
their backgrounds, tend to have an ians involved in police related deaths ty Consultants Inter-
affinity with the officers and the work or serious injury are no exception. national (LELCI.) He
that they do. A former senior prosecut- Scrutinize the material you receive. is a former Attorney
ing attorney termed it the “there but Make sure you have everything you General of Ontario
for the grace of God go I” syndrome. should have. Look for the weaknesses Special Investiga-
To help mitigate these contingen- that inevitably exist. Get expert help if tions Unit (SIU) inves-
cies at trial, we recommend subjecting you need it. Ultimately, you may not tigator and has
your expert to an exhaustive mock secure everything your client thinks he investigated numer-
cross-examination once you receive his or she deserves. But you will be satis- ous police shootings,police-involved motor
or her written report, and certainly fied that you have given him or her the vehicle collisions and allegations of sexual
prior to putting him or her into the very best defense possible. assault. Prior to joining SIU, he was the ofﬁ-
witness stand. Clear up any and all cer in charge of a police homicide squad.
potential ambiguities. Have a witness Notes
with you, keep very good notes, and 1. The officer was charged and con- Barry Nolan
make sure you are absolutely clear victed of manslaughter. He appealed and 314 Kennedy Avenue
exactly what your expert’s opinion is was acquitted at a retrial. Toronto, Ontario, Canada
on any given issue. 2. Particularly important in cases M6P 3C3
If you are unable to retain an where fiber evidence may be at issue. (416) 762-9077
appropriate expert to testify on your 3. See, T HE C HAMPION , May 2000. E-MAIL email@example.com
client’s behalf, do not throw in the Forensic Labs: Shattering the Myth, by
W W W. N A C D L . O R G AUGUST 2002 27
Boundaries of the Fourth Amendment:
Open ﬁeld not
Tent in park
Fenced open ﬁeld
Tent not protected
Vehicle used as ???
4 factors for curtilage
Backyard protected 2.
Not protected ??? Garbage not
Garbage on trailer
eoples’ homes (or motel rooms or RVs) may still be their castles for Fourth Amendment purposes; but
P the courts, as legal realtors, have parceled out prime privacy property over the years. This subdivision
of the Fourth Amendment has now shrunk what were expansive contours of one’s private property,
homestead, and curtilage to a small plot, necessarily fenced or walled. Indeed, the constitutional barri-
cades protecting home privacy increasingly has been breached with warrantless exceptions.
(Continued on page 30.)
by Jon M. Sands & Robyn Greenberg-Varcoe
28 W W W. N A C D L . O R G THE CHAMPION
a warrantless view of curtilage
BOUNDARIES OF THE FOURTH AMENDMENT
Private room not protected
Okay for police roll
??? Motel partking lot
not protected Alley not protected
Thermal image okay
W W W. N A C D L . O R G AUGUST 2002 29
Peoples’ homes (or motel rooms or that have been taken. Such a well-Dunn (1966) (same); Hoffa v. United States, 385
RVs) may still be their castles for Fourth test is also a “Mapp” applicable to the U.S. 293 (1966) (same); United States v.
Amendment purposes; but the courts, as State. Because we are a nation on the Nerber, 222 F.3d 597 (9th Cir. 2000) (motel
legal realtors, have parceled out prime move, we have also included in this room used for drugs reverted to private
privacy property over the years. This graphic a “stop” at a motel, a stroll past after deal); United States v. Ramos, 12 F.3d
subdivision of the Fourth Amendment some businesses, a scenic view of some 1019 (11th Cir. 1994) (use of hotel has priva-
has now shrunk what were expansive open ﬁelds, and various vehicles for “cite- cy expectations); United States v. Foxworth,
contours of one’s private property, seeing.” 8 F.3d 540 (7th Cir. 1993), cert. denied, 114 S.
homestead, and curtilage to a small plot, Ct. 1414 (date) (same); United States v.
necessarily fenced or walled. Indeed, the Notes Winsor, 846 F.2d 1569 (9th Cir. 1988) (same).
constitutional barricades protecting the 1. Florida v. Riley, 488 U.S. 445 (1989) 14. Lewis v. United States, 385 U.S. 206
home privacy increasingly has been (observation by helicopter from 400 feet of (1966).
breached with warrantless exceptions. It contents of greenhouse did not violate 15. United States v. Gorman, 104 F.3d
is not, as a rule, as “exclusive” as it use to Fourth Amendment.) 272 (9th Cir. 1996) (area outside of bus that
be. Backyards can be scrutinized from 2. California v. Ciraolo, 476 U.S. 207 is used as a residence is curtilage for Fourth
BOUNDARIES OF THE FOURTH AMENDMENT
the air; and garbage in the driveway can (1986) (observation by airplane in public air- Amendment purposes).
be examined — without the warrants. space of marijuana plants within curtilage 16. United States v. Depew, 8 F.3d 1424
What is a person seeking privacy to do? did not violate Fourth Amendment). (9th Cir. 1993) (area six feet from garage and
A map would help. As such, this graphic 3. Stoner v. California, 376 U.S. 483 50 to 60 feet from home was still within cur-
attempts to illustrate some of the (1964) (hotel clerk cannot consent for tilage as it was within the privacy scope of
“boundaries” of the Fourth Amendment guests who properly rented room). home); United States v. Jenkins, 124 F.3d 768
in relation to homes, businesses, build- 4. Chapman v. United States, 367 U.S. (6th Cir. 1997) (enclosed by fence).
ings and curtilage. Curtilage itself is a 610 (1961) (landlord consent for tenant in 17. United States v. Boden, 854 F.2d 983
term of art, meaning the adjacent prop- possession). (7th Cir. 1988).
erty to a house that falls under the 5. California v. Greenwood, 486 U.S. 35 18. United States v. Billings, 858 F.2d
home’s protection for Fourth (1988) (Fourth Amendment does not pro- 617 (10th Cir. 1988).
Amendment purposes. The United hibit search of opaque plastic garbage bags 19. United States v. Brown, 169 F.3d 89
States Supreme Court, in marking off the outside of curtilage of home.) (1st Cir. 1999) (no expectation of privacy in
perimeters of curtilage, devised a test in 6. Abel v. United States, 362 U.S. 217 common area of apartment complex);
United States v. Dunn, 480 U.S. 294 (1960) (abandoned effects of departed United States v. Acosta, 965 F.2d 1248 (3rd
(1987), looking at (1) the property’s guest in hotel room not protected by the Cir. 1992) (no expectation of privacy in com-
proximity to the home; (2) whether there Fourth Amendment). mon hallway of apartment).
is an enclosure; (3) the nature or use of 7. Hester v. United States, 265 U.S. 57 20. United States v. Ludwig, 10 F.3d
the property; and (4) any privacy steps (1924) (an open field which can be 1523 (10th Cir. 1993) (no expectation of pri-
observed has no privacy interest). vacy in motel parking lot).
8. Oliver v. United States, 466 U.S. 170 21. United States v. Redman, 138 F.3d
LINKS!!! (1984) (no privacy interest in open ﬁeld
regardless of fences, signs saying “No
Trespass” or seclusion).
1109 (7th Cir. 1998), cert. denied, 119 S. Ct.
794 (no expectation of privacy in garbage
cans next to home when local ordinance
A New Research 9. United States v. Knotts, 460 U.S. 276 states it cannot be on street).
Tool for You (1983) (warrantless use of beeper on car to 22. United States v. Wilkinson, 926 F.2d
trace does not violate Fourth Amendment); 22 (1st Cir. 1991), cert. denied, 111 S. Ct. 2813
Visit the new “Links” section of United States v. McIver, 186 F.3d 1119 (9th (no expectation of privacy with trash on
NACDL’s Web site by clicking “Links” Cir. 1999) (magnetic electronic device okay). lawn and bags in wheelbarrows).
on any page of the site. 10. Texas v. Brown, 460 U.S. 730 (1983) 23. United States v. Long, 176 F.3d 1304
Explore a unique collection of links to (use of a ﬂashlight or binoculars not prohib- (10th Cir. 1999) (garbage bags atop trailer
hundreds of important Web sites of ited as a search); Val Chemical Company v. parked between a garage and alley not
interest to criminal defense lawyers: United States, 476 U.S. 227 (1986) within curtilage).
(enhanced vision permissible but not a 24. United States v. Wright, 991 F.2d
■ bar associations device used to penetrate walls or windows 1182 (4th Cir. 1993) (expectation of privacy
■ public defender ofﬁces to see or hear); United States v. Lee, 274 U.S. in barn but ofﬁcer could look in windows).
■ federal, state & local agencies
559 (1927) (cite with use of search light per- 25. United States v. Hendrick, 922 F.2d
■ federal & state courts
missible). 396 (7th Cir. 1991), cert. denied, 112 S. Ct. 147
■ legal research
11. United States v. Dunn, 480 U.S. 294 (garbage cans in driveway 20 feet from
■ forensics resources
(1987) (curtilage determined by consider- garage and 50 feet from back door were still
■ investigation online
ing proximity to residence, whether the within curtilage).
■ issues & organizations
same enclosure has house, nature of uses 26. United States v. Scott, 975 F.2d 927
■ legislative resources
and steps to shield from observation). (1st Cir. 1992), cert. denied, 113 S. Ct. 1871
12. United States v. Cormier, 220 F.3d (shredded garbage outside curtilage not
We want additional links! Please 1103 (9th Cir. 2000) (no expectation of pri- protected).
e-mail suggested links to Steven vacy in guest registration); United States v. 27. United States v. Shanks, 97 F.3d 977
Frazier – firstname.lastname@example.org Willis, 759 F.2d 1486 (11th Cir. 1985). (3rd Cir. 1996), cert. denied, 117 S. Ct. 1002
13. United States v. Jeffers, 342 U.S. 48 (garbage adjacent to garage and placed in
WWW.NACDL.ORG (1951) (Fourth Amendment extended to alley outside curtilage).
hotel room); Stoner v. California, 376 U.S. 483 28. United States v. Reilly, 76 F.3d 1271
30 W W W. N A C D L . O R G THE CHAMPION
(2nd Cir. 1996) (curtilage within 100 yards of 37. United States v. Gooch, 6 F.3d 673 1992) (no violation of Fourth Amendment
main house when residence is on property (9th Cir. 1993) (person has no expectation of to look through windows of camper).
of ten acres with fence and other indica- privacy in a tent pitched on a public camp- 39. United States v. Morehead, 959 F.2d
tions of private use). ground); United States v. Rigsby, 943 F.2d 1489 (10th Cir. 1992) (no violation of Fourth
29. Taylor v. United States, 286 U.S. 1 631 (6th Cir. 1991) (mere presence of tent Amendment to look through windows of
(1932); United States v. Frazin, 780 F.2d 1461 does not create the privacy interest in the camper).
(9th Cir. 1986) (no distinction between non-private area surrounding it). 40. United States v. Grifﬁn, 827 F.2d
attached garage from rest of home). 38. United States v. Schroeder, 129 F.3d 1108 (7th Cir. 1987).
30. United States v. Gooch, 6 F.3d 673 439 (8th Cir. 1997), but see United States v. 41. Oliver v. United States, 466 U.S. 170
(9th Cir. 1993); LaDuke v. Nelson, 762 F.2d Eastland, 989 F.2d 760 (5th Cir. 1993) (motor (1984).
1318 (9th Cir. 1985) (tent on private proper- home in an “open ﬁeld”); see also United 42. Martinez-Fuerte v United States. ,
ty); but see United States v. Rigsby, 943 F.2d States v. Morehead, 959 F.2d 1489 (10th Cir. 428 U.S. 543 (1976). ■
631 (6th Cir. 1991) (no indication tent was
like home), cert. denied, 503 U.S. 908 (1992).
31. Michigan Department of State About the Authors
BOUNDARIES OF THE FOURTH AMENDMENT
Police v. Sitz, 496 U.S. 444 (1990); see also Jon M. Sands is a Federal Public Defend- Robyn Greenberg-Varcoe is a Federal
Delaware v. Prouse, 440 U.S. 648 (1979) (road ers in Phoenix, Ari- Public Defenders in
block for purpose of verifying drivers’ licens- zona. bio and photo Phoenix, Arizona.
es and vehicle registrations). to come. bio and photo to
32. City of Indianapolis v. Edmond, 121 come.
S. Ct. 447 (2000).
33. Katz v. United States, 389 U.S. 347 Authors
(1967) (telephone booth). Please send new color photos and bio to be congruent
34. Exclusionary rule suppresses legally
with our new design. email@example.com
seized evidence. Weeks v. United States, 232
U.S. 383 (1914) (origin of the rule in federal
courts); Silverthorne Lumber Co. v. United Jon M. Sands Robyn Greenberg-Varcoe
States, 251 U.S. 385 (1920) (“fruit of the poi- Federal Public Defender Ofﬁce Federal Public Defender Ofﬁce
soned tree” origin); Mapp v. Ohio, 367 U.S. 222 N. Central Avenue, Suite 810 222 N. Central Avenue, Suite 810
643 (1961) (rule applied to states). Phoenix, AZ 85004 Phoenix, AZ 85004
35. California v. Carney, 471 U.S. 386 (602) 382-2742 (602) 382-2742
(1985). Fax (602) 382-2800 Fax (602) 382-2800
36. United States v. McIver, 186 F.3d E-MAIL E-MAIL Jon_Sands@fd.org
1119 (9th Cir. 1999).
lateson DWI Detection and
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Abstract: The bible of DUI SFSTs. The procedures
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ditions. This is the manual used to teach police ofﬁ-
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— a powerful tool to have before you when cross-examining the administering ofﬁcer. This
manual features tabs for easy referencing in a bound book format. Cost: $150 (includes S&H)
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W W W. N A C D L . O R G AUGUST 2002 31