1 This Bulletin is copyrighted by Stanley Cohen and Police Law Services. Forwarding copies of this Bulletin to persons who are not subscribers and who are unauthorized to receive it is prohibited without the express written consent from Police Law Services. Volume 41 January 2013 The Pennsylvania Police Criminal Law Bulletin In Memoriam Police Officer Kevin A. Tonn, 35, Galt Police Department, CA, 1/15/13, was investigating a burglary at 11:20 am., when a witness pointed to a man nearby. As Officer Tonn approached the man, the man produced a gun and fired a single shot hitting Officer Tonn in the head. The Officer died at a hospital a short time later. The man fired at another officer then committed suicide. The officer was not wearing a ballistic face shield which would probably have deflected the bullet and saved the officer s life. A burglary in progress is a high risk situation justifying wearing a ballistic face shield. This is a new offer by The Pennsylvania Police Criminal Law Bulletin. The searchable disc containing all issues of the Bulletin from the first one through and including the December 2012 Bulletin, is available to new purchasers for $ The following is the new offer: once the disc is bought, and this applies to those who have already previously purchased the disc, you will be able to thereafter receive an updated disc once every six months for a one time yearly price of $ In this way, you will have all published Bulletins from January 1972 through and including the last monthly published Bulletin, twice a year, or every six months, with the most recent important court decisions essential to the needs of the police professional. So, for $3.75 per month ($45.00 divided by 12) you will receive an updated and revised disc containing court decisions from January 1972 through the most recently published Bulletin twice a year and you will be notified by of any changes in law affecting your practices. The changes, of course, will be made to the disc constantly during the year, so you will get the changes when you receive your updated disc in the mail twice a year. The disc is a great supplement to receiving each monthly Bulletin by which costs an additional $ per year to individual police officers paying with their own funds. This offer is not available to a municipal police department. The price for an subscription to the Bulletin each month by a municipal police department with five or less officers who will receive the Bulletin is $ The price is $9.00 per officer if six or more officers will receive the Bulletin. The price is determined by number of officers in the department who will be receiving the Bulletin. A feature of receiving the Bulletin by each month, in addition to the monthly updated disc, that is not available with the updated disc is this: The moment a new court decision is briefed within a day or two after the decision is rendered by the court, it is ed to you immediately and you have it months before the updated disc is mailed to you and before the monthly Bulletin is ed. Most of these briefed cases will eventually be published later in the monthly ed Bulletin and in the updated disc you will receive. Also, Memorandums of Law are ed to you immediately after they are completed and you thus receive them months before you receive them in the updated disc and the monthly ed Bulletin. Some Memorandums you will receive do not appear in the Bulletin due to space limitations in the Bulletin. For a nominal fee, I will research legal questions from police officers subscribing to the ed Bulletin and send a Memorandum of Law to the officer answering the question based on Pennsylvania and federal appellate court decisions. The entire disc containing 3754 pages and court decisions from the year January 1972 through December 2012 can be scanned in seconds using Adobe Reader, identifying one or more court decisions dealing with the word or phrases you entered in the search space. If you have a lap top computer containing the disc on it (you can download the disc onto your computer s hard drive) and you are in court, and the defense counsel makes a motion to the court to dismiss the charge and/or suppress the evidence, you would be entitled to respectfully request the court to grant you a brief recess to research the law on your laptop to find case law to submit to the court that will counter and defeat the argument made by defense counsel. Also, you may choose to call me, Stanley Cohen, at at any time and he will research the issue for you and immediately send you any case law he finds to use against defense counsel. He carries a laptop computer containing the disc wherever he may be. Ideally, defense counsel s arguments should and can be foreseen prior to
2 Page 2 January 2013 The Pennsylvania Police Criminal Law Bulletin (ISSN ) Is published monthly, plus a yearly index in January by Stanley Cohen at 3027 N.W. 66th St., Seattle, WA 98117, at $48.00 per year. Telephone: or ; Periodicals postage paid at Seattle, WA, and at additional mailing offices. Postmaster send address change to The Pennsylvania Police Criminal Law Bulletin at 3027 N.W. 66th St., Seattle, WA trial, and the officer can research the law on the disc to prepare for trial like the District Attorney does, and also ask Stanley Cohen to research the law on the disc for you. In addition to the disc, I have access to Fastcase, a powerful digital law research data base I subscribe to from Jenkins Law Library, which enables me to find in seconds numerous court decisions of Pennsylvania and federal appellate and trial courts and any state appellate court decision in the nation dealing with your question or problem. Cases found which are helpful to answering your question or solving your problem are sent to you immediately. In addition to containing all published Bulletins, the disc, which consists of 3754 pages, contains: Memorandums of Law containing legal issues submitted by Pennsylvania police officers and Stanley Cohen s answers to each issue based on his research of Pennsylvania and federal law and Rules of Criminal Procedure, 2. Stanley Cohen s book, POLICE LAW PROBLEMS AND SOLUTIONS, 249 pages, containing questions Pennsylvania police officers asked Stan, an active Attorney at Law, over a span of 30 years, and his answers to each question based on his research of Pennsylvania and Federal court decisions, statutes and Pennsylvania Rules of Criminal Procedure. 3. A COMPETE SET OF ALL YEARLY INDEXES at the front of the disc covering all the yearly Bulletins from January 1972 through December The index for the year 2012 will be published in early New yearly indexes are continuously added to the disc. If you would like to purchase the disc for the first time, please complete the form below and to and the disc will be mailed to you and you will be invoiced. If you have previously purchased the disc, please complete the form below and the updated disc will be mailed to you and you will be invoiced $ (You will receive two updated discs per year. At the end of the year, you will be asked to renew for the then yearly cost to receive an updated disc every six months. Name Department name Street address City Zip address Telephone number Place your name on this line if you are a first time buyer and you will be invoiced $ Place your name on this line if you are a previous buyer and the date when you bought the disc and you will be invoiced $45.00 to receive two updated discs per year, once every six months. Place your name on this line if wish to receive the Bulletin by and you are an individual officer paying with your own funds, and you will be invoice $ Place your name on this line if you wish to receive the Bulletin by and you are subscribing for the entire police department and there are five or fewer officers in the department who will be receiving the ed Bulletin and you will be invoiced $ Place your name on this line if you wish to receive the Bulletin by and you are subscribing for the entire police department and there are six or more officers in the department who will be receiving the ed bulletin and you will be invoiced at the rate of $9.00 times the number of officers receiving the Bulletin. Please place the number of officers in the department who will receive the Bulletin on this line.
3 Page 3 January 2013 MEMORANDUM OF LAW BY STANLEY COHEN, ATTORNEY AT LAW FEBRUARY 6, 2013 ISSUE SUBMITTED BY PENNSYLVANIA POLICE OFFICER Stan, checking on any case law that shows that police officers (in addition to reading Miranda and acknowledging it is understood) must have the suspect sign a waiver or ask them if they waive their rights. Had a suppression hearing today and that is one of the defense positions. The second question relates to the suspect in an interrogation room who is advised that he is being audio and video recorded making a statement I am not talking to you but within 4 seconds begins a conversation with an investigator simultaneously walking into the room. No Miranda warnings were given to him prior to him saying he did not want to talk to us. Is that an exercise of his right to remain silent. At no time during the entire time did he say he wanted to be silent or that he wanted to speak to an attorney. The suspect begins the conversation by saying he is high and I begin (without Miranda) talking to him in general and about the events earlier to establish whether or not the suspect is under the influence, knowing fully that those statements cannot be used against him. After about 12 mins and 45 seconds I determine he is sober and verbally advise him of his Miranda warnings which he acknowledged 2 times, once with a mumble and nod, then with a yes after pushed by me. He then went back and discussed his involvement with shooting the officer and the robbery prior to the shooting. Interestingly, at his request after I asked if there was anyone I could call for him. He asked to speak to his father. I grant that request and put the father on speakerphone (he was advised) and the suspect stated to his father he shot the officer. That was based on his conversation with his father. CONCLUSION AND LAW Concerning the issue of whether the statement I do not want to talk is an assertion of the right to silence, this was not an assertion of the right to silence which prevented police from asking him questions. There are two reasons for this: First, in Ohio v. Dixon, cited below, the Supreme Court stated that we have never ruled that a person can invoke his Miranda rights anticipatorily when there is no custodial interrogation situation. When the suspect in this case said, upon first entering the room and being told there is audio and video recording here, I do not want to talk, this was not a custodial interrogation situation. Although he was in custody, interrogation had not begun and as not going to be engaged in by the Chief. Interrogation is questions the officer knows is likely to cause the person to make an incriminating statement. The Chief was initially going to ask questions regarding his name, age, address, and other questions not likely to cause an incriminating statement. Thus, since custodial interrogation situation was not present, the suspect could not, as the Supreme Court held, assert a right to silence prior to interrogation. So, it was permissible for the Chief to ask the general questions as well as to determine his mental and physical condition to see if he was capable of understanding his rights and giving a voluntary waiver. Second, in Berghius v. Thompkins, cited below, the Court ruled that the invocation of the right to remain silent must not be ambiguous or equivocal. The Court continued by saying that if an ambiguous statement could require a police officer to end the interrogation, this would add little to the goal of getting rid of compulsion inherent in custodial interrogation. But, as Miranda holds, full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion or compulsion is inherent in the interrogation process. Then the Court added that the defendant did not say he wanted to remain silent or that he did not want to talk with police. Had he made either of these clear statements, he would, the Court stated, have invoked his right to cut off questioning. But he did neither, so he did not invoke his right to remain silent. Applying these rules and statements by the Supreme Court to the facts in the issue submitted by the Chief, when the defendant was told the room was with audio and video, he said, I do not want to talk to you. This was ambiguous. He had not been previously given the Miranda warnings, which would have told him he has a right to silence and not to not talk with police. His statement is not clear as to who or why he did not want to talk. His subsequent statement telling police it was ok to talk with him clarified that he did not want his statement to amount to an invocation of his right to silence. Had he wanted that statement to be an assertion of his right to silence, he could have simply refused to answer the Chief s questions. After defendant said, he did not want to talk, The Chief sat down in front of him and asked defendant
4 Page 4 January 2013 if it was ok to talk to him and he said yes it is ok. Like the Supreme Court said, if his statement, I do not want to talk, was an invocation of his right to silence under Miranda, which had not yet been read to him, he would not have said ok to the Chief that it was ok to talk to him. He would have cut off the questioning. But, since he did not cut off questioning, and instead said it was ok to question him, his earlier ambiguous statement I do not want to talk was not an invocation of his right to silence. He clearly did not want to be silent. At some point, assuming the questions were such that the Chief knew they would cause an incriminating statement from the suspect, then the warnings were required because interrogation was going to occur, but the Chief failed to give the warnings and got some incriminating statements. The Chief s intent was not to get incriminating statements, but rather to determine if the suspect was capable of understanding the warnings and giving a valid waiver. Once the Chief determined that he was so capable, he gave the Miranda warnings for the first time and got a waiver and then the suspect gave more incriminating statements. The Supreme Court held that this procedure followed by the officer, question first then give the warnings, was lawful in the cases cited below. As discussed above, The Supreme Court in Dixon, ruled that when a police officer fails to give the warnings prior to the first incriminating statements, but this failure was not intended or deliberate by the officer, although these statements must be suppressed, any statement the suspect makes after the officer gives the warnings and gets a waiver, are admissible. This same rule was adopted by DeJesus and Charleston cited below. One issue that is involved that is not in the officer s statement of issues that is involved in this case, as just discussed, is this: Where an officer interrogates a person in custody before giving the Miranda questions and gets incriminating statements, then gives the Miranda warnings and gets a waiver, will incriminating statements given after the warnings be admissible? This issue arises from the fact that when the Chief of Police entered the room, he began asking the suspect questions of a general nature to determine his state of mind and whether he was capable of understanding his rights and giving a voluntary waiver. These questions were not interrogation because they were not likely to cause an incriminating statement. Some of the later questions dealt with and involved the crime and constituted interrogation because they were likely to cause incriminating statements. And, the warnings had not been given first. These statements, the Court ruled, would not be admissible. Then, the Chief paused and gave the suspect the Miranda warnings for the first time and got a waiver. The Court ruled that these statements obtained after the warnings would be admissible. The following case law supports the admissibility of the statements, as discussed above, after the Miranda warnings were given and a waiver was obtained. In Ohio v. Dixon, 132 S.Ct. 26, (2002), and Commonwealth v DeJesus, 787 A.2d 394 (2002), and Commonwealth v Charleston, 2011 Pa. Super 32 (2011) and in the April 2011 Pennsylvania Police Criminal Law Bulletin, the U.S Supreme Court and the Pennsylvania appellate courts ruled that statements given after the warnings are admissible. Concerning the issue of whether, after a police officer gives a suspect in custody the warnings, must the officer have the suspect sign a waiver or ask them if they waive their rights in order to get a valid waiver, this issue was answered no by the Supreme Court in Berghius v. Thompkins, 130 S.Ct (2010), where the court ruled that a waiver must be voluntary and must be the product of a free and deliberate choice by the suspect. Waivers, the Court added, may be obtained by police even without a formal or express statement of waiver. A waiver, the Court ruled, may be implied from all the circumstances, such as where the suspect understood his rights, and then he gave an unforced statement. The waiver need not be in writing and he need not expressly say he does not want to assert his rights. In the Chief s case, defendant waived his right to silence because, as the Court ruled, he chose not to invoke those rights when he did speak and answered the Chief s questions. He knew what he gave up when he spoke. The defendant had experience with the criminal justice system and understood his right from past experience. If defendant had wanted to remain silent, like the Court said, he could have refused to answer the Chief s questions, or asserted his rights and ended the interrogation. The fact that he made statements to the Chief is a course of conduct by the defendant indicating a waiver. After giving the warnings, the Court concluded, police may interrogate the suspect who has neither invoked nor waived his rights before starting the interrogation. A suspect waived his
5 Page 5 January 2013 rights, the Court added, where he understands his rights, and has not asked to be silent or has not asked for an attorney, by making an unforced statement to police. In this case, the defendant did not ask for an attorney or to be silent while making the unforced statement to the Chief. He did not ask that the interrogation stop. Thus, as the Court ruled, the Chief was not required to obtain a waiver of his rights before interrogating him. This rule by the U.S. Supreme Court is followed by the Pennsylvania Superior Court in Commonwealth v. Baez, 21 A.3d 1280 (2011) and has not been reversed by the Pennsylvania Supreme Court, and this is valid and binding law on Pennsylvania lower courts. In Baez, police gave a defendant the Miranda warnings and asked him if he understood them, and he said yes. Baez then proceeded to answer the officer s questions, and made incriminating statements. The police did not ask him if he was willing to give up his rights or whether he was willing to waive those rights prior to questioning him. Prior to trial Baez moved to suppress his statements and the trial court suppressed the statements, and the Commonwealth appealed. One issue on appeal was whether it was error for the trial court to suppress the statements, and whether it was error for the trial court to rule that Baez did not waive his rights. The trial court suppressed the statements because Baez did not explicitly say he did not want an attorney or to remain silent. The appeal court reversed the trial court by reasoning as follows. Baez stated that he understood his rights and then he answered police questions. This showed his intent to waive his rights. We do not require that a defendant expressly say he wants to give up his right to silence or to an attorney, and no written waiver of rights is required. Defendant indicated that he understood his rights, and then he proceeded to answer the officer s questions. This is sufficient to show he waived his rights. Applying these rules to the facts in this case, the Chief asked defendant if he understood his rights and defendant said yes. He then proceeded to answer the Chief s questions. This is sufficient, line in the Baez case, to show that defendant waived his rights, even though he did not expressly say he did not want an attorney or to be silent, and even though he did not sign a written waiver of rights. For the foregoing reasons and under the decisions cited above, defendant s statement are admissible. Taser, police use on resisting citizen being arrested with an invalid arrest warrant are entitled to qualified immunity, even though they violated the Constitution, when Bello v. Lebanon City Police United States District Court for the Middle District of Pennsylvania (1/3/13) Civil No. 1:11-CV-0639 Facts Bello was arrested for public drunkenness and Driving while under the influence. A bench warrant was issued for his arrest when he failed to appear for his preliminary hearing. He failed to show for another hearing. A police officer checked with an office to see if a bench warrant was issued for Bello. The officer found an outstanding warrant and gave it to the officer. The officer went with another officer to a store Bello owned. The officer believed Bello was armed because his store had been robbed in the past. The officer approached Bello and old him they had a warrant for his arrest due to his failure to appear at his preliminary hearing, and that he was under arrest. The officer showed Bello the warrant. Bello became agitated, arguing that the warrant was not valid. He raised his voice to the officers. One officer told him to place his hands behind his back. He refused arguing the warrant was not valid. The officers upholstered their tasers. Bello continued to be non compliant with the officer s command to put his hands behind his back. Bello put his hands up and told the officers he was in possession of a gun. At a later time, he claimed he had a license for the gun and he used it for protection. It is not clear that he told this to the officers. The officers claimed that he was holding the gun before he was tasered. They used their taser as soon as they saw the gun. Bello fell to the ground but was not incapacitated. They tasered him again in the chest when the gun was still within his reach. He was still resisting the handcuffs. One officer gave him a knee strike. The officer finally took him to the station. At the station, they were advised by the Sheriff s Department that the warrant had been served previously and was no longer active. Bello sued the officers and the officers
6 Page 6 January 2013 moved for summary judgment in their favor and for qualified immunity. Bello also sued the City for violating his rights. Issues 1. Whether the officers are entitled to qualified immunity for the use of the teaser? 2. Whether the City of Lebanon is liable for any violation of plaintiff s rights? Decision Yes to issue one and no to two. Qualified immunity is granted. Reasoning A court may grant qualified immunity to a police officer if it is apparent that the officer did not violate rights that were clearly established at the time the officer acted. To establish an excessive force claim against a police officer, the citizen must show both that a seizure occurred and that it was unreasonable. Reasonableness is determined by a court as follows: Whether the force used by the officer was excessive and unreasonable depends on what the officer was confronting at the time he acted, and not on facts that are learned at a later time. Factors that a court must consider are as follows: (1) The severity of the crime involved; (2) whether the citizen poses an immediate threat to the safety of the police or others; (3) Whether the citizen is actively resisting arrest or trying to run away; (4) the duration of the action; (5) The possibility that the citizen might be armed; (6) the number of persons with whom the police must contend at one time. The court must be sensitive to the fact that police officers are often forced to make splitsecond judgments, in circumstances that are tense, uncertain, and rapidly evolving, about the amount of force that is necessary in a particular situation. Considering the facts alleged by the officer-defendants on the one hand, and the facts alleged by Bello on the other, the court finds that they cannot be evaluated without credibility determinations and a resolution of these facts at a trial. So, on this basis the motion for summary judgment by the officers must be denied. But, the Court will grant the motion for summary judgment in favor of the officers because, assuming that the actions by the officers were unreasonable and amounted to excessive force in violation of the Fourth Amendment, Bello, the plaintiff, has failed to show that the officers violated a clearly established right A right is clearly established if a reasonable police officer would understand that what he is doing violates that right. It must be shown that every reasonable police officer in the defendantofficer s shoes would have understood beyond debate that tasering Bello would have constituted excessive force. Qualified immunity provides police officers with ample room for mistaken judgments by protecting all police officers except those who are plainly incompetent or who knowingly violate the law. The following undisputed facts show the officers are entitled to qualified immunity. (1) The officers were given bench warrants for Bello by an office, which they had no reason to believe, was invalid. (2) Bello disputed the validity of the warrant and raised his voice to the officers, (3) Bellow refused to comply with police orders, (4) Bellow was in possession of a gun at the time of the arrest, (5) during the arrest, Bello grabbed his gun, held it in his hand, and then put it on or below the counter. These require that we grant qualified immunity to the officers, because not every reasonable officer in the shoes of the defendant officers in this case, would find beyond debate that tasering Bellow constituted excessive force. At the time the defendant officers used the teaser, numerous courts had approved the use of teasers to subdue persons who resist or refuse to comply with police orders. Thus, if courts have approved this level of force under these circumstances, it cannot be said that the officer-defendants were plainly incompetent or knowingly violated the law. Even if police action violates the Constitution, where a significant number of court decisions support whet the officer defendant did, we have upheld qualified immunity for the officers. The fact that the warrant was inactive does not go against the officer-defendants because what matters is what the officers knew at the time they made the arrest, not what they learned after that time. The officer defendants are hereby granted qualified immunity, which means they will not be required to stand trial. Concerning the liability of the City of Lebanon, the plaintiff must allege that the city itself caused a constitutional violation. Plaintiff must allege that a municipality custom or policy was the cause of the constitutional injury that was suffered by the citizen. The custom or practice must be so permanent and well settled that it constitutes the law. A policy is established if a plaintiff can show that a decision maker having final authority to establish municipal policy with respect to the action issues and official proclamation, policy or edict.
7 Page 7 January 2013 In an excessive force liability claim, the court looks for evidence of a custom or policy involving a failure to properly train, equip or supervise officers on the proper use of force, and the use of tasers. The officer defendants testified that they were properly trained in the procedures regarding the appropriate use of force to make arrests, including the proper use of a taser. Plaintiff offers no evidence or argument to the contrary. Plaintiff s claim of municipal liability fails because he failed to produce any evidence of a policy or custom that violates Section Defendants motion will therefore be granted as to this claim. Interrogation, after defendant, who is in custody, and after receiving the Miranda rights, he tell police he wants an attorney and police stop the interrogation, but, then, after being told he was being arrested for the homicide of his daughter, he restarts a discussion with the police by telling them that he wants to talk with them about his daughter, and the signs a form waiving his Miranda rights, and gives a incriminating statement, this constitutes a valid waiver of Miranda rights Commonwealth v Page Superior Court of Pennsylvania (1/7/13) No WDA 2010 Facts A little girl was missing from her home. Investigation led police to the defendant. They removed him to the police station. He was given the warnings before interrogation and he waived his rights. He was next interrogated by the FBI but not rewarmed because he had been previously armed. Police found the body of the girl and told defendant. He was questioned by another officer and was given the warnings first. Defendant said he wanted to talk to his lawyer and interrogation stopped. The next day he was arrested and charged with homicide. Defendant then told police he wanted to talk to them and he was given the warnings and he executed a Miranda rights warning form. He then gave an incriminating statement. Defendant was charged with criminal homicide and other charges. Defendant s motion to suppress his statement was denied. Defendant appealed. Issue Where defendant, who was in custody, and after receiving the Miranda warnings, told police he did not want to talk without an attorney present, then after being arrested for the homicide of his daughter, he told police he wanted to talk to them about his daughter, he was given the warning again and signed a waiver form, and gave police an incriminating statement, did his talking to the police constitute a waiver of his rights? Decision Yes. Affirmed Reasoning There were four separate interrogations. During his fourth and final interrogation, he made an incriminating statement. Defendant claims that once he asserted his right to an attorney, any further interrogation without an attorney present was unlawful unless he initiated further discussion with police and waived his rights. He claims he did not restart discussion with police and did not waive his right to counsel. The trial court stated that after defendant was arrested for the girl s death, he told police he wanted to tell them what happened to his daughter. The trial court stated that thus, he initiated conversation with police and this amounted to a waiver of his rights. We agree with the trial court. Defendant did invoke his right to counsel and police stopped the interrogation. But, then police told him he was being arrested for the homicide of his daughter. At that point, defendant expressed an interest in speaking with the detectives about the incident. When he expressed an interest in talking about his daughter, this was a restarting the discussion by the defendant. At that point he was given the Miranda warnings again and he signed a form waiving his rights. Defendant then gave incriminating statements. Defendant waived his rights when he restarted the discussion and told police that he wanted to tell them what happened to his daughter, and when he talked to the police. Thus, by initiating a conversation with police, defendant knowingly waived his rights that had previously been explained to him, and gave an incriminating statement. His rights were therefore not violated and it was proper to deny his motion to suppress. (Note by Stan: Even though this decision was by an appellate state court decision is not binding on Pennsylvania Courts, it may operate
8 Page 8 January 2013 as persuasive authority with Pennsylvania courts and be adopted as law in a particular case and help support a Pennsylvania police officer s case in court) Taser, even if use of the taser is unlawful, the evidence obtained need not be suppressed if the unlawful use of the taser dis not produce or cause the discovery of the evidence State v Herr Court of Appeals District II (2/6/13) No. 2012AP935-CR Facts A police officer saw defendant speeding and driving on wrong side of the road t 80 mph. Defendant increased his speed to avoid being stopped by the officer. His car was finally stopped and boxed in by several police cars. He remained in his car and refused to exit. He lit a cigarette. And did not put his hands out the window as ordered. One officer opened defendant s car door and fired his taser for a fivesecond burst because he feared that the pursuit might continue as he had the opportunity to put his car in gear and hit a police car or an officer. Defendant was arrested and convicted of DWI and other offenses. Defendant appealed on the ground that the evidence should be suppressed because the officer s unlawful excessive force caused the discovery of the evidence. Issue Where a police officer used excessive force on a defendant, must the evidence obtained be suppressed? Decision No. Affirmed. Reasoning Evidence will be suppressed if it is the product of illegal police conduct. But, if the interests that were violated by the unlawful police conduct have nothing to do with the seizure of the evidence, the exclusionary rule does not require suppression of the evidence. Even if police use excessive force, the defendant s remedy is to sue for damages in a civil suit, rather than suppression of evidence. Where there is no causal connect ion between the manner in which police used force or approached a car and the search that disclosed the evidence, the evidence need not be suppressed. Even if the excessive force had not been used, the evidence would still have been discovered. The police had probable cause to arrest defendant for DUI based on what they saw, even without excessive force used in making the arrest. There is no causal relation between the evidence and the amount of force used to arrest defendant. (Editor s Note: In a footnote, the Court stated that the officer s use of the taser in this case was most likely reasonable. Defendant s actions showed that he did not want to be taken into custody, and was willing to engage in dangerous and reckless behavior to elude arrest. These factors determine if a use of force was unreasonable: the crime is a serious one, the suspect poses an immediate threat to the safety of the officers or others, and the person is actively resisting arrest or trying to evade arrest by running away. These factors must be looked at in the same way the officer did, which often are tense, uncertain and rapidly evolvingabout the amount of force that is necessary in a particular situation. Applying these factors to the officer s use of the taser, his use of the taser was reasonable.) The Pennsylvania Police Criminal Law Bulletin 3027 N.W. 66th St. Seattle, WA Periodicals Postage Paid USPS
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San Diego District Attorney D.A. LIAISON LEGAL UPDATE (COPY - - DISTRIBUTE - - POST) Vol. 18 August 26, 2013 No. 8 Robert C. Phillips (858) 395-0302 Deputy District Attorney (Retired) RCPhill808@AOL.com