Monthly Archives: May 2023

Where a judge denied a defendants motion to suppress evidence found when the police stopped and frisked him, that ruling should be upheld because (1) the police had a reasonable articulable suspicion that the defendant had been involved in a shooting and (2) the commonwealth demonstrated an adequate, race-neutral reason for the stop, sufficient to rebut the defendants statistical evidence of discriminatory policing.

In the early evening of April 23, 2018, Boston police officers received reports of gunfire in a neighborhood near their headquarters. Approximately seven minutes later, three officers patrolling in an unmarked vehicle encountered two young Black men, the defendant and J.H. (a juvenile), walking away from the location where shots had been fired. The two were less than a mile from police headquarters and matched a barebones description of the shooters. The officers stopped and frisked the defendant and J.H. and discovered that each possessed a concealed handgun. The defendant subsequently was indicted on charges of discharging a firearm within 500 feet of a building, unlawful possession of a firearm, and related offenses.

The defendant filed a motion to suppress the evidence seized from his person, on the ground that the stop was in violation of the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights because the officers lacked reasonable suspicion to believe that he had committed a crime. The defendant also argued that the stop and frisk was unconstitutional because it violated his Federal and State rights to equal protection of the law. In support of his argument on equal protection, the defendant submitted statistical evidence that two of the police officers involved, who were assigned to the Boston police departments youth violence strike force, were more likely to stop Black members of the community than individuals of other races.

A Superior Court judge denied the defendants motion because he concluded that the officers had had reasonable suspicion to stop the defendant to investigate his involvement in the shooting, and reasonable suspicion that he was armed and dangerous to support the patfrisk for a weapon. In addressing the defendants equal protection challenge, the judge presumed that this courts revised standard for establishing an equal protection claim under the Massachusetts Declaration of Rights, which was adopted in the context of a traffic stop, see Commonwealth v. Long, 485 Mass. 711, 724-725 (2020), applied as well to a challenge of a pedestrian stop asserted to be racially motivated. The judge reasoned that, just as a racially motivated motor vehicle stop would be constitutionally problematic, a racially motivated stop of a pedestrian would also offend the constitutional right to equal protection. Notwithstanding the statistical evidence presented by the defendant, the judge then determined that the Commonwealth had satisfied its burden of establishing that the officers had had a race-neutral reason for conducting a threshold inquiry, and also for pat frisking the defendant for a weapon.

We conclude that the stop did not violate the defendants rights under the Fourth Amendment or art. 14, because the officers had had a reasonable articulable suspicion that the defendant had been involved in the shooting. We emphasize that the equal protection clause provides an independent basis upon which a defendant may rely in pursuing claims of intentional discriminatory application of the law, separate and distinct from the right to be free from unreasonable searches and seizures. We agree with the judge that the new standard we adopted in Long, 485 Mass. at 724-725, to provide a defendant a more accessible path to pursuing an equal protection claim in the context of a motor vehicle stop, is applicable not only to traffic stops, but also to other police investigations such as pedestrian stops. We also agree with the judge that, in this case, at the hearing on the defendants motion to suppress, the Commonwealth demonstrated an adequate, race-neutral reason for the stop, sufficient to rebut the defendants statistical evidence of discriminatory policing. Accordingly, we affirm the denial of the defendants motion to suppress.

In reviewing the judges decision, we first must determine whether the judge erred in applying the Long standard to a challenge to a pedestrian stop. We then must decide whether there was error in the judges conclusion that the Commonwealth met its burden of rebutting an inference of selective enforcement by articulating an adequate, race-neutral reason for the stop.

The issue having been squarely raised here, we conclude that the equal protection standard established in Long for traffic stops applies equally to pedestrian stops and threshold inquiries, as well as other selective enforcement claims challenging police investigatory practices.

Here, we discern no error in the judges conclusion that the Commonwealth rebutted an inference of selective enforcement raised by the statistical evidence. The Commonwealth demonstrated that the police officers had a race-neutral reason to have conducted a pedestrian stop of the defendant and J.H., the suspects in the case of reported shots fired. The second 911 caller introduced the suspects race to the investigation when she reported that she heard multiple 38 gunshots and then saw two Black men on bicycles wearing black hoodies. Within minutes of the 911 call, [Officer James OLoughlin Jr.] told the responding officers that he had seen two Black males, on bicycles, wearing black hooded sweatshirts, heading towards Heath Street. In short order, the officers located the suspects, who were walking in a direction consistent in time and direction with two individuals fleeing from a shooting on bicycles.

Here, the judge was required to determine whether the Commonwealth had rebutted the reasonable inference that the stop or investigation was not motivated at least in part by race or another impermissible classification. We conclude that the evidence supported the judges determination that police stopped the defendant to investigate his involvement in a recent shooting, and not because of his race.

As there was no violation of the defendants rights to be protected against unreasonable searches and seizures, and against selective enforcement of the laws, there was no error in the judges denial of the defendants motion to suppress.

Commonwealth v. Robinson-Van Rader (Lawyers Weekly No. 10-049-23) (41 pages) (Gaziano,J.) A pretrial motion to suppress evidence was heard by Peter B. Krupp, J., and a conditional plea was accepted by Mary K. Ames, J., in Superior Court. John P. Warren for the defendant; Kathryn Sherman (Michelle Slade also present) for the commonwealth; Chauncey B. Wood, Kevin S. Prussia, Timothy A. Cook, Asma S. Jaber and Douglas J. Plume submitted a brief for Massachusetts Association of Criminal Defense Lawyers, amicus curiae; Katharine Naples-Mitchell, Audrey Murillo and Radha Natarajan submitted a brief for Criminal Justice Institute at Harvard Law School and another, amici curiae (Docket No. SJC-13329) (May 15, 2023).

Click here to read the full text of the opinion.

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Search and seizure Equal protection Discriminatory policing - Massachusetts Lawyers Weekly

In a decision handed on Friday, United States v. Kopankov, the U.S. District Court for the Northern District of California (Jacqueline Scott Corley, J.) suppressed the fruits of a computer warrant search because it took the government too much time to bypass the device's encryption. Specifically, the magistrate judge who issued the warrant had imposed an extra limit on the warrant requiring the government to forensically search the seized computer quickly, and to request extensions from the court asking for more time if it needed longer. But the government could not bypass the encryption on the computer an Apple iPhone X other than by trying a "brute force" attack to guess all the possible passwords. The government did get one extension giving it more time. But it ended up taking three years for the brute force attack to guess the correct password. By that time, the extension had itself expired.

In the new ruling, Judge Corley suppresses the fruits of the search because the brute force attack did not succeed until after the extension had expired. Specifically, the government mirrored the decrypted device (generating a copy to be searched) before applying for another search warrant to search the device. Judge Corley concludes that the mirroring was a warrantless search that requires suppression of the evidence found on the warrant.

I think this ruling is wrong. Not only should the evidence not be suppressed; there was no legal violation at all. The government had a valid search warrant, and there is no principle of law that makes a defendant's ability to slow down a search by using encryption a legal basis for suppressing the evidence when the search eventually succeeds. In this post, I will explain why.

I. Background on Ex Ante Restrictions on Computer Warrants

First, some context. I have written over the years about ex ante search restrictions in computer search warrants. These are limits sometimes added to computer warrants that purport to control ex ante the details of how the warrant is executed. With traditional warrants, the warrant authorizes the search, and Fourth Amendment doctrine regulates the reasonableness of the warrant's execution. With ex ante restrictions, though, the warrant itself will include detailed limits on how the warrant will be executed. The limits might be on who can search the device, or when, or where. It might be about what steps are taken when the warrant is executed. It's all up to the discretion of the magistrate judge.

One of the issues that has come up from time to time is why or whether ex ante restrictions matter. In particular, if the government violates an ex ante restriction, what is the remedy?

I have argued that there is no remedy. In my view, as explained in detail here, the Fourth Amendment does not permit magistrate judges to impose ex ante restrictions on warrants. The law of executing warrants has to be based on Fourth Amendment law, not individual-warrant-condition-by-individual-magistrate law. As a result, in my view, the government is entirely free to disregard ex ante restrictions and there is no legal wrong, or legal remedy, if they choose to do so. The government has to follow the law of Fourth Amendment reasonableness, of course. But individual warrant restrictions don't determine reasonableness; Fourth Amendment law does.

If that seems odd to you, you should read the Supreme Court's decision in Richards v. Wisconsin, on whether a warrant can be executed as a no-knock warrant. Richards held that the fact that the issuing magistrate had said the warrant could not be executed as a no-knock warrant was irrelevant to whether it could be. That wasn't a decision for the magistrate judge to make, so the magistrate judge's determination was entitled to zero deference. Reasonableness was determined by the facts that existed when the agents executed the warrant, Richards held, not the magistrate's view of how the warrant should be executed when reviewing the warrant application. In my view, that same standard naturally applies to ex ante limits in computer warrants.

II. The Nicholson Precedent in the Eleventh Circuit

A recent decision of the Eleventh Circuit came at least somewhat close to this position. In United States v. Nicholson (2022), the magistrate judge required that the computer to be seized must be forensically searched within 60 days of the warrant being issued. The government searched the computer after 60 days had passed, however. The Court ruled that this did not violate the Fourth Amendment, as there was no Fourth Amendment limit on when the forensic search occurred after the computer was seized. So far, so good.

Nicholson erred, though, in my view, at the next step. Instead of saying that there was no remedy at all, however, the court (per Brasher, J.) stated that the ex ante warrant violation was "comparable to a violation of Rule 41 of the Rules of Criminal Procedure, which contains a temporal limitation similar to the magistrate judge's addendum." This is, to my mind, rather puzzling. We normally base remedies on the source of the law violated, not whether the violation resembled a violation of some other authority that serves a sort of similar function as the one at issue. But that led the court to look at whether there was an intentional violation of the ex ante restriction, part of the Rule 41 suppression standard. Because the violation of the ex ante restriction was unintentional in that case, there was no suppression of the evidence.

Whatever you think of Nicholson, at the very least it should be clear, from Richards, that ex ante restrictions are not themselves binding and are not themselves Fourth Amendment law. A magistrate judge can add any restriction they want to the warrant, at least in theory. Maybe the restriction is that the forensic process can only be executed if the forensic expert's middle name is Herbert, or if it's Tuesday between 2:00 and 2:07pm, or if the forensic expert is listening to John Coltrane's "A Love Supreme." These are not restrictions on reasonableness, as reasonableness is already provided by Fourth Amendment law; all the ex ante restrictions can do is add non-Fourth-Amendment-limits outside reasonableness.

III. The new decision in United States v. Kopankov

In the new case, the government seized the defendant's iPhone on the defendant's arrest on April 3, 2019. On April 9, 2019, six days later, it obtained a warrant to search the phone. The local forensics lab couldn't break into the phone, though, so the phone was sent to the FBI. In 2020, the FBI started a brute force attack on the phone to try to get in, repeatedly guessing combinations of 6-digit passcodes. The brute force attack succeeded three years later, on May 2, 2023.

What's the problem? The 2019 warrant had an attachment, Attachment C, in which the warrant had a condition that the government had to execute the warrant in a certain number of days. In particular, there was a time limit on how quickly the government had to make a mirror image of the phone to begin the search. When the brute force attack began, the government applied for and obtained an extension of that time, until June 20, 2021. But the brute force attack didn't succeed until almost two years later, in May 2023, at which time a mirror image was made before the government applied for another warrant to search the image.

So what's the legal relevance of the violation of the ex ante restriction? Judge Corley treats the violation of the ex ante restriction as if it nullified the existence of the warrant. Because the government did not get another extension, and the brute force attack did not succeed until after the extension had expired, any search that occurred after the extension expired was warrantless and therefore violated the Fourth Amendment. Judge Corley puts this starkly: "The government got a warrant. But it expired."

As I explained above, that is completely wrong, in my view. See Richards, etc. But with that faulty premise as the foundation, Judge Corley then looks to whether the government engaged in a post-expiration search. The government argues that it made the mirror-image but did not search the phone before it applied for another warrant. But Judge Corley concludes that making an image is actually a search:

The examiner declared he "physically took the device, unlocked the device using the passcode, and plugged it into a GrayKey device (which resembles a small box), using the DEVICE's 'lightening' port." (Dkt. No. 304-5 33.) And he did so to download the contents of Defendant's phone onto a USB drive. (Id. 32.) Put differently, that physical invasion into Defendant's constitutionally protected device downloaded "the privacies" of Defendant's life. Riley, 573 U.S. at 403. That physical invasion constitutes a search. Cf. United States v. Sam, No. CR19-0115-JCC, 2020 WL 2705415, at *2 (W.D. Wash. May 18, 2020) (powering on a phone to take a photo of the phone's lock screen constituted a physical search).

Because it was a search, it was a warrantless search, and the evidence found on the phone is a fruit of that unlawful mirror image should be suppressed:

The examiner effectively stood on Defendant's doorstep and tried fitting different keys into his front door lock for years after the warrant expired. Then, when the door finally opened, the government entered the threshold and seized the information therein and reviewed some (but admittedly not all) of it. Now the government asks to excuse this unlawful entry because the government "had been hoping for the phone to be accessed for years." (Dkt. No. 304 at 8.) Maybe so. But they only got a warrant after the illegal search yielded the information they hoped for. Put differently, if the government's conduct were excused here, [the list of ex ante restrictions], which was expressly part of the warrant, would become a nullity because its carefully calculated time limits would be meaninglesss.

Further, the good faith exception applies because deterrence is needed to make sure the government stays focused on getting lots of extensions for phone warrants over the years to allow brute force attacks to go on:

The government claims this situation is unlikely to reoccur. But the evidence is to the contrary. The government's declarations describe "entire racks of phones" undergoing "brute force attacks for years." (Dkt. No. 304-4 11.) So this not only can, but will happen again unless the government ensures it has a validand generally required warrant to peer inside those phones. Riley v. California, 573 U.S. 373, 386 (2014). Exclusion here will ensure greater care is taken with such devices.

IV. My View

I think Judge Corley's decision is wrong, and that it's wrong in a way that points out the absurdity of ex ante search restrictions. Think about it. The government had a search warrant based on probable cause. The Fourth Amendment permitted the government to search the phone. If the government had been able to break into the phone quickly, that would have been legally fine. The government was trying to execute the warrant, but the only way to get in was a brute force attack that could and did take years. Under prevailing caselaw, there is no Fourth Amendment limit I'm aware of on how long the government has to execute the warrant by trying to break into the seized phone.

But under the new decision, the evidence found on the phone is suppressed because the brute force attack happened to take longer than the date the magistrate judge listed as a new date when the government obtained the extension. This seems pretty bananas to me. The magistrate judge doesn't know anything about computer forensics or how long the brute force attack is going to take. Why should the magistrate judge get to say if the government is allowed to continue its efforts to execute the warrant? The Fourth Amendment requires the government to have a warrant, of course. And the government had a warrant here, that it was earnestly doing its best to execute. Requiring the government to exercise "greater care" to make sure it is keeping up with a series of requests to continue to make the brute force attack on a bunch of seized phones requests not required by the Fourth Amendment, which is the law that should count in the first place seems exceedingly odd to me.

I realize that some will say, well, the magistrate judge sets the rules. They are the Law Lords and, from on high, they decide what is authorized under the warrant. But again, that's the exact opposite of what the unanimous U.S. Supreme Court held in Richards v. Wisconsin. There, the magistrate's decision that the warrant could not be executed as a no-knock warrant was not only not binding; it was 100% irrelevant. To me, it seems exactly the same with ex ante restrictions on warrants. How the government executes warrants is up to appellate courts and the Fourth Amendment law of reasonableness, as adjudicated ex post. It is not up the whims of individual magistrate judges as imposed ex ante.

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The Timing of Computer Search Warrants When It Takes the ... - Reason

Nearly one year after members of the City Council called for information on the Citys policy on pretext stops, the practice is back in the forefront.

On May 4, 2022, the City responded to an inquiry from Mayor Victor Gordo and Councilmember Tyron Hampton to provide the definition of a pretext stop, whether pretext stops are generally permissible, and relevant Pasadena Police Department policies governing such stops.

Gordo and Hamptons inquiry came after the public comment portion of a City Council meeting.

According to that memo, a pretextual stop is when a police officer detains a person for a minor crime, like a traffic violation, because the officer believes the person is involved in or has committed another more serious crime.

On Monday, the City Council reviewed a report by the Office of Independent Review on the officer involved shooting of Anthony McClain.

McClain was fatally shot after he fled from police during a traffic stop after the vehicle in which he was a passenger was pulled over for not having a front license plate.

As indicated, the officers were instructed to police this area because of some crime problems, but it was a license plate that was not correct that caused the basis for this stop, eventually the detention, ultimately the use of deadly force, said Michael Gennaco, Principal of the Office of Independent Review Group (OIR), which was contracted by the City to investigate the shooting.

All data I have seen from the RIPA (Racial Identity and Profiling Act) suggests that these stops are disproportionate. They tend to be conducted in a way that they impact people of color more than others.

The Citys police oversight commission will receive a presentation on the report in a special meeting on Thursday.

Although District Attorney George Gascns office has cleared the police officers of any criminality, the OIR is calling for 27 policy changes in the department.

The agenda for Thursdays meeting was published Tuesday.

The report is the OIR Groups third critical police incident review for the City of Pasadena over the past 14 years. The OIR was previously retained to review the shooting of Leroy Barnes, Jr., in February of 2009 and the March 2012 shooting of Kendrec McDade.

According to Gordo, any recommendations by the Commission will go to the Public Safety Committee and finally, the City Council for final discussion.

Pretextual stops do not violate the Fourth Amendment of the U.S. Constitution, if supported by the reasonable suspicion necessary to support a stop, according to the Citys memo.

In Whren v. Brown, the Supreme Court ruled that officers can use reasonable suspicion to conduct a search.

In that case two men, Whren and Brown were driving in a high drug area.

Plainclothes officers noticed Whren and Brown at an intersection stop-sign for an usually long time. Suddenly, without signaling, they sped away at a high rate of speed. After conducting a traffic stop, the officers discovered Whren holding plastic bags of crack cocaine and arrested the men on federal drug charges.

Before trial, lawyers attempted to suppress the evidence contending that the officers used the traffic violation as a pretext for stopping the truck because they lacked either reasonable suspicion or probable cause to stop them on suspicion of drug dealing.

The District Court denied the motion to suppress and convicted the petitioners. The Court of Appeals affirmed. The Supreme Court upheld the decision.

The Pasadena Police Department prohibits bias-based policing through Policy 402 (BiasBased Policing). Biased-based policing is defined as inappropriately relying on characteristics of persons stopped, such as race, ethnicity, or other protected classes, according to the memo. Additionally, policy no. 402.4.1, which tracks relevant case law, states that [t]he duration and scope of a detention shall not exceed what is needed to handle the justification for which the detention was made, unless justified by additional facts discovered during the detention.

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Councilmembers Inquired About Pretext Stops By Police One Year ... - Pasadena Now

Item 1.01. Entry into a Material Definitive Agreement.

The information contained in Item 2.03 of this Current Report on Form 8-K isincorporated by reference in this Item 1.01.

Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an

On May 9, 2023, Barings BDC, Inc. ("BBDC") entered into an amendment (the"Fourth Amendment") to the Senior Secured Revolving Credit Agreement, dated asof February 3, 2019 (as amended by the first amendment thereto, dated as ofDecember 3, 2019, as further amended by the second amendment thereto, dated asof December 29, 2021, as further amended by the third amendment thereto, datedas of February 25, 2022, and as further amended by the Fourth Amendment, the"ING Credit Facility"), among BBDC, as borrower, Energy Hardware Holdings, Inc.,Barings BDC Finance I, LLC and Barings BDC Senior Funding I, LLC, as subsidiaryguarantors, the lenders party thereto and ING Capital LLC ("ING"), asadministrative agent.

Under the Fourth Amendment, among other changes, the maturity date of the INGCredit Facility was extended to February 21, 2026.

The above summary is not complete and is qualified in its entirety to the fulltext of the Fourth Amendment and related documents, which is attached hereto asExhibit 10.1 and is incorporated herein by reference.

Item 9.01. Financial Statements and Exhibits.

* Schedules to this Exhibit have been omitted in accordance with Item 601 ofRegulation S-K. The registrant agrees to furnish supplementally a copy of allomitted schedules to the SEC upon its request.

--------------------------------------------------------------------------------

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BARINGS BDC, INC. : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet...

On April 3, 2018, Jeffrey Parker called 911 from his Huntsville, Alabama residence and threatened to blow his head off. Huntsville Police Department (HPD) officers Pegues and Beckles were dispatched to the call. Upon arrival, Pegues drew her pistol and made a partial entry through the front door, thereby exposing half her body to the inside. She observed Parker sitting on a couch with what appeared to be a gun at his own head. She told Beckles, still outside, what she saw. Beckles informed police dispatch that Pegues had seen Parker with a gun to his head. [1]

Officer Darby heard Beckles radio call about a guy with a gun threatening suicide and responded. Darby arrived and saw that Pegues had her gun drawn but pointed down. He commanded her to point her gun at Parker because he thought that Parker could kill her. Pegues moved completely into the residence and briefly raised her gun but almost immediately lowered it. Both Beckles and Darby followed her inside and demanded that Parker drop the weapon.

Pegues also pleaded with Parker to drop the weapon, but he kept it pointed at his head and refused to drop it. Darby, believing that all three officers were in danger of being shot, fired at Parker and killed him.

Darby was charged with murder. After a jury trial, he was found guilty and sentenced to 25 years in prison.

Officer Pegues testified at Darbys trial that prior to Darbys arrival, she attempted to de-escalate the situation, but that once Darby entered the residence, she could feel the tension just rising. She testified that Parker didnt threaten her or do anything to make her believe he wanted to do anything other than commit suicide.

Officer Beckles testified that at no time during this event did he feel the need to take deadly force action. He stated that Parker didnt make any overt action to indicate that he was about to point his weapon at the officers. He estimated that Parker was ordered to drop the weapon about seven times but failed to comply.

An HPD detective investigated the shooting incident and testified that he found no evidence that Parker ever made a hostile determination towards anybody other than himself.

Officer Darby testified that upon entering the residence he realized that all three officers had no cover between them and Parker. He ordered Parker to drop the gun twice, but Parker refused. Darby shot and killed him. Darby also presented testimony from three other law enforcement officers (expert witnesses) who each testified that Parker's refusal to put his weapon down constituted an imminent threat to the responding officers' lives. [2]

After both sides presented their evidence, Darby requested the trial judge to charge the jury as follows: "The reasonableness of an officer's actions in using deadly force must be objectively reasonable judged from the perspective of a reasonable officer on the scene, the fact that officers are forced to make split-second decisions, and in light of the facts and circumstances confronting them at the time.

In support of his requested jury instruction, Darby cited the United States Supreme Court opinion in Graham v. Connor. [3]The trial judge rejected Darbys requested instruction. Instead, the judge provided the jury with a general self-defense instruction that is available to all citizens who assert self-defense as a justification for their actions. This permitted the jury to examine Darbys conduct from the perspective of an ordinary citizen rather than a trained law enforcement officer.

Darby appealed and argued that the trial judge delivered an erroneous self-defense instruction that permitted the jury to ignore, as irrelevant, the expert testimony from several witnesses that reasonable law enforcement officers would believe they were facing an imminent threat to their personal safety.

The decision of the Alabama Court of Criminal Appeals [4]

The Alabama Court of Appeals reversed Darbys conviction and ordered that he receive a new trial. The court ruled that it was not bound to accept Darbys offered instruction that was based upon the Supreme Courts opinion in Graham v. Connor. The court explained that Graham does not govern a state courts application of state criminal statutes because it involved a civil action brought under 42 U.S.C. 1983. (The federal civil rights statute). [5]Nonetheless, the court observed that the Alabama legislature passed a self-defense statute designed for Alabama peace officers that states: "A peace officer is justified in using deadly physical force upon another person when and to the extent he reasonably believes it necessary in order [t]o defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force." [6]

The court ruled that the trial judge erred by giving the jury a self-defense instruction designed for ordinary citizens instead of an instruction intended by the Alabama legislature to be used for peace officers in self-defense situations. The court explained, [T]he Alabama Legislature has made clear that there is a unique standard to be used in judging a police officer's use of deadly force in self-defense or defense of another while acting in his capacity as a police officer. Thus, the proper perspective from which to evaluate a police officer's use of deadly force in such situations is indeed that of a reasonable police officer in the same situation.

The court observed that the ordinary citizen self-defense instruction given to the jury permitted the jury to ignore extensive testimony from multiple witnesses regarding the training a police officer receives with respect to confrontations with an armed person. The court noted that this testimony supported a finding that a reasonable police officer in Darby's situation could have concluded that Parker's conduct represented the imminent use of deadly force. In other words, that testimony supported a finding that Darby acted in self-defense or defense of another when he shot Parker.

Heres a summary of the lessons law enforcement officers can take from this case:

1.It would later be determined that Parker was holding a flare gun that had been intentionally painted black,but there is no evidence indicating that any of the officers were aware of that fact.

2.Quote is taken from the Alabama Court of Criminal Appeals opinion.

3.490 U.S. 386 (1989}. In Graham, the Supreme Court created an objective reasonableness standard for police use of deadly force grounded in the Fourth Amendment. The Supreme Court ruled that the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Further, the Court ruled that when police use of force situations are evaluated, the fact that officers are forced to make split-second judgments must be considered.

4.Darby v Alabama, (CR-20-0919) (3/24/23).

5.The Alabama Court of Criminal Appeals determined when reviewing state criminal statutes, it is not bound to follow a constitutionally grounded Fourth Amendment-based opinion of the United States Supreme Court regarding the standard for police use of deadly force. The Alabama court cited a quote from a California case, People v. Perry, 36 Cal. App. 5th 444, 465, 248 Cal. Rptr. 3d 522, 536 n.10 (2019) as authority for declining to follow Graham v. Connor regarding its application to a states criminal statutes. The California court ruled, Perry contends throughout his briefing that we are bound to apply the standards articulated in Graham in this case. Graham was a civil rights action brought pursuant to section 1983 of title 42 of the United States Code and it involved an alleged violation of the Fourth Amendment. Long-standing and deeply held principles of federalism counsel that we have no obligation to import those standards into our state law defining criminal offenses."

See also, People v. Couch, 461 N.W.2d 683, 684 (1990) in which the Michigan Supreme Court rejected the prosecutions argument that the U.S. Supreme Courts opinion in Tennessee v. Garner, 471 U.S. 1 (1985), requires it to change the Michigan fleeing felon rule to comply with the Supreme Courts ruling in Garner, (i.e. Deadly force cannot be used against unarmed and non-dangerous fleeing felons). The Michigan Supreme Court explained that Clearly, the power to define conduct as a state criminal offense lies with the individual states, not with the federal government or even the United States Supreme Court.

The Alabama court did not offer any United States Supreme Court opinion or federal appellate opinion as authority for its decision on this issue. It is unknown whether the federal courts would agree with the Alabama, California and Michigan courts that have considered this issue.

6. 13A-3-27(b)(2), Ala. Code 1975.

7.490 U.S. 386, 397 (1989). See also, recent university law review articles that take the position that state courts are not bound to follow the Supreme Court opinions in Graham and Garner when confronting use of deadly force issues involving state criminal charges directed at police officers. For example, see, Flanders, Chad and Welling, Joseph (2015) Police Use of Deadly Force, State Statutes 30 Years after Garner, Saint Louis University Public Law Review, Vol. 35: No.1, Article 7. And Shah, Raoul, (2018) Licensed to Kill? An Analysis of the Standard for Assessing Law Enforcements Criminal Liability for Use of Deadly Force, Mitchell Hamline Law Journal of Public Policy and Practice, Vol. 39/ Issue 1.

8.The new bill, commonly referred to as AB-392 is found at Calif. Pen. Code 835a (c)(1), (A)-(B).

9.SeeKathleen Y. Murray, Exploring A Necessary Standard For the Use of Excessive Deadly Force by Law Enforcement: A Flawed Solution With Positive Potential,University of Toledo Law Review, Vol. 52, p. 397 (Spring 2021).

10.Calif. Pen. Code 835a (c)(1), (A). Deadly force must be necessary To defend against an imminent threat of death or serious bodily injury.

11.Calif. Pen. Code 835a (e)(2). Based on the totality of the circumstances, a reasonable officer would believe that a person has the present ability to immediately cause death or serious bodily injury.

12.See, Calif. Pen. Code 835a (e)(3).

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Alabama appeals court reverses murder conviction of Ala. officer ... - Police News

The Oakland Town Commission voted at its May 9 meeting to terminate interim town manager Jack Butler without cause and to appoint Town Clerk Elise Hui as the interim manager until a permanent one can be hired. A search is being conducted.

The town of Oakland has voted to terminate Jack Butler without cause effective immediately, Mayor Kathy Stark said. Severances will be paid based on his contract terms.

Butler has been serving as interim manager since the previous town manager, Steve Koontz, retired April 1.

Its not for cause, and we wish him well, Stark stressed of Butlers termination.

The Town Commission engaged an executive recruitment firm to manage the process of recruiting a permanent town manager. The town has looked at all the applications, and the search has been narrowed to five.

We have some very good candidates, Stark said. We are hopeful that well be able to make an offer next Friday (May 19).

Hui will handle both job duties until a new manager is hired.

The five candidates will be in Oakland Thursday, May 18, to take a tour of the town with Stark and Public Works director Mike Parker. That evening, a reception will be held from 5:30 to 7 at the Oakland Meeting Hall, 221 N. Arrington St., and Stark said the public is invited to meet the candidates. Those interested in attending should RSVP to [emailprotected]

IN OTHER NEWS:

The Oakland Town Commission approved its consent agenda, which included an agreement to allow the Oakland Police Department to conduct traffic enforcement in the gated communities of Johns Cove and Johns Landing. The homeowners associations made the request. State statute doesnt allow traffic enforcement on private property without a written agreement. The police department will solely be responsible for enforcement, including the scheduling of patrols and the use of radar. All decisions regarding the level of traffic enforcement on the private roads and staffing will be within the sole discretion of the police department.

The commission approved a fourth amendment to the development agreement with Oakland Park regarding a buffer fence between Macchi Avenue and the seventh phase of the neighborhood.

The town proclaimed May 15, 2023, Peace Officers Memorial Day and May 15 through 21, 2023, National Police Week. The proclamation was presented to Chief Darron Esan.

I cant tell you how happy I am with our community policing police department, Mayor Kathy Stark said.

You guys are phenomenal, Commissioner Mike Satterfield said.

A proclamation was read declaring May 21 through 27, 2023, National Public Works Week and presented to Public Works director Mike Parker.

We love the job that you do, Stark said. You have been for a very long time a welcome addition to this town.

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Oakland narrows town manager search to five | West Orange Times ... - West Orange Times & SouthWest Orange Observer

On Monday, Special Counsel John Durham released the conclusions of his three-year investigation into the FBI's surveillance of former President Donald Trump's 2016 campaign, arguing that the FBI used uncorroborated evidence to secure search warrants against a former Trump campaign aide and "displayed a serious lack of analytical rigor" toward information they received from partisan sources.

Durham's 316-page report found that the FBI failed to act with "appropriate objectivity or restraint in pursuing allegations of collusion or conspiracy between a U.S. political campaign and a foreign power" and that the agency "discounted or willfully ignored material information that did not support the narrative of a collusive relationship between Trump and Russia."

Former Attorney General William Barr appointed Durham in 2020 to investigate whether any federal officials had violated the law in connection with the intelligence and law-enforcement activities directed at the 2016 presidential campaigns. On that score, Durham's investigation has been long on expectations from Trump and his supporters, but short on results. After three years, Durham has secured one guilty plea and lost two cases at trial after the defendants were acquitted.

However, the investigation has highlighted serious deficiencies with the FBI's warrant applications before the highly secretive Foreign Intelligence Surveillance Court (FISC), which is supposed to provide oversight of surveillance activities by U.S. law enforcement and intelligence agencies.

The Durham report found that the FBI's decision to open an investigation into possible foreign influence on several members of Trump's campaign team and apply for electronic surveillance search warrants against them was "based on raw, unanalyzed, and uncorroborated intelligence" that likely did not meet the standard for probable cause.

Some of the Durham report's findings have been corroborated by other investigators. In 2019, the Justice Department Office of Inspector General (OIG) released a bombshell report that FBI agents made a number of significant omissions and errors in their four warrant applications to surveil Carter Page, a former Trump campaign aide. It also found that FBI personnel "did not give appropriate attention to facts that cut against probable cause." However, unlike Durham, the OIG did not conclude that anti-Trump bias fueled the investigation.

But if FBI agents were willing to cut corners to get a FISA warrant against a presidential campaign aide, it seems highly unlikely Page was the only victim. Follow-up investigations revealed just that.

In a 2020 report, the OIG determined that the FBI regularly ignored its own procedures to make sure FISA warrant applications were accurate. In a review of 29 Foreign Intelligence Surveillance Act warrantapplications to surveil Americans, the OIG found that 25 of them had errors or "inadequately supported facts."

As Reason's Scott Shackford wrote, the fact that the FBI was regularly botching search warrant applications before a court with no outside review or oversight should be alarming: "This should be seen as a big dealthe secrecy of the FISC means that Americans who are targeted for surveillance don't know they've been singled out and don't have any defense or due process to stop it. The court itself serves as oversight to protect citizens' Fourth Amendment rights. But until all of this came out, we had little idea how carelessly these warrants were written and reviewed."

Durham's report notes one suggestion from former National Security Agency general counsel Stewart Baker to improve oversight of potentially partisan FBI investigations: having an FBI official who will challenge them at every stepessentially a devil's advocate, or in this case perhaps an angel's advocate.

"As a way to ensure full consideration of the issues in applications that may present very difficultand vitally importantissues, we recommend that the Department seriously consider Baker's proposal for an official to challenge both a politically sensitive FISA application and other stages of the investigation," says the report.

Trump's fantasies of Durham prosecuting and locking up a coterie of deep state agents who orchestrated the "crime of the century" against him are just thatfantasiesbut the civil liberties problems inside the FBI are very real.

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The Durham Report Is Right About the Need for More FBI Oversight - Reason

United States v. Rederick, 2023 WL 3014781 (8thCir. 2023)

An investigator was monitoring Larry Rederickscell phone locationas part of an investigation into methamphetamine sales. After learning Rederick was driving to Nebraska to visit an individual known by police to be involved with drug dealing, the investigator called troopers, told them about his investigation and asked them to stop Rederick. He asked the troopers to try to establish an independent basis for the stop, but if not, to stop Rederick to investigate drug trafficking.

A trooper stopped Rederick for towing a trailer that did not have a light illuminating the rear license plate. A sedan was on the trailer. The trooper spent 16 minutes writing a warning ticket for the traffic violation. Within the first 12 minutes, he asked a detector dog team to come to the scene. The dog team arrived 22 minutes into the stop. Five minutes later, the dog gave a positive indication of the presence of a narcotic at both doors of the pickup and at the back of the sedan. A subsequent search revealed meth in the sedans trunk.

The trial court denied Redericks motion to suppress the evidence; a jury convicted Rederick for possession of methamphetamine. The court of appeals held the trooper had two independent, lawful bases on which to stop Rederick. First, there wasprobable causeto stop him for the traffic violation. Second, applying the collective knowledge doctrine, the troopers had reasonable suspicion to stop Rederick to investigate possible drug trafficking.

Thecollective knowledge doctrineconsiders the separate pieces of information held by multiple officers involved in an investigation: The collective knowledge of law enforcement officers conducting an investigation is sufficient to provide reasonable suspicion, and the collective knowledge can be imputed to the individual officer who initiated the traffic stop when there is some communication between the officers. It was not necessary for the troopers involved in the stop to know the details of the drug trafficking investigation. All they needed was a directive to stop Rederick that came from someone who hadreasonable suspicionto believe Rederick was trafficking in illegal drugs.

Rederick argued the troopers illegally delayed the traffic stop to conduct a detector dog sniff, citing the rule ofRodriguez v. United States(575 U.S. 348 (2015)). However, theRodriguezdecision is all about delaying a traffic stop to investigate. In this case, the troopers had an independent basis to detain Rederick. The troopers had reasonable suspicionbeforestopping Rederick and the reasonable suspicion remained throughout the stop. Only 27 minutes passed from the stop until the dogs indication: This delay did not violate the Fourth Amendment because the troopers acted diligently to pursue the mission of the stop: to assist with the investigation of Redericks drug-related activity.

Rederick relied on the testimony of Mary E. Cablk to argue the detector dog was unreliable. However, when directly asked whether the detector dog was reliable, Cablk quickly conceded, I cant tell you that he is or he isnt. (SeeUnited States v. Spikes(2021 WL 5014500 (D. Colo. 2021)) andUnited States v. Rederick(2021 WL 5547702 (D. So. Dakota 2021)).) As the trial court highlighted, Dr. Cablk has never trained any drug detection K-9 teams herselfDr. Cablk essentially found the records to be unavailing, in part because shedid not know howto interpret them. A trainer for the detection dog team testified that the agency used single-blind testing in certification. The handler produced training records showing positive, accurate field performance and certification. The court found no error in the assessment of the reliability of the detector dog because there were proper training records and certification done with single-blind testing.

Read more Ken Wallentine case reviews here.

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Collective knowledge doctrine applies to a traffic stop - Police News