Nice Frame - Pull Over!

Nice frame - pull over.  Today the Iowa Supreme Court gave law enforcement the license to pull Iowans over based just upon the frame around their license plates.  According to the Court, a license plate frame that covers up the county name violates Iowa law and provides law enforcement with a legal basis to conduct a traffic stop."

It has been the law across the nation for some time that when a police officer observes a traffic offense, however minor, the officer has probable cause to stop the driver of the vehicle.  The motivation of the officer stopping the vehicle is of no concern to the court and the officer is not bound by the real reason for the stop.  In other words, if the officer wants to stop a vehicle to investigate narcotic activity without sufficient suspicion of narcotics activity, if he observes any sort of traffic offense, he may lawfully stop the vehicle even though he may have an ulterior motive.

This law is the reason police officers stop cars for dirty license plates, the middle brake light being out, or license plate light being out at 2:00 a.m. on a Saturday morning.  The police wouldn’t ordinarily stop someone for such a minor violation during normal driving hours, but at 2:00 a.m., they are looking for drunk drivers.  Consequently, they stop vehicles for whatever reason they can come up with just to see if the driver has been drinking.  The way our law is currently, so long as the reason or the stop is valid, the officers true motivation for the stop is irrelevant.

We see license plate frames all over the place that partially obscure portions of the numbers and letters on the plates.  Often times the county name is at least partially obscured.  These frames may be placed on the vehicle by the car dealership that sold you the car or are purchased and placed on the vehicle by the owner to show support for their favorite team or cause.  In State v. Harrison, the Iowa Supreme Court was squarely presented with the question of whether or not a plate frame that obscures the county violates Iowa law.

Iowa Code section 321.37(3) makes it unlawful “for the owner of a vehicle to place any frame around or over the registration plate which does not permit full view of all numerals and letters printed on the registration plate.”  The defendant in Harrison, contended that this provision only applied to the large letters and numbers that actually serve a purpose on the plate.  The Iowa Supreme Court disagreed concluding “all numerals and letters printed on the registration plate” meant exactly what it said.  This means the “Hawkeyes,” “Cyclones,” “Panthers,” or “Bulldogs,” on the Iowa Collegiate plate that serve  absolutely no legal purpose, better be clear and visible as well.

So, while license plate frames may be neat and decorative, if they do not properly fit around the plate and obscure any letter or numeral printed on the plate, they give the police a license to pull you over.  Unless you welcome extra one-on-one time with your city, county or state law enforcement agencies you may want to tell the car dealer the next time you buy a car, “thanks but no thanks – keep the frame.”  If you have a frame you just might want to consider scrapping it.

7 Most Common, Easily Avoidable, Reasons for Law Enforcement to Pull Someone Over

Police Officers only need probable cause for even the most minor of traffic infractions in order to legally pull a vehicle over.  Here is a list of the 7 most common and easily avoidable excuses that law enforcement officers use in Iowa to "justify" pulling a vehicle over.

1.     License Plate Frame:  If ANY letter or number on the license is obscured by a license plate frame, it is an arguable traffic violation.  Take the frames off!

2.    Registration Sticker:  There should only be ONE registration sticker visible on a license plate (the most current).  It must be placed in the bottom left hand corner and must be clearly visible.  If you have multiple registrations stickers visible, take them off!

3.    License Plate Cover:  Iowa law prohibits license plate covers that make a license plate difficult to read.  While they may save you a picture-ticket, law enforcement is known to claim that they obscure visibility of the license plate, especially at night, do to the glare.  If it gets to a hearing it’s the officers words vs. yours and we all know how that turns out.  Take them off!

4.    Non-Functioning Lights:  All lights originally manufactured on a vehicle must be in proper working order.  The most common light to go out that people don’t realize is the license plate light.  Check all lights and signals frequently and make sure they are in proper working order.

5.    Dirty License Plate:  Iowa law requires license plates to be free of dirt and debris and clearly legible.  Gravel travel recently?  Take a little extra time to clean your license plate off and avoid an unpleasant interaction with local law enforcement.

6.    Obstructed View:  Iowa State Patrol Officers are notorious for stopping vehicles with items hanging from their rear-view mirrors claiming that it “obstructs the view” of the road.  While each case is factually dependent, and often times these stops are a mere pretext and can be challenged, do you really need to dangle your rosary from the rear-view mirror or is there another place it can be safely displayed?  Sometimes it’s better safe than sorry.

7.  No Front License Plate:  Iowa law requires a front license plate to be affixed to all vehicles licensed in this state.  There in no exception for your Corvette or other vehicle that you just don't want to put one on because it ruins the look.  Order the bracket and put your front plate on.

 

A quick walk around of your vehicle might easily prevent an unpleasant meeting with "Iowa's Finest" in the near future.  Know your rights; Exercise your rights; Preserve your freedom!

Community Caretaking and the 4th Amendment

In this day and age of increasing law enforcement presence, police interaction with citizens is at an all-time high. This isn’t always necessarily a bad thing as a strong police presence in our communities most certainly has a deterrent effect on crime.

Local law enforcement also has an expanded role, commonly referred to as “community caretaking.” As the United States Supreme Court has explained, when exercising the “community caretaking” role, law enforcement is presumably interacting with the public in a way that is “totally divorced from the detection, investigation or acquisition of evidence relating to the violation of a criminal statute.” Cady v. Dombrowski, 413 U.S. 433, 441 (1973). In other words, local law enforcement is not just designed to detect and apprehend criminals they are also responsible for providing the community at large with assistance when it may be needed.

There are three recognized types of “community caretaking” activities engaged in by law enforcement: 1) rendering emergency aid; 2) automobile impound/inventory; and 3) acting as a public servant. The most common two are the first and third; “emergency aid” and “public servant.”

The “emergency aid” activity means what it says. If an officer has specific information leading him to believe that a person is in need of emergency assistance, the officer may stop that individual in order to render that aid. This most often times arises in the context of individual’s suffering from medical problems while driving. Obviously, if there are objective facts pointing to a person being in need of legitimate emergency assistance we want to encourage officers to render that aid.

The “public servant” activity is a little more all-encompassing and involves situations were a citizen is in need of some other type of help. For example; a vehicle is on the side of the road with a flat tire. If a police officer were to just drive by us when we are broken down on the side of the road with a flat tire, we would complain that the officer isn’t doing his job which is often described as to “protect and to serve.” The conflict however, arises when a police officer “seizes” a person to execute one of those “community caretaking” functions.

Not all police interactions with citizens qualify as a “seizure” though. Police will routinely engage in “consensual encounters” where the person is free to go about his/her business if they so desire. During these encounters, any evidence obtained or observations made by the police officer, may be used against the individual. However, if the officer engages in conduct that turns the “consensual encounter” into a “seizure,” such as telling the person not to leave, there must be a legal basis for him to do so, i.e., suspicion of criminal activity.

A “seizure” occurs when law enforcement, through a show of authority, restrains a person of their freedom to move around and go about their business. When a “seizure” occurs, the privacy protections of the Fourth Amendment to the United States Constitution and Article 1 Section 8 of the Iowa Constitution are invoked. Law enforcement may not “seize” an individual without a valid legal basis because doing so violates the Constitution and all evidence obtained as a result of the police action may be suppressed or thrown out of court.

More and more, we are seeing law enforcement attempting to justify their “seizure” of an individual under the “public servant” function of the “community caretaking” exception to the Fourth Amendment. In these situations, the officers admit that the person did not violate any traffic laws nor did they have a reason to believe the citizen was engaged in criminal activity. However, the officer claims that he felt it necessary to stop the person to “see if everything was alright.”

The Constitution has never permitted a “stop and see” approach to law enforcement. It has always required a specific and articulable basis to believe the person has done something wrong or is genuinely in need of assistance. However, some district courts have been convinced by prosecutors to rule that “stop and see” vehicle stops qualify under the “public servant” function of the “community caretaking” exception to the warrant requirement.

The “public servant” function really has not been addressed or discussed in any great detail by Iowa Appellate Courts. What is and is not permitted under this function is far from clear. However, many States have already said that police officers may not “seize” a person in order to engage in the “public servant” function because no legitimate public interest is served in those situations and it would open it up for abuse through “bogus” stops under the guise of “just trying to help.” Recently, the attorneys at GRL Law raised the issue before the Iowa Supreme Court.

In State v. Kurth, the defendant was pulled over in a parking lot of a Perkin’s restaurant after running over debris that had been left in the roadway. The officer admitted that Mr. Kurth did not violate any traffic laws and that he did not have a basis to believe he was engaged in criminal activity at the time. However, the prosecutor argued and the district court agreed that the officer was acting as a “public servant” in checking on Mr. Kurth when he stopped the vehicle.

The fatal flaw to the justification of these types of stops is that there simply is no legitimate societal interest that is furthered by officers “seizing” a motorist in order to render assistance. In each and every case, the public interest can be just as well served by the officers engaging in a “consensual encounter” without needing to actually “seize” the individual. Nothing would prevent an officer from merely walking up to the person and asking if they need help. There is no restraint of their freedom at that point and thus, no concern with a potential violation of the 4^th Amendment. If the person does not need help they can go on about their business. If they want help, then they can accept the officer’s generous offer of assistance at that point in time. There simply is no legitimate public interest that is served by restraining someone of their freedom in order to “help” that person out. If this were the case, then every motorist who pulls over to the side of the road in order to send or receive a text message (which is the law) would be subject to being pulled over by law enforcement just to see if they are ok.

Ultimately, this question will finally be answered by the Iowa Supreme Court. The Kurth case is scheduled to be argued on April 4^th at 9:00. A decision will be issued by the Iowa Supreme Court in the months following.

A Doggone Shame

Mans best friends have been used for decades in an effort to detect the odors of narcotics in drug interdiction operations. This time however, "mans best friend" played a different role, landing their owner in jail on a pot charge. In the case of State vs. Pals, a decision recently handed down by the Iowa Court of Appeals, a couple of mischievous canine’s landed their owner in jail for possession of marijuana.

Court of Appeals decision started with the quote: “This case began with the question, ‘Who let the dogs out?’” In a story that could only happen in a small Midwest town, the Worth County Sheriff’s office responded to a call that two dogs, a tan and brown Brittany Spaniel and a Chocolate Labrador, were running loose and “knocking stuff down” in the City of Joice. This was a violation of the city ordinance prohibiting dogs from “running at large.” Dutiful to his oath to “protect and serve,” Worth County Sheriff Deputy Mark Wubben (hereafter “The Dutiful Deputy”) responded to the call and saw the dogs running loose but noticed that they did not have tags or collars. Upon talking to the town people, The Dutiful Deputy still could not determine who the owned the rambunctious canines but he observed a white pickup truck with a red topper that appeared to be looking for the dogs as well. A short time later, The Dutiful Deputy’s sharp vision allowed him to see that the Brittany Spaniel was in the back of the truck but the Labrador was nowhere to be found. Unable to find the Labrador, The Dutiful Deputy continued with his investigation and learned that the dogs had escaped from a fenced-in area behind a bar where their owner, Mr. Pals was playing pool.

Finally, unable to locate the long lost Labrador, The Dutiful Deputy headed back out of town. However, on his way out of town he encountered Mr. Pal’s vehicle, the white pickup truck with a red topper, going the other way. According to The Dutiful Deputy, he pulled Mr. Pals over “because he wanted to talk to him about the dogs and advise him that the dogs needed tags and collars.” Being pulled over Mr. Pals was polite and cooperative and informed The Dutiful Deputy that both dogs had been recovered and that the Labrador was likely hiding in the kennel under the topper. Unfortunately for Mr. Pals, he was unable to produce his insurance card when requested and The Dutiful Deputy then asked that he accompany him to his car. After approximately 6 minutes of “friendly” conversation The Dutiful Deputy asked Mr. Pals whether he could search his vehicle. At the time he made this request, he had no basis to believe that Mr. Pals was in possession of anything illegal or was engaged in illegal activity. However, Mr. Pals consented and the Dutiful Deputy discovered the “green leafy substance” that ultimately landed Mr. Pals in jail.

While this case has some considerable legal issues that were discussed by the Court of Appeals, including a well-reasoned dissent written by Judge Doyle which would be a great subject of another blog topic at a later date, the story of the Dutiful Deputy and the “dogs at large” serves as a very good object lesson. Citizens in this State can never be required to consent to a search of their person, vehicle or home. Law enforcement will routinely ask for permission even if they do not suspect any criminal wrong doing for precisely the reason illustrated in this case. Sometimes they stumble across things. It never makes sense for a citizen to consent to a search of their person, vehicle or home, if they know they are in possession of contraband. Likewise, we never know what others have place or left in our vehicle but you can be certain if you consent to a search and contraband is found in or on your property, you will be the one charged. An important object lesson learned the hard way by Mr. Pals thanks to his rambunctious canine friends.

Know your rights; Exercise your rights; Preserve your freedom.

Drunk Driving Conviction Reversed - Video Saves the Day

The Iowa Court of Appeals reversed the conviction of Abdoulaye Tangara on Thursday morning finding that the trial court erred in denying his motion to suppress evidence that alleged the stopping officer lacked reasonable suspicion to pull him over and further that she violated his right to phone calls pursuant to Iowa Code section 804.20. The Court found that both the stop of the vehicle and the officers refusal to allow Mr. Tangara to place calls upon his arrival at the police department, were illegal.

The stopping officer, Officer Karla Altenbaumer of the Cedar Falls Police Department, claimed to have followed Mr. Tangara's vehicle for two miles and observed Mr. Tangaras vehicle noticeably weaving within or between two lanes of traffic. She further claimed that when she turned on her traffic lights the vehicle continued "approximately two blocks, and then it made a right-hand turn onto Main and then stopped in the middle of the road." Officer Altenbaumer also testified that she was absolutely positive that at no time did Mr. Tangara request to place a telephone call.

Thankfully for Mr. Tangara there was a video of the stop of his vehicle and his subsequent interaction with Officer Altenbaumer. The video completely contradicted Officer Altenbaumer's testimony. The video showed no discernible weaving and in fact showed that Mr. Tangara pulled over in a timely and appropriate manner when instructed to do so by the officer. More importantly, the video documented Mr. Tangaras repeated requests to place a phone call after he was arrested and the officers response of "we're kind of past that." The fact that Officer Altenbaumer testified repeatedly that she was positive Mr. Tangara never made a request to place a call, but that the video clearly showed he did make such a request and in fact she heard that request and responded, is what sealed victory for Mr. Tangara. At the hearing, Officer Altenbaumer even went so far as to testify that she was as certain that Mr. Tangara did not ask to place a call as she was that he was weaving and driving erratically. Video doesn't lie but law enforcement officers are human.

Mr. Tangara's case is a classic example of law enforcement's imperfect memory of events or willingness to take a position and testify to something that is inconsistent with the truth and the value of video and audio recordings in justice being served. Had there not been a video and audio recording of Officer Altembaumer's interaction with Mr. Tangara, both the trial court and the appellate court would have most certainly taken the officer at her word and Mr. Tangara's conviction would have been affirmed. It is not whether law enforcement intentionally lied or misstated the facts. While that is obviously important if it did indeed take place, what is more important is that an objective, unbiased tool was available to ensure that the correct decision was made and justice was served. Much like instant replay in a sporting event, the most important thing is to get it right. While the trial court did not take the time to get it right, thankfully the Iowa Court of Appeals did. Justice was served, although a little delayed. Mr. Tangara's convictionw as reversed and will be taken off his record and because the chemical breath test was also suppressed, he will be able to have his driving privileges reinstated with the Iowa Department of Transportation.

Court of Appeals Says Jogging While Black is Enough

Jogging while black, 4 1/2 blocks away from the scene of a bank robbery justifies the violation of an individuals privacy. Say it isn't so!

On July 22, 2009, the Iowa Court of Appeals decided the case of State of Iowa vs. Antony Sherrod. In doing so the Court held that a black man "wearing dark clothing and jogging, walking real fast" 4 1/2 blocks away from where a credit union was robbed by a black man wearing "a light blue coat, baggy blue jeans" was sufficient to justify the police officer to stop him and order him to the ground.

The Court of Appeals decision creates legal authority for law enforcement to stop an individual with the same skin pigmentation as a suspect within a 4 block radius of where a crime took place. This simply cannot jive with the mandates of the 4th Amendment that before an officer may intrude upon an individual’s freedom and expectation of privacy, he must first have specific and articulable facts that justify that intrusion and a mere suspicion or hunch is not sufficient. It has also long been established that merely being in close proximity to where a crime has occurred is insufficient to justify such an intrusion. Finally, the constitution requires that the government take the steps that result in the least intrusion into an individuals privacy when investigating suspected criminal activity.

The purpose behind these constitutional requirements is to maximize citizens’ privacy and require officer’s to engage in effective and thorough police work. Privacy trumps law enforcement interests unless the proper investigation is undertaken that reveals the necessary evidence providing probable cause. In the classic admonition by United States Supreme Court Justice Bradley: “It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizens, and against any stealthy encroachments thereon.” Boyd v. United States, 116 U.S. 616, 635 (1886). Unfortunately, trial courts and evidently appellate courts appear to be more and more, disregarding the fundamental principals of our constitution and are sanctioning law enforcement taking “easy street” in their investigations. They are allowing law enforcement to cut corners because they believe that they got the right guy and it is much more “efficient” to jump to conclusions than to do a thorough, objective and unbiased investigation that requires patience and time. This is the same attitude that has resulted in countless wrongful convictions based upon shoddy police and forensic work throughout the nation. More importantly this ruling in essence, sanctions seizure of individual's persons based upon skin color and location to criminal activity, opening up an entirely different can of worms that is only magnified by the recent arrest of distinguished Harvard Professor, Henry Louis Gates, Jr.

It would be easy in Mr. Sherrod’s case to argue “well they got the right guy” which may well have been the court’s mindset; however the constitution requires that the courts focus be on the information available to the officer at the time of the search. A search or seizure cannot be validated merely because it turned out that the officer was correct. To do so would be to create a body of law that utterly disregards what must be present prior to the invasion of privacy and utterly undermine the spirit and purpose of the 4th Amendment. Innocent people would be searched without justification but because evidence was not discovered, they would never be charged and the matter would likely never come up before the court to tell law enforcement that what they did was illegal. The danger that arises from the Sherrod ruling is that subsequent law enforcement actions are based upon prior appellate court decisions. Thus, law enforcement is not armed with legal authority to stop and detain individuals of the same color in the general vicinity of a crime. This opens the door to wholesale abuse by law enforcement.

One may ask, what should the officer had done? The answer is quite simple; wait, watch and conduct a legitimate investigation. The description of the suspect that was given by the victims of the robbery was very specific. The individual was wearing a light blue coat and baggy blue jeans. The robbery took place at 12:02 p.m., in broad daylight. The officer could have followed the suspect, determined whether the specifics of what he observed, i.e. height, weight, build, clothing, matched the specific description provided by the victims as opposed to taking immediate action based upon his observation of “dark clothing.” The officer could also have made his presence known and watched the suspect’s reaction. If suspect appeared nervous, began running or acted in an otherwise suspicious manner, the specific and articulable facts creating probable cause would have obviously increased. A little bit of time and patience by the officer would have alleviated any question as to the legality of the intrusion into Mr. Sherrod’s privacy. What many members of the public and even law enforcement officers do not understand is that law enforcement itself is often times a criminal’s best friend. In their haste to “collar the bad guy” officers jump the gun creating arguments and issues for the defendant when a patient, well executed, investigation could easily eliminate any legitimate argument that a defendant may have once the case gets to court.

Mr. Sherrod still has the opportunity to ask the Iowa Supreme Court to review the Court of Appeals decision, and hopefully, the Iowa Supreme Court will recognize the gravity of the ruling in this case and exercise its corrective function and accept and correct this controversial and potentially dangerous decision.

Lazy Officer Exception to the Warrant Requirement?

The Iowa Supreme Court recently created what some may call the "Lazy Officer Exception" to the search warrant requirements of the Fourth Amendment of the United States Constitution and Article 1, Section 8, of the Iowa Constitution. In the State of Iowa v. Christopher Leon Christopher, filed September 12, 2008, the Iowa Supreme Court determined that officer Butler from the Des Moines Police Department was justified in arresting Mr. Christopher without a warrant for the offense of driving while barred he witnessed Mr. Christopher commit some five weeks prior. Officer Butler witnessed Mr. Christopher driving while he was off duty believing him to have a barred driver's license and took no measures to stop him at that time for the violation. Officer Butler confirmed that Mr. Christopher was barred the next day while he was on duty and then saw Mr. Christopher five weeks later and decided to arrest him without a warrant for the offense of driving while barred. Following Mr. Christopher's arrest, he was searched and drugs were discovered.

Prior to trial, Mr. Christopher moved to exclude the use of the drugs at trial arguing that his arrest violated the Due Process Clause and the Fourth Amendment of the United States Constitution as well as the Iowa Constitution. Mr. Christopher argued that the warrantless arrest was not lawful because it was not done within a reasonable time following the commission of the crime.

The Iowa Supreme Court upheld the arrest concluding that a reasonable time requirement between the time the officer observed he offense and the warrantless arrest is not "necessary to protect the rights of the accused."

From a defense perspective, this poses a problem since officers are now allowed to apparently make a warrantless arrest at any time following the commission of a crime that they witnessed so long as it is within the statute of limitations and are free to conduct a warrantless "search incident to that arrest" of the person following the arrest. Some would argue that officers now can be an ostrich with their head in the sand for a crime that they witness until they believe that a person may have evidence of other crimes on their person in order to hurdle the confines of the Fourth Amendment protections against unreasonable searches and seizures.

The Iowa Supreme Court seemed to somewhat address this concern in the decision by cautioning that if the Police delay an arrest to gain a tactical advantage over the an accused, there may be a due process violation.

Wife Can't Consent to Search Where Husband Objects

An estranged and allegedly battered wife cannot consent to the search of the family residence when the husband objects and demands that law enforcement obtain a search warrant.

On May 29th, the Iowa Court of Appeals in State v. Jackie Brandon followed the United States Supreme Court's decision in Georgia v. Randolph in holding that the consent to search by one occupant of a residence could not override a specific refusal to consent of another occupant or owner who is present on the property to be searched. According to Justice Zimmer, Mr. Brandon's inquiry of the officers as to whether or not they had a search warrant was a sufficient challenge to the officers authority to remain in the residence. Their subsequent actions in placing Mr. Brandon under arrest and removing him from the residence clearly established that any further objection or inquiry regarding the need for a search warrant would have been futile. Thus, Mr. Brandon's question as to whether or not the officer's had a search warrant was sufficient to establish that he objected to the search of his residence.

It is important to note however that in different circumstances, a mere question as to whether or not a search warrant was obtained may not always be sufficient to establish the "express refusal of consent" required by Georgia v. Randolph. When law enforcement seeks to conduct a search and a person wants to voice an objection, using manners and being polite is not necessarily advised. The individual should be clear and forceful with the language used to express their objection to the search. While physical resistance is unacceptable, a profanity laced objection never fails to get the point across.

In conclusion, probably the best part of the Court of Appeals decision in Brandon is the fact that one of the officers was caught lying and the Court of Appeals felt it important enough to note and publish. Often times these "misstatements" by law enforcement get swept under the rug. Not this time. Justice Zimmer stated: "Deputy Alan Johannes testified at the suppression hearing. Initially he testified that the defendant was in jail when Terri gave her consent to search the Brandon's home. However, after being shown documents that clearly revealed the defendant was not in custody, the deputy recalled that Brandon was present in the living room of his home when deputies arrived to conduct a search."

The full opinion can be found at http://www.judicial.state.ia.us/court_of_appeals/Recent_Opinions/20080529/8-243.pdf