07-27-01

Dumb CrooksTM

A commercial parking lot across the street from Cal State University Long Beach had been hit by armed robbers more than once. The owners of the lot reacted by installing an alarm system. The owners designated the University Police as first responders to the alarm.

Several days after the alarm was installed, the lot attendants saw the robbers walking toward the booth and they hit the alarm. My partner and I were dispatched to the lot. Driving separate cars, we came in from different directions and caught the two knife wielding robbers. While putting a suspect in my car I became aware of a vehicle driving around the back area of the lot. Wondering out loud I said, “I wonder who that is?”

The suspect with me said, “ Oh, that’s our driver.”

Was the suspect armed? Well . . . yes and no.

Dale Smith, 47 years of age, was arrested for Aggravated Assault and Assault after a drunken discussion with bar staff. Smith had been drinking at Incredible's Lounge and had become intoxicated. Dale Smith ordered another drink but the waitress told him that he had too much to drink and she refused to serve him. Smith became upset and burned the waitress in the back of the neck with a cigarrette. Several other employees attempted to help the waitress and began to escort Smith to the front door. Smith became adamant and did not want to leave, so he pulled out a gun and pointed it at the employees. Although the gun turned out only to be a BB gun, the employees believed it to be real. While holding the employees at gunpoint, Smith, who had a prosthetic arm, and which was holding the gun, lost his arm and gun when his prosthetic arm fell off his body.

The suprised Smith quickly gathered his arm and the gun from the floor and abandoned his attempt to be served another drink. He attempted to leave but was stopped by police as he tried to leave the front door. He was arrested and bookedinto the El Paso County Jail under a $6000.00 bond. Moral of the story, always use your good hand.

Needless to say, all three went to jail and were convicted of armed robbery.

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Deliberate Indifference is High Standard In Prison Context

A prisoner committed suicide by hanging himself with a bed sheet in his prison cell. The prisoner’s survivors sued the Texas Department of Criminal Justice (TDCJ) and the psychiatrist at the prison asserting violations of prisoner’s Fifth Amendment Rights. The undisputed facts demonstrated that the psychiatrist met with the prisoner for approximately five minutes on the day of his suicide, during which time the prisoner stated that he was suicidal and also began repeatedly banging his head on the table. Despite this, the psychiatrist offered no further medical assistance. The prisoner also had a long history of psychological problems, which included several previous suicide attempts. The record did demonstrate that the psychiatrist had been seeing the prisoner off and on for approximately one-and-half years. The district court denied the psychiatrist’s Motion for Summary Judgment on qualified immunity, and an interlocutory appeal was made.

A prison official violates the 8^th Amendment when he acts with deliberate indifference to a prisoner’s serious medical needs, which can include psychological or psychiatric treatment. A prison official cannot be found liable under the 8^th Amendment unless the official knows of and disregards an excessive risk to the inmate’s health or safety. The official must both be aware of facts from which an inference can be drawn that a substantial risk of serious harm exists—and he must also draw the inference. The court recognized that deliberate indifference is an extremely high standard to meet. The record reflected that the psychiatrist did treat the patient, and she thought that the patient was difficult and that the suicidal ideations were for secondary gains. Although the diagnosis was wrong, she was not deliberately indifferent because the patient was treated. The Fifth Circuit Court of Appeals reversed the district court’s decision and remanded the case for an entry of judgment in favor of the psychiatrist based upon qualified immunity.

Legal Issues - Search and Seizure

SEARCH INCIDENT TO ARREST SUPPORTED BY PROBABLE CAUSE, EVEN THOUGH OFFICER DID NOT ANNOUNCE THAT SUSPECT WAS UNDER ARREST UNTIL AFTER SEARCH.

A tip led police to a jail inmate who told an officer that he could make a phone call and arrange for the delivery of cocaine. The informant gave his contact’s name to the officer, and said that he had been involved in “deals” with him.

The officer told the inmate to set up a delivery of cocaine. Using the officer’s cell phone, the inmate called his contact and arranged for the delivery of three kilos of cocaine at a hotel that evening at room 113.

The officer listened to the inmate’s side of the conversation, and the inmate related what his contact said. The contact was described as a Puerto Rican male, of a certain height and weight, with short black hair and a light beard. His vehicle was described as a dark colored, newer model Nissan with a hidden compartment in the back seat

The officer went to the hotel at the appointed time and saw the defendant and another man in a car matching the description pull slowly into the parking lot. The men matched the description given by the inmate.

As the officer watched, the car drove slowly to the vicinity of room 113 and parked. The defendant got out and walked to room 113, a room the officer knew was vacant. When the defendant’s knock was not answered, he used his cell phone to make a call.

The officer, who was 10 to 15 feet away, heard the defendant say, “I’m here. Where are you at?” When the officer, who was wearing a police narcotics raid jacket, walked toward the defendant, the man looked surprised, and turned and walked away.

After the officer identified himself and asked the defendant whether he was staying at the hotel, the man answered that he was there visiting a friend, but could not remember the friend’s name or room number. He appeared nervous as he answered the officer’s questions.

When the officer asked if he was carrying a weapon, the defendant did not answer, but reached for his pocket. The officer grabbed the man’s hand and felt a bulge in his pants pocket. The object was not a weapon, but the officer thought it was a bag of cocaine.

The officers suspicions were confirmed when he pulled a small bag from the man’s pocket.. He arrested the defendant and searched him more thoroughly, finding a piece of paper with the number 113 in the man’s shirt pocket.

The driver of the car in which the defendant had arrived gave his consent to search the vehicle. Six bricks of cocaine were found in a secret compartment in the back seat.

The defendant moved to suppress the cocaine, along with the note found in his pocket. He claimed that the cocaine was not discovered by “plain feel,” and the note was the fruit of his unlawful arrest.

Holding: Warrantless arrests and searches require the same level of probable cause as those conducted pursuant to a warrant. Probable cause is determined from the totality of circumstances, considering whether, at the time of arrest, “the facts and circumstances within the officer’s knowledge, and of which the officer had reasonably trustworthy information, were sufficient to warrant a prudent person in believing that the arrested person had committed an offense.”

Even if an officer believes that a person was not under arrest at the time of a search, an appeals court can find that the facts in evidence support a finding of search incident to arrest.

The officer in this case was present when the inmate made arrangements for delivery of cocaine to room 113. He saw the defendant and his companion arrive in a car matching the description the inmate had given.

The defendant went directly to room 113 and knocked on the door, and the officer overheard the man make a call on his cell phone announcing, “I’m here.”

Once the officer possessed all of this information, he had probable cause to arrest the defendant for attempted delivery of cocaine. Because he had probable cause, he was authorized to search the defendant incident to arrest, and to discover the cocaine and note in the man’s pocket.

The evident supported the trial court’s denial of the defendant’s suppression motion.

COMMENT: As noted in this case, courts often are guided by objective facts, and not by what an officer thinks those facts mean at the time of the event. Courts sometimes are criticized for judging the actions of officers in hindsight, but sometimes the court’s hindsight assessment supports the officer’s actions when those actions would not have been justified if the court merely accepted the officer’s assessment of the situation.

Texas Highway Trivia

Everyone is familiar with “Route 66” and the Pacific Coast Highway, but how many of these “highways” in Texas are real and how many fake?

1. Farm to Market 1
2. Ranch Road 1
3. Loop 1
4. Park Road 1
5. State Highway 1

From the Chaplain - Marilyn Featherstone

JUSTICE

There is a story about a man who was caught and taken to court because he had stolen a loaf of bread. When the judge investigated, he found out that the man had no job and his family was hungry. He had tried unsuccessfully to get work and finally, to feed his family, had stolen the bread. Although the judge realized there were extenuating circumstances, he said, “I’m sorry, but the law can make no exceptions. You stole, and therefore I must punish you. I order you to pay a fine of ten dollars.” Then he said, “I want to pay the find myself.” He reached into his pocket, pulled out a ten dollar bill and handed it to the man.

As soon as the man took the money, the judge said, “Now I also want to remit the fine. I am also going to instruct the bailiff to pass around a hat to everyone in this courtroom. I am fining everyone in this courtroom fifty cents for living in a city where a man has to steal in order to have bread to eat.” The money was collected and given to the defendant.

This is a good example of justice being meted out in full and paid in full. And, the judge showed both mercy and grace.