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Favorable Ruling for "On-Scene" Investigations
In January 2012, the Supreme Court ruled in favor of law enforcement in two cases involving ordinary patrol-type “on-scene” investigations. One involved eyewitness identification. The other involved entry into a residence during tense on-scene questioning.
In the first case, Perry v. New Hampshire (2012), police arrest an auto-breaking suspect “on-scene” when a witness points out that the man she saw breaking into cars is the same man who was now standing in the parking lot beside a police officer. The police were not presenting the suspect to her for identification. She simply looked past the questioning officer and pinpointed the suspect. In the second case, Ryburn v. Huff (2012), police were at a student’s home investigating rumors of him threatening his school, and ended up trailing his mother back into the residence when she evaded their on-scene questioning about the presence of firearms.
Witness Identifies Suspect During On-Scene Questioning
In Perry v. New Hampshire, patrol officers responded to a complaint about an African-American male trying to break into cars in the parking lot of an apartment building around 3:00 a.m. The first officer on the scene, Officer Clay, heard what “sounded like a metal bat hitting the ground,” and found the suspect, Perry, standing between two cars holding two car-stereo amplifiers in his hands, a metal bat on the ground behind him. The officer asked him where the amplifiers came from and he said he “found them on the ground.”
The owner of the vehicle came out and identified his car with the rear windows broken out, and identified the bat and the amplifiers as items that were missing from his car. When a second officer arrived, Officer Clay asked Perry to stay with this officer while she went to talk to witnesses in the apartments. Ms. Blandon, who witnessed the break-in from her kitchen window, described how she watched a tall African-American man walk around the parking lot looking into cars and removing a large box from the trunk of one of the cars. The box contained speakers and was located on the ground near where Officer Clay first saw Perry.
When Officer Clay asked the witness for a more detailed description of the man, the witness said the man she saw breaking into the car “was standing in the parking lot, next to the police officer.” Perry was then arrested. About a month later, this witness was unable to pick Perry out of a photographic array. The witness’s on-scene identification of Perry was admitted during the trial and he was convicted.
This identification of Perry would have been similar to a ‘show-up’ in which police present a single suspect to a witness soon after an incident occurs – except that the police did not actually attempt to present Perry as a suspect. The witness’ spontaneous identification of Perry was not the result a police-prepared show-up procedure. Since the police did not control the identification procedure, the Court did not even address whether the police procedure was unduly suggestive.
In this 8-1 decision, the Court reviews the two-step analysis that governs out-of-court identifications. The first step requires the trial court to determine “whether the police used an unnecessarily suggestive identification procedure.” If they did, then the second step is to determine whether the procedure so tainted the resulting identification as to make it unreliable and therefore inadmissible. Neil v. Biggers (1972).
In Perry v. New Hampshire, the police did not use any identification procedure, and the witness asserted the man in the parking lot with the police was the same one she saw trying to break into cars. Because the on-scene identification did not involve a police-generated identification procedure, Perry’s complaint does not survive the first step and the Court declined to even assess the identification for suggestiveness.
Police Enter Residence During On-Scene Questioning
In Ryburn v. Huff, police in Burbank, Calif. were investigating allegations of a student making threats against his high school. During their initial investigation at the school, the principal informed police of rumors that Vincent Huff, a student who was frequently subjected to bullying, had written a letter threatening to “shoot up” the school. Vincent had been absent for two days, so Sgt. Ryburn and other officers went to Vincent’s home to inquire about the threats.
They knocked and announced their presence at his residence several times, but no one responded. Then they called the house phone and could hear the phone ringing inside, but no one answered the phone. Sgt. Ryburn then called the cell phone of Vincent’s mother. She answered her cell phone, and told Sgt. Ryburn that she and Vincent were inside, but then abruptly hung up on him when he asked her to speak with him outside. A minute or two later she and Vincent walked outside and briefly spoke with the officers.
Mrs. Huff never asked why the police were there, and when Sgt. Ryburn asked her if there were guns in the house, she immediately turned and ran into the house. Sgt. Ryburn went into the house behind her, they were followed by Vincent, and then a second officer went in so Sgt. Ryburn wouldn’t be in there alone. Two additional officers who had been standing outside out of earshot followed the first two officers inside, believing Mrs. Huff had given them consent to enter her home. The officers remained in the living room for 5 to 10 minutes, conversing with Mr. Huff and Vincent. Mr. Huff challenged their authority to be in the house.
The officers were eventually satisfied that the rumors about Vincent’s threats were false and reported their findings to the school. The Huffs later sued Sgt. Ryburn and the other officers, alleging that they unlawfully entered residence without a warrant in violation of the Fourth Amendment.
This appeal to the United States Supreme Court was on the question of whether the involved officers were entitled to “qualified immunity” from civil liability. The federal trial court had held that they were, because a reasonable officer could have thought a warrantless entry to be lawful, there being no pertinent case law that clearly established the contrary. A divided United States Court of Appeals for the Ninth Circuit had held that no reasonable officer could have thought this warrantless entry to be lawful and therefore the officers did not qualify for immunity.
The United States Supreme Court decided that a reasonable officer could have thought this entry to be lawful because no pertinent case law clearly prohibited it – and then unanimously reversed the Ninth Circuit Court of Appeals. Note that the Supreme Court is not ruling on the lawfulness of the entry, only on whether the officers were eligible for immunity from federal civil liability. Still, the Court provides valuable information on how they “see” facts of this type.
In deciding whether a reasonable officer could have thought this entry lawful, the Court refers to Brigham City v. Stuart, (2006), which held officers may enter a residence without a warrant when there is an objectively reasonable basis for believing that they or someone inside the residence was threatened with imminent injury.
The officers in Ryburn testified to a list of factors that gave them reason to believe there was an imminent threat of violence, starting with Vincent’s absences from school and being the target of bullying, to his mother’s unusual and evasive behaviors, and especially her dramatic response to the question of whether there were guns in the house. The Court acknowledges that the Huffs did not do anything unlawful in their refusal to allow police entry, or even in their evasive response to questions – but then finds that there are many circumstances in which otherwise individual acts of lawful conduct may, when taken together, “paint an alarming picture.”
Ultimately the Court decides that Sgt. Ryburn and the other police officers could have reasonably believed they were justified in entering the Huff’s residence without a warrant “to ensure that no one inside the house had a gun after Mrs. Huff ran into the house…” evading the question of whether anyone in the house had a gun.
The Court reviews the rapidly evolving situation from the perspective of the officers, and gives great deference to the testimony of the officers describing their fear of potential violence in light of the whole situation, especially when Mrs. Huff “immediately” ran into the house when asked about guns. The Court states Ryburn and the other officers could have concluded “that the Fourth Amendment permitted them to enter the Huff residence if there was an objectively reasonable basis for fearing that violence was imminent,” and decides that they acted reasonably in this situation.
In both cases, police are doing the things that police officers may often do in on-scene investigations, reacting to circumstances as they unfold. In Perry, the witness’s spontaneous identification of the suspect alleviated the need for the police to initiate an identification procedure that would have been the normal protocol. Because the witness identified the suspect on her own, there was no need to scrutinize a police out-of-court identification procedure.
The Ryburn case is a reminder that police are judged “from the perspective of a reasonable officer on the scene, rather than the 20/20 vision of hindsight,” Graham v. Connor (1989). It is significant that the Ryburn officers testified to the substance of their concerns, specifically explaining the details that caused them to believe they were in a dangerous situation, rather than merely stating they “feared for their safety or the safety of others.” The detailed description of the danger as the officers experienced it clearly helped the Court reach its pro-police decision.
In her 20-year career with law enforcement, Pam McDonald has been a patrol officer, a felony investigator, a felony prosecutor and a college professor in the area of police law. She currently serves as head of the Thomas & Means publications section and assists Randy Means in much of his work. She can be reached at email@example.com.
Randy Means is a partner in Thomas & Means, a law firm specializing entirely in police operations and administration. He has served the national law enforcement community full time for more than 30 years and is the author of “The Law of Policing,” which is available at LRIS.com. He can be reached directly at firstname.lastname@example.org.
Published in Law and Order, May 2012
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