The use of deadly force by the officer raises issues of reasonableness and due process under the Fourth and Fourteenth Amendments, respectively, as discussed by the U.S. Supreme Court in Tennessee v. Garner (1985, 471). The use of deadly force is a seizure and thus protected by the Fourth Amendment. Its use during policing activities must therefore be balanced against the rights of the suspect, by remaining within what would be considered a 'reasonable' use of force. Garner involved a Tennessee statute that authorized all available means to prevent the escape of a suspect, which resulted in an officer shooting and killing a 15-year-old boy who had stolen a purse and 10 dollars from a home. The officer could see that the boy had nothing in his hands and was therefore probably unarmed. After telling the boy to halt, the officer shot and killed him when he attempted to escape over a fence. The majority of the Supreme Court justices agreed with the Court of Appeals for the Sixth Circuit that the use of deadly force to seize an unarmed burglar was unreasonable under the Fourth Amendment.
Regarding the robbery of Mr. Bell in the current case, the use of deadly force by the officer must be based on probable cause and only after a warning is issued to the fleeing suspect (Tennessee v. Garner 1985, 471). Deadly force can also be used in situations when the officer or bystanders are in immediate danger of harm. None of these requirements were met in this case. The officer did not have probable cause to use deadly force, even after Mr. Bell informed him that the fleeing suspect had tried to shoot him.[footnoteRef:2] He did however, have sufficient reason to detain the defendant as part of an investigation into Mr. Bell's claims. Since the officer had just arrived on the scene, he had no way of knowing whether Mr. Bell was a crime victim or a perpetrator. Since the suspect was fleeing on foot and no weapon was sighted by the officer before he opened fire, from the officer's perspective the defendant did not present an immediate danger to the officer or Mr. Bell. Finally, the absence of a warning to the defendant to halt before the officer began shooting represents a clear violation of due process under the Fourteenth Amendment. [2: As was discussed in Michigan v. Bryant (2011, 562).]
The very familiar warning "halt or I'll shoot" would have informed the defendant that the officer wanted the defendant to halt (discussed in Tennessee v. Garner 1985, 471). Even if this warning had been given, the lack of probable cause to justify the use of deadly force should have prevented the officer from shooting at the fleeing defendant. The lack of warning makes it difficult to apply the Fourth Amendment to the officer's actions because the warning would have indicated the officer's intention to seize the defendant under the Fourth Amendment; however, the absence of a warning means the officer was not attempting to seize the defendant and therefore the Fourth Amendment does not apply.
In the absence of a Fourth Amendment issue, the due process clause of the Fourteenth Amendment must be considered in light of the officer's use of deadly force without probable cause (Sacramento v. Lewis 1998, 523). The Supreme Court has limited substantive due process claims under the Fourteenth Amendment to situations where government actions were arbitrary and shocked the conscience. In the absence probable cause or a warning not to flee, the attempted taking of the defendant's life with a bullet can only be interpreted as an arbitrary act by a state actor intended to deprive the defendant of his right to life without due process. As such, this act is sufficient to shock the conscience. This conclusion would render the actions of the officer liable under 42 U.S.C. §1983.
Should the officer claim qualified immunity it seems unlikely the court would grant a summary judgment in favor of the officer (Scott v. Harris 2007, 550). The burden of proof that qualified immunity applies rests on the officer shoulders. In situations where there is some doubt about whether qualified immunity could be invoked, courts traditionally let the matter be decided by a jury. In the current case, it is unlikely that the officer would succeed given the lack of probable cause and a warning. In any case, the municipality would not be able to claim qualified immunity and could be sued under §1983.
The officers who stopped the car for speeding did so under suspicion that the passenger could be the person described in the BOLO. As determined in Whren v. United States (1996, 517), the intent of the officers is irrelevant for the traffic stop as long as the stop is legal. A BOLO had been issued with a description, and the person who exited the woods was a partial match. The stop was legal, but conducting a search incident to a traffic citation would not be upheld under Knowles v. Iowa (1998, 525) unless there were extenuating circumstances, which is the case here. The police were actively engaged in searching for the defendant, witnessed a person partially matching the description get into the car, and after the car began to travel in excess of the speed limit and with one headlight out, conducted a legal traffic stop. While the officers did not have probable cause to make an arrest, the combination of suspicious behavior, partial match to the BOLO, and the sighting of black fuzz on the defendant's white shirt, would create a reasonable suspicion that the passenger was the suspect the police were actively searching for. The officers were therefore justified under Terry v. Ohio (1968, 392) in conducting a frisk to determine whether the occupants of the vehicle were armed in order to ensure their own safety.
The frisk of the driver revealed a concealed pistol, so the arrest of the driver was lawful. The arrest of the passenger, after discovering a chapstik-like container in his pocket, invoked the Fourth Amendment. If this had been a routine traffic stop, the defendant would probably succeed in getting the cocaine evidence suppressed at trial under Knowles v. Ohio (1998, 392) because a search incident to a traffic citation has been held unreasonable under the Fourth Amendment. Since the officer who conducted the search was suspicious only of possible cocaine possession, the officer could not claim the need to preserve evidence under Terry. However, given the partial match to the BOLO and suspicious behavior, the cocaine would have eventually been discovered after the defendant was arrested following positive identification by Mr. Bell. Such evidence is admissible under the inevitable discovery doctrine defined by Nix v. Williams (1984, 467).
Mr. Bell's identification of the defendant at the crime scene would likely be considered non-testimonial under Michigan v. Bryant (2011, 562), since it was given during an ongoing emergency. The emergency the police were facing at the time of the identification is the possible danger that they and the public were facing, given the story Mr. Bell had told the police. The purpose of the identification, at this point in the investigation, was to find and arrest the suspect, thereby eliminating the threat of harm. For this reason, Mr. Bell's identification cannot be excluded under the Confrontation Clause in the Sixth Amendment. The defendant's motion to exclude the identification is moot anyway, since Mr. Bell would probably be willing to participate in a formal lineup with the defendant's attorney present and appear in court as a witness open to cross examination.
The defendant's motion to dismiss the declaration that he made at the crime scene, that the officer had no right to shoot at him, would also likely fail. Under the Excited Utterance Exception to the hearsay rule (Hearsay rule, 2010), which is exactly what the defendant's statement was, the exclamation is admissible.[footnoteRef:3] The rationale behind this exception to the hearsay rule is that most people, when in a state of danger and excitement, tend to make statements free of falsehood. [3: Revisited in Michigan v. Bryant (2011, 562).]
Hearsay rule. (2010). Legal Information Institute, Cornell University Law School. Retrieved 4 Dec. 2012 from http://www.law.cornell.edu/wex/hearsay_rule.
Knowles v. Iowa. 1998. 525 U.S. 113. Print.
Michigan v. Bryant. 2011. (09-150) 562 U.S. ____. Print.
Nix v. Williams. 1984. 467 U.S. 431. Print.
Sacramento v. Lewis. 1998. 523 U.S. 833. Print.
Scott v. Harris. 2007. (05-1631) 550 U.S. ____. Print.
Tennessee v. Garner. 1985. 471 U.S. 1. Print.
Terry v. Ohio. 1968 392 U.S. 1. Print.
Whren v. United States.1996. 517 U.S. 806. Print.
December 5, 2012
The officers had the right to stop the vehicle for speeding and for not using turn signals when changing lanes. Even if the officers executed the traffic stop primarily because of the anonymous tip, the Supreme Court ruled in Whren v. United States (1996, 517) that the intention of the officers is irrelevant in most…