U.S. Supreme Court Decides Case on Potential Unreliable Eyewitness Testimony

• Perry v. New Hampshire

The U.S. Supreme Court recently decided the case of Perry v. New Hampshire. We originally wrote about the Perry case back in September. The defendant in the case was identified by a witness while also standing next to a police officer. When the witness was first asked for a description of the person suspected of committing a burglary, the witness said he was a "tall black man." When asked by an officer if she could provide a more detailed description, she pointed to the defendant standing with another officer and identified him as the suspect of the burglary. The question for the court was whether there must be police misconduct to successfully exclude unduly suggestive eyewitness identification evidence as a violation of due process. In a more broad sense, the Court was asked to determine if the standards for introducing eyewitness identifications should be strengthened due to the inherent unreliability of them.

In and 8 to 1 decision authored by Justice Ruth Bader Ginsburg, the court held that some sort of police misconduct is required for a judge to throw out and eyewitness identification. Specifically, the eyewitness testimony will not be thrown out unless it can be shown that the police have manipulated circumstances to produce a certain outcome. Justice Ginsburg cited to the purpose behind this rule as the reasoning for neglecting to strengthen the standards for admitting an eyewitness identification. The purpose behind it, she stated, is to deter police misconduct. Specifically, she said "when there is no misconduct, there is nothing to deter." By declining to hold otherwise, the Court left the job to the jury to determine the reliability of an eyewitness identification. By allowing the identification to be admitted, the jury will still have the opportunity to hear any rebuttal by the defense. The Court felt this was enough to surpass the inherent unreliable nature of an eyewitness identification.

Justice Sonya Sotomayor was the only dissenting Justice. She disagreed with the purpose of the rule of requiring police misconduct. According to her the purpose of the rule is to ensure a fair trial, not to deter police misconduct. Anything that weakens the opportunity for the defendant to have a fair trial should not be admitted. She stated in her dissent,

"Whether the police have created the suggestive circumstances intentionally or inadvertently... it is no more or less likely to misidentify the perpetrator. It is no more or less powerful to the jury."

This decision is quite controversial given the multitude of scientific studies that have proven that eyewitness identification is unreliable. It is no secret many convictions have been based off of eyewitness identification. Many of those convicted based on eyewitness identifications were later exonerated when technology progressed into the the use of DNA testing. It may be surprising to some that the Court has ignored the evidence of the this blatant unreliability, especially when there is a chance that many convictions are tainted with unreliable identifications. It will be interesting to see when the Court will be presented with this issue next. It is almost certain to rise again.

Sixth Circuit Reverses District Court's Refusal to Suppress Evidence Resulting From an Unreasonable Search and Seizure

• United States v. Beauchamp

The Sixth Circuit decided U.S. v. Gevoyl Beauchamp, yesterday. Beauchamp pleaded guilty to possession with intent to distribute crack cocaine but later appealed arguing that the District Court was wrong when it refused to suppress evidence of drugs found pursuant to a search of Beauchamp. Specifically, he argued that the search of his person was unlawfully conducted.  It was without reasonable suspicion.

At 2:30 am on February 15, 2008 law enforcement was patrolling near the Jacob Price housing project in Covington, Kentucky due to an increase in drug activity. Officer Dees saw Beauchamp talking with another individual. When Beauchamp saw the officer, he hurriedly walked away without making eye contact. Officer Dees told his partner, Officer Fain to stop the "suspicious subject." Officer Fain followed Beauchamp in his patrol car, parking next to an iron fence where Beauchamp stood. He told Beauchamp to stop and walk back towards his patrol car. The officer testified that he looked "very nervous, visibly shaking." Officer Fain asked Beauchamp where he had been and where he was going. Beauchamp gave vague answers but complied with the officer's requests. Officer Fain then frisked Beauchamp for weapons. While conducting the frisk, he asked Beauchamp if he had anything the officer should be aware of. Beauchamp replied that he did not. The Officer didn't find any weapons, but then asked Beauchamp if he could conduct a further search. Beauchamp said yes. Officer Fain noticed plastic hidden in Beauchamp's underwear.

Officer Dees then arrived and recognized Beauchamp from previous encounters. Officer Fain gave Officer Dees a look indicating he found something while conducting the search. Once Officer Dees began to search his pants, Beauchamp tried to run. He was stopped and Officer Fain found the plastic which contained rocks of crack cocaine.

Beauchamp filed a motion to suppress the evidence found from the search at trial, but the district court refused. He appealed to the Sixth Circuit Court of Appeals.

The Court began its analysis by stating that there are three different types of permissible encounters between civilians and police officers: 1) consensual encounters which may be initiated without any form of suspicion; 2) the investigative detention, which if non-consensual, must be supported by a reasonable, articulable suspicion of criminal activity; and 3) the arrest, valid only if supported by probable cause. Since the Fourth Amendment applies to all searches and seizures, the Court first analyzed whether the stop of Beauchamp was a seizure, warranting Fourth Amendment protection. A seizure occurs when, after looking at all circumstances surrounding the event, a reasonable person would have believed that he was not free to leave. The Court held that a reasonable person in Beauchamp's position would not believe that he was free to leave. He had been pursued by both officers and instructed to stop and walk back towards Officer Fain. After being pursued by both officers, Beauchamp would have been reasonable in believing that the two officers were targeting him, thus believing that he was not free to leave. The Court held that this was a seizure and that the seizure occurred once Beauchamp and Officer Fain spoke at the fence.

The Court then analyzed whether the officers had reasonable and articulable suspicion to stop and search Beauchamp. In order to do so, the Court had to examine the totality of the circumstances as they existed at the time of the stop. There were five facts the district court alluded to: that Beauchamp was 1) recognized by an officer from previous encounters, 2) at 2:30 in the morning, 3) in a housing project that was the source of many drug complaints, 4) with another individual, and 5) he hurriedly walked away from the police while avoiding eye contact.

The court stated that the first fact is not applicable to this analysis because Officer Dees only recognized Beauchamp after the search had already begun. The second and third facts, the court said, should be applied carefully. The Court explained that just because Beauchamp was in a drug-prone housing project at 2:30 in the morning, was not enough to establish reasonable suspicion of criminal activity. Officer Dees did not see Beauchamp engage in anything resembling drug activity; all he saw was Beauchamp with another person before he walked away. The fourth fact - that Beauchamp was seen with another person - is not indicative of criminal activity. The fifth fact - hurriedly walking away from the officer without making eye contact - is also not enough to establish reasonable suspicion. The Sixth Circuit has regularly held that merely walking away from the police, without any other suspicious conduct, does not establish reasonable suspicion.

Without reasonable suspicion, the search of Beauchamp was unlawful. The Court further held that although Beauchamp consented to a search of his person, consent that is obtained after an illegal seizure is tainted and does not justify a search. This rule was articulated by the United States Supreme Court and has been regularly applied in the Sixth Circuit.

Because the initial seizure was unlawful, the subsequent search of Beauchamp was unlawful regardless of his consent. Given this conclusion, the Court held that the evidence should have been suppressed. The Court reversed the District Court and remanded for further proceedings.

TN Supreme Court Affirms Defendant's Four Violent Felony Convictions

• State of Tennessee v. Christopher Lee Davis

The TN Supreme Court decided today to affirm the conviction of Christopher Lee Davis for aggravated robbery, carjacking, attempt to commit especially aggravated kidnapping, and attempt to commit first degree murder. The Defendant was one of two men who pulled up to a car wash in Trousdale County planning to rob a man washing his car. The victim, Glen McDaniel, was approached by the two men wearing bandanas over their faces. Both men were African American, and both men were tall. The Defendant was wearing a red hat that had a depiction of a $100 bill embroidered on it. The two men forced Mr. McDaniel into his car, pointing a gun at him the entire time. He drove to an ATM where he was forced to empty his bank account. Mr. McDaniel was told to drive back to the car wash where he pleaded with the two men to take his car and leave him there. They refused. The Defendant first stated that Mr. McDaniel was going with them. At that point, the other man got a roll of black duct tape and began to bind Mr. McDaniel's arms behind his back. Mr. McDaniel then put up a fight. Because of the struggle, the Defendant exclaimed that he was going to kill Mr. McDaniel "right here!" Mr. McDaniel was able to get away on foot while the two men drove off in his Monte Carlo.

The next day, after obtaining a description from Mr. McDaniel of the two men and the Monte Carlo, officers found the car parked at a boat dock. They began the process of investigating the car when a white Crown Victoria slowly pulled into the parking lot where the Monte Carlo sat. According to officers the two men in the car were African American, and when they saw the officers, "they're eyes got as wide as saucers." They jerked the car in the opposite direction, back onto the road and turned around to head back the opposite way. One of the officers, Detective Tarlecky, suspected the people in the Crown Victoria to be the suspects because, in his experience, carjackers often leave cars in remote places only to come back and continue to strip the car of its parts. Detective Tarlecky felt he had enough reasonable suspicion to pull the Crown Victoria over. The driver of the car consented to a search of the car. Pursuant to that search, Detective Tarlecky found the key to the Monte Carlo. At that point, the officer arrested both men. A subsequent search of the Defendant's home also yielded various instruments of the crime including the hat, the bandanas, and the missing cd player from the Monte Carlo.

At trial, the Defendant was convicted on all counts. He was sentence to a total of 49 years in prison. These convictions were affirmed by the Court of Appeals. The Defendant argues, however, that the officer did not have reasonable suspicion to pull the car over. Thus, all the evidence recovered from the warrantless search should have been suppressed.

The Supreme Court stated that in order to determine whether the trial court was correct in concluding that the officer had reasonable suspicion to search the car, it must examine all the fact surrounding the situation. It stated that reasonable suspicion is a lesser standard than probable cause, and that it is "a particularized and objective basis for suspecting the subject of a stop of criminal activity." The Court agreed that the officer had reasonable suspicion. The facts that led to a reasonable suspicion included the general description of the suspects, the fact that the car had not been completely stripped of valuable items, the abrupt and evasive behavior of the Crown Victoria's driver, and the startled and suspicious demeanor of both occupants in the Crown Victoria. Given the totality of the circumstances, the Court explained, a rational trier of fact could have found that the officer had reasonable suspicion to search the car.

The other issue on appeal was whether the evidence presented at trial was sufficient enough to warrant a conviction for attempt to commit first degree murder. In order to satisfy the elements of attempt to commit first degree murder, the state must prove that there exists premeditation and that the Defendant had the intent to commit the crime. The Court again relied heavily on the specific facts to determine whether the intent to kill was present, including the fact that the Defendant pointed his gun at the victim the entire time, and also the fact that he stated he was going to kill the victim "right here." The Court also held that the Defendant's conduct was premeditated since he arrived at the scene with a gun and duct tape, expecting to use both items. A reasonable jury could infer from these facts that the Defendant had the intent to kill and that his actions were premeditated. This was enough to satisfy the TN Statute for attempt to commit first degree murder.

While the Court ultimately affirmed all four convictions, it remanded the case back to the trial court to determine if his sentence (a combination of periods of years of incarceration, some to be served consecutively and others to be served concurrently) was calculated correctly.

Federal Judge Dismisses Lawsuit Against Chattanooga Police Officers (D&H Clients)

Federal Judge Dismisses Lawsuit In Police Shooting Of Alonzo Heyward
Collier Says Officers Did Not Violate Constitutional Rights Through Use Of Excessive Force

• Order & Memorandum: Wells v. City of Chattanooga

Federal Judge Curtis Collier has dismissed a lawsuit brought by the family of a rifle-wielding man who was shot on July 18, 2009, by six city police officers.  Five of these Chattanooga Police Officers are represented by Davis & Hoss.


Alonzo Heyward had 43 bullet wounds, but Judge Collier said he refused to comply with commands to stop and give up the gun, he started to walk in a house with the weapon, and he turned the rifle toward the officers after he was tased.


Judge Collier said, "Because a reasonable fact-finder, viewing the facts in the light most favorable to plaintiffs, could not find the officers violated Heyward's constitutional rights through excessive use of force, it is unnecessary to consider whether any alleged violated right was 'firmly established.'"


He said the six officers had a duty to stop Heyward from going into the house with the rifle and "had manifest probable cause to believe Heyward posed an immediate serious threat of physical harm to themselves and others."


Attorney Bryan Hoss, who represented five of the officers along with attorney Lee Davis, said, "This has taken two years, but we have said from day one the officers had a reason for what they did and they are finally vindicated."
He added, "These are great officers. Five of the six are still on the streets patrolling for the citizens of Chattanooga, keeping us safe."


Attorney Hoss said the case had been set to go to trial on July 25 and was expected to last two weeks. The defense had over 250 exhibits and over 20 witnesses ready to go.


Attorney Johnny Houston represented officer Deborah Dennison, who married, moved to Alabama and is in another line of work.


The city was also sued and was represented by Phil Noblette and Crystal Freiberg of the city attorney's office.


Police said the officers fired a total of 59 shots.


Officers Dennison, Lauren Bacha, Zachery Moody, George Romero, William Salyers and Bryan Wood were initially placed on paid leave according to Chattanooga Police Department policy.


Police confronted Heyward on the porch of a house at 4316A 7th Ave. after first finding him on Rossville Boulevard.


John Wilson reported in the Chattanoogan the article above. 

Sixth Circuit Finds Policer Officer Use of Force Reasonable

• MITCH HAYDEN V. PONTIAC POLICE OFFICER DWIGHT GREEN

Today the Sixth Circuit found that Pontiac Michigan Police Officer Dwight Green used reasonable force in this case involving the stop of a motorist and his forceful removal of the driver.  Hayden, the driver, was involved in an accident with another motorist and left the scene without giving his contact information or speaking to the police.  Officer Green spoted Hayden a short ditance from the accident and attempted to stop him.  When that failed, he used more forceful actions that Hayden objected to and that were the subject of this federal lawsuit.

The question is whether there was any constitutional violation here. In Hayden’s view, Green violated the Fourth Amendment’s prohibition on “the use of excessive force by arresting and investigating officers.” Smoak v. Hall, 460 F.3d 768, 783 (6th Cir. 2006). We decide that issue based on “the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989). In evaluating whether an officer’s use of force was reasonable rather than excessive, we consider “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Smoak, 460 F.3dat 783 (internal quotation marks omitted). “This standard contains a built-in measure of deference to the officer’s on-the-spot judgment about the level of force necessary in light of the circumstances of the particular case.”

The Court found that Officer Green is immune from suit.