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HomeMy WebLinkAbout08-22-2001 Public Reports POLICE CITIZENS REVIEW BOARD A Board of the City of Iowa City 410 East Washington Street Iowa City IA 52240-1826 (319)356-5413 TO: City Council Complainant Stephen Atkins, City Manager R. J. Winkelhake, Chief of Police Officer(s) involved in complaint FROM: Police Citizens Review Board RE: Investigation of PCRB Complaint//01-01 DATE: June 25, 2001 This is the Report of the Police Citizens Review Board (the "Board") review of the investigation of Complaint PCRB//00-01 (the "Complaint"). BOARD'S RESPONSIBILITY Under the City Code of the City of Iowa City, Section 8-8-7 B, the Board's job is to review the Police Chief's Report ("Report") of his investigation of a complaint. The City Code requires the Board to apply a "reasonable basis" standard of review to the Report and to "give deference" to the Report "because of the Police Chief's...professional expertise." Section 8-8-7 B.2 While the City Code directs the Board to make "findings of fact," it also requires that the Board recommend that the Police Chief reverse or modify his findings only if those findings are "unsupported by substantial evidence," are "unreasonable, arbitrary or capricious," or are "contrary to a Police Department policy or practice or any Federal, State or local law." Sections 8-8~7B.2(a), (b), and (c). BOARD'S PROCEDURE The Complaint was received at the Office of the City Clerk on February 12, 2001. As required by Section 8-8-5 of the City Code, the Complaint was referred to the Police Chief for investigation. The Chief's Report was received on May 11, 2001. PCRB #01-01 Page I The Board voted to review the Complaint in accordance with Section 8-8-7 B. l(e), which means the Board will review the Complaint after doing additional investigation on its own. A Board member contacted the complainant regarding interviewing her 11-year-old son and his 15-year-old friend. Two Board members talked with the mother and interviewed her son on May 29, 2001. The 15-year-old declined to be interviewed. The Board scheduled a name-clearing hearing but was inform~b~ th~_ Chief that the officers would not attend. The Board met on May 16, June 6, June 20 and June 25 to c~ler the Complaint. FINDINGS OF FACT -- On January 27, 2001, Officers A and B went to the complainant's residence in an attempt to serve an arrest warrant on a male subject, the ex- husband of the complainant. The subject had given the complainant's residence as a home address to Officer B during a traffic stop. The complainant was not home when the officers arrived. The door was opened by the complainant's 11-year-old son who was at home with a 15-year-old acquaintance left with the 1 l-year-old to keep him company and to assist in dealing with problems that might arise, but not as a babysitter. When he opened the door he observed two Iowa City police officers. There is some disagreement regarding what was said or not said at the door, but it appears the officers were not told they could enter nor were they told to leave. The officers indicated they felt they were given permission to enter because the 11-year-old stepped away from the door when they requested entrance. The 11-year-old denies they asked to enter but rather just walked in. Officer B indicated that as soon as the door was opened he could smell a strong odor of marijuana. When the officers entered the room Officer B observed "what looked like a marijuana roach in the ashtray on the living room coffee table." Officer A secured the object and asked the two boys if there was any more marijuana in the house. When the 11-year-old said "no," Officer A asked whether they could check the house for marijuana. Officer B indicated the 1 l-year-old answered "sure." (CF officer's narrative attached to Incident Report.) The officers searched the living room and found a "small amount of loose marijuana on a spiral notebook on the living room floor." The 11-year- old and his mother refer to this material as ashes - probably from the cigarette of the complainant's older son. (This individual has had a number of charges for marijuana possession and is currently under court supervision.) Officer B asked if there were other persons present in the PCRB #01-01 Page house. The 11-year-old indicated there were not. Officer B indicated that he walked through the house to check if other persons were present. A container (pot) was found in the boys' bedroom containing material that was thought to be marijuana stems. Officer B reported he brought it into the kitchen and left it there. In an interview with two Board members the 11-year-old described the events of January 27, 2OO1, in much the same way as he had to the investigating officer. He stated: he had not invited the officers into the residence; he did not know what marijuana smelled like; he did not smell anything unusual that night; he and his friend were accused of smoking marijuana which they denied; they were requested to empty their pockets and his friend was patted down; his brother had smoked marijuana in the house at an earlier point in time. He did make, however, a number of statements not included in the investigative officer's report. He stated that he had not heard noises from the back of the house or upstairs and that the residents of the upstairs apartment were out of town that night. The second statement was that he had observed Officer B open a drawer of a dresser in his bedroom and flash a light into it. The third statement was that the officer asked permission to search the house, which he refused. Th~ourth~ statement was the officers had not mentioned their interest in his fa~,.~ e~ un~ they were about to leave the house. '~ --~ CONCLUSION This Complaint focuses on two issues: (1) unlawful entry, an~(~ ~" illegal searches. The issues are complicated by the fact that the central individual is a juvenile and by the disputation of circumstances around these two issues. Allegation 1: Police entry into the residence of the complainant was unlawful. Justifying the officers approaching the residence and attempting to gain entry, the Chief's Report notes that it is not "uncommon for officers to check places where a person has been known to hang out in the past" when attempting to locate them for purposes of arrest. While it ia in dispute whether the officers were invited in, waved in or simply walked in there is agreement that the 11-year-old first stood blocking the doorway and later moved in such a way as to provide space allowing unforced entry. Officer A states the 11-year-old answered "yes" when asked if they could enter. Officer B wrote in his Incident Report that they were "allowed" to enter and informed the investigating officer he was uncertain if they were told they could come in or if they were waved in. The 11-year-old indicated that he did not give permission to enter, but had rather stepped out of the doorway to escape the cold. The Chief's Report states, 'A reasonable person would assume that stepping away from a door, after officers ask to speak with a PCRB #01-O1 Page 3 person, is an invitation to come inside." The Board understands that a warrantless entry is proper and allowed when voluntary consent is given. However the Board questions the "voluntariness" of an 1 1-year-old boy's consent when confronted by two police officers late at night. But nonetheless, the Board defers to the expertise of the Chief and finds the conclusion presented in the Report that the 'officers reasonably believed that they were allowed into the home" is supported by substantial evidence and is not unreasonable, arbitrary or capricious. Allegation 1 of the Complaint is NOT SUSTAINED. Allegation 2: The complainant's residence was searched illegally without a warrant. The Board's investigation of this allegation has led them to the conclusion that these facts,require rather complicated legal a~lysis.~ The Board has accepted the Chief s conclusion with regard to the a~tior~ of illegal entry addressed in the previous discussion and has highligl~d-~ts'~'-~ ~'~ discomfort with the issue of consent given the age of the child fromm~° the consent was received. The Board's discomfort with that issue o~-, ~ =' consent is heightened in the analysis of allegation 2. F_.~ -- ;:~ .. In reviewing the Chief's Report, the Board notes the Chief's -- justification for the officers' behavior under several exceptions to search and seizure law. The Board understands that a warrantless search is illegal unless it falls under one of the very specific exceptions in the law. One of the problematic issues is the differing order of events given by Officer A and Officer B and the eleven-year-old boy. Officer B states that immediately upon entry the officers observed marijuana in plain view and seized it. They were given consent to search the rest of the house, searched the immediate area of the living room and then Officer B walked through the rest of the house to make sure no one else was there. Officer A states that they were given consent to enter, that Officer B heard a noise coming from the back of the home so he walked through the apartment, and then Officer A saw marijuana in plain view which was followed with the consent search of the house and the area around the coffee table. The eleven-year-old boy's account more closely supports the account given by Officer B in that he says the officers searched the living room and his friend and that one of the officers searched the home. The Board finds that seizure of any obviously illegal substance in plain view is an appropriate exemption from search and seizure law. The Chief's Report supports the search of the living room area based on the search pursuant to arrest exception. The Chief's Report states that "if these individuals were adults they would have been placed under arrest and at that point the officers would have searched the area immediately around the two people." In order for a search pursuant to arrest to be appropriate, (1) there must be a lawful arrest; (2) the search must be incident to the lawful arrest; PCRB #01-01 Page 4 and (3) that search must be reasonable, both to the area searched and the time within which the search is made. This issue of lawful arrest leads to a rather complicated legal question about possession and control over premises by an eleven-year-old child and a fifteen-year-old visiting friend. The Board would tike to underline its discomfort in making a flat assumption that the presence of an eleven-year-old child in his home in which there is found a burnt marijuana cigarette, i.e. "roach," would lead to a valid arrest for possession of marijuana. With regard to the search of any area outside of the living room, there are two other exceptions under search incident to arrest which are used as justifications for the search of areas outside of the living room. The first legal exception is a cursory safety check. This would allow a cursory check of adjoining areas, closets and other spaces immediately adjoining the area in order to check for other persons that would be a danger to the officers in carrying out an arrest. The second exception is broader and is a protective sweep of the area. The protective sweep requires articulable facts which taken together with rational inferences from those facts warrant a reasonable prudent officer to search areas that could harbor an individual posing danger. It appears that Officer B is justifying the search of the rest of the premises under the cursory safety check since he does not provide articulable facts that would infer a concern of an individual posing danger to the officers. Officer A uses the explanation of a "noise" in order to infer that a protective sweep of the premises was necessary. The problem with the noise justification is that other than the eleven-year-old boy and his fifteen-year-old friend there were no other people home at the time the officers arrived. There was an upstairs apartment which was empty at the time. These searches should have been very cursory. The boy's account of these searches raise questions because it appears that the officers did not check in closets or other reasonable places that a person may hide, but did check in the eleven-year-old boy's bedroom drawer which certainly could not harbor an individual posing danger to the officers and would appear to be a violation of search and seizure law. The final "blanket" exception to search and seizure law employed in the Chief's Report is that of "consent." As stated in our analysis of allegation 1, the Board is uncomfortable with the use of an eleven-year-old's consent to gain access to a residence. The Board's discomfort with this issue is heightened if such consent is used to search the residence. The voluntariness of the consent is problematic in that the Board doubts that the eleven-year-old child had any knowledge of his rights or his mother's [~hts with regard to the privacy of her home. The problem is widened by 'dp ' · ~ .-- cc_ of thor arty consent and the question of what areas of the residenceS, *~r~*~_ -TI an eleven-year-old boy would have sufflcmnt control over in whl~.J~t~_~ any, .-<r- iT1 give consent to search. He clearly was not old enough to stay home by himself and he shared a room with his sixteen-year-old brother. The Board strongly questions whether he possessed common authority over any part of the residence in which to give consent to search. Given the complexity of the consent issue as it relates to the legality of a search of the complainant's residence, the Board believes it would have been appropriate for the officers to observe the procedures outlined in General Order Number 00-01 (Search and Seizure) and Uconsult with an on-duty watch supervisor.= The Board concludes that aspects of the search were not consistent with law and Iowa City Police Department policy, and therefore disagrees with the findings of the Chief's Report. Allegation 2 of the Complaint is SUSTAINED. BOARD CONCERNS 1. The Board understands the rationale allowing a walk through of a residence or other edifice, absent a search warrant, to protect officers from unexpected or concealed attack, but is concerned that some officers may not fully understand the restrictions imposed on this limited search. The Board recommends that this topic be incorporated into routine training. 2. The Board is unclear to what extent procedural law created for situations involving adults may be used as guidelines for dealing with juveniles, particularly when the circumstances are not identical. For example, if a search of an area near adults who have been arrested for a drug offense is appropriate, is such search appropriate for juveniles who could be taken into custody but are not. The Board would recommend clarification of this issue in order to reduce ambiguities in the future. 3. We recommend that, if a policy doesn't currently exist regarding how Iowa City police officers should handle consent situations involving individuals under 18 years of age, one should be formulated with particular attention to those at the lower end of the age continuum. PCRB #01-01 Page 6