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;
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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
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