Friday, August 17, 2018
Page 3
Ninth Circuit:
Woman Told by Officer to Go to Car, Wait There, Wasn’t Restrained
Panel Says Reasonable Person Would Realize It Was Permissible to Drive Off
By a MetNews Staff Writer
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Above is pictured the M Motel in El Monte where defendant Brittany Marie Grigsby encountered two police officers, one of whom told her to go to her car and remain there until he came to speak with her. That directive, the Ninth U.S. Circuit Court of Appeals held Wednesday, did not constitute a restraint and she should have realized she was free to drive off. |
An El Monte police officer who told a woman to go to her car and wait for him to come over to talk with her did not effect a “seizure” of her, the Ninth U.S. Circuit Court of Appeals has held.
A three-judge panel on Wednesday affirmed the denial of a motion to suppress evidence found in the automobile being driven by Brittany Marie Grigsby, who is facing trial on identity theft charges. Grigsby contends the evidence is the fruit of an unlawful seizure of her, followed by a constitutionally impermissible search of the vehicle she had rented.
The panel—comprised of Ninth Circuit Judges Marsha Berzon and Paul Watford, joined by Third Circuit Judge D. Michael Fisher, sitting by designation—was unanimous in finding that there was no seizure of Grigsby. Berzon dissented as to the reasonableness of a search of the car.
No Seizure
The directive to her by Officer Jared Atkinson on Jan. 25, 2016, at approximately 1:20 a.m., “did not amount to a seizure,” the memorandum opinion says.
It notes that “Grigsby was the one who initiated the encounter by approaching the police officers on a public sidewalk.”
Atkinson and Officer Ryan Abbott were questioning a possible trespasser, Samuel Soto, on the sidewalk in front of the M Motel on Valley Boulevard, when Grigsby came up to them and announced she was there to provide transportation to Soto. As Atkinson recounted the incident, in a declaration:
“I responded by instructing defendant to return to her vehicle and wait until I came to speak with her. I instructed defendant to return to her vehicle because Officer Abbott and I were still investigating Soto, and her continued presence could be a distraction and a safety concern for Officer Abbott and myself. I also wanted to separate Soto and defendant so that I could check Soto’s story against defendant’s to see if Soto was lying about what he was doing in the area. The purpose of asking defendant to return to her vehicle was not to detain or arrest her, but simply to place distance between Soto and defendant for officer safety and investigation of Soto.”
Reasonable Person
The opinion rejects Grigsby’s contention that a reasonable person would feel compelled to abide by the command of an armed, uniformed officer to go her vehicle and remain there until the officer came to speak with her, and that Grigsby was, therefore, under a restraint.
To the contrary, the opinion says, a “reasonable person in Grigsby’s circumstances would have felt free to…leave the encounter,” declaring that that Atkinson did not restrain or obstruct Grigsby “in any way.”
She returned to the automobile, which was parked next door at a 7-Eleven, and out of the officers’ view.
The opinion says:
“Nothing prevented her from driving away. Officer Atkinson’s instruction, without more, does not transform the encounter into a seizure. In context, Officer Atkinson issued only a condition for picking up Mr. Soto: If Grigsby wished to leave with Mr. Soto, she had to wait until the officers were finished questioning him If not, she was free to leave.”
The judges rejected the defendant’s contention on appeal that the seizure was intensified when Atkinson came over and asked for her name and date of birth so it would be known who it was who would be transporting Soto. A footnote in the opinion says:
“Because we conclude that Grigsby was not initially seized, her seizure could not have continued when Officer Atkinson asked for identifying information.”
Grigsby Arrested
Grigsby provided the information Atkinson requested. The officer went to his car and did a records check, which revealed that she was a suspect in a 2015 burglary in El Monte.
He handcuffed and arrested her. Atkinson determined that because the 7-Eleven was in a high-crime area, the vehicle was vulnerable to vandalism, burglary or theft, and had to be impounded.
The three judges agreed with that call, saying:
“We have repeatedly held that the community caretaking exception can justify impoundment of an arrestee’s vehicle from a private parking lot to protect it from vandalism.”
Where Berzon differed with the other two judges was over the search of the vehicle.
Automobile Exception
’The portion of the memorandum opinion with which Berzon disagrees says that the search was justified by the legitimate purpose of inventorying the contents to reduce the chances that the owner will claim the police lost or damaged items. It adds that once Atkinson found evidence of crimes, the “automobile exception” to the normal Fourth Amendment requirement of obtaining a warrant came into play authorizing a continued search.
El Monte Police Department (“EMPD”) procedures set forth:
“All property in a stored or impounded vehicle shall be inventoried and listed on the vehicle storage form. This includes the trunk and any compartments or containers, even if closed and/or locked.”
According to his declaration, Atkinson, knowing that the vehicle would necessarily be searched for that purpose, proceeded to examine the contents before a tow truck arrived at the 7-Eleven. He found a bag containing about 300 ATM cards, credit cards, and debit cards each bearing a different name.
The officer also found about a dozen pieces of mail sent to persons in the area with pre-approved credit cards. He advised Grigsby she was additionally being arrested for identity theft.
Atkinson continued the search, finding, in the trunk, various incriminating items including an embossing machine that can be used to stamp names and numbers on blank credit cards.
Justification Provided
Under the majority’s view:
“Once Officer Atkinson discovered credit cards with names of different people in that bag, he was justified in searching the rest of the vehicle under the automobile exception.”
That exception permits continued searching of a vehicle where there is probable cause to believe evidence of a crime is present.
“The fact that Officer Atkinson did not follow EMPD inventory policy by listing all property found in the vehicle storage form does not affect the propriety of the vehicle search after he developed probable cause that the vehicle would contain more evidence of identity theft,” the opinion says. “At that point, whether a valid inventory search or not, the search was independently justified under the automobile exception.”
Berzon’s Partial Dissent
Berzon protested:
“The majority holds that Officer Atkinson initiated a valid inventory search, and then—upon discovering incriminating evidence in the car—was justified in continuing the search under the automobile exception to the Fourth Amendment’s warrant requirement. But the majority errs in the first step. The initiation of the search cannot be justified as an inventory search. Officer Atkinson never intended to follow, nor did he follow, EMPD’s standard inventory procedures.”
She declared:
“The majority’s holding will allow police officers to enter an individual’s car without a warrant and without regard to standard police procedures in their search for incriminating evidence. Any evidence found then retroactively justifies the initial search.”
The judge asserted that “this approach gets the Fourth Amendment backwards” and reflects an “ends justify the means” outlook.
Grigsby is charged with the federal offenses of possession of device making equipment (the machine Atkinson found in the trunk), unlawful possession of 15 or more unauthorized access devices, aggravated identity theft, and possession of stolen mail.
The case is U.S. v. Grigsby, No. 17-50147.
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