Dear pcventures-ga;
Thank you for allowing me an opportunity to answer your interesting question.
Generally speaking, the conduct of police and the level of care taken
during the course of a search is mandated by department policy which
varies from one jurisdiction to another. Liability is determined on a
case-by-case basis, but the officers themselves, unless acting
illegally, cannot be held personally liable as long as they are acting
in good faith under the color of law. In other words, MOST OF THE TIME
the agency that employs them (i.e. city, county, state, etc) is
responsible for their actions (there are some exceptions though).
From a legal and constitutional standpoint, search and seizure laws
are fairly clear on what an officer can and must do and on the minimum
criteria that must be present which authorize police to deprive an
individual of his property or to restrict his movements. These
provisions were decided and set forth by the 1968 Supreme Court
decision entitled, Terry v. Ohio, the so-called the ?stop and frisk?
rule:
John W. TERRY, Petitioner,
v.
STATE OF OHIO
(Cite as: 392 U.S. 1, 88 S.Ct. 1968)
http://www.soc.umn.edu/~samaha/cases/terry%20v%20ohio.html
Originally, the Supreme Court upheld as constitutionally permissible
the police practice of temporarily detaining civilians for
investigatory "stops" and, under limited circumstances, subjecting
them to protective, "patdown" frisks, and it has continued to be valid
to this day. However the ?stop and frisk? decision in Terry spawned a
huge number of subsequent decisions over the years relative to search
warrants, false arrest, unlawful detention, and many other issues.
Without trying to guess what every agency in the United States does
per department policy, I will generalize about the common practices
with regard to some hypothetical scenarios (based on real ones I know
about) here, relevant to your question:
. . . . . . . .
A man is observes weaving from ditch to ditch in his vehicle. The
officer pulls him over and the driver refuses to open the door or roll
down the window. After repeated commands to exit the vehicle or turn
the vehicle off the driver refuses, so the officer breaks the driver?s
door window and physically pulls the man out of the car. It turns out
that the man is not intoxicated and has committed no crime, but rather
he is having a diabetic episode.
Can the agency be sued to replace the car window? Yes.
Will the driver win his case? Probably not. The officer, believing
that the driver was intoxicated, acted appropriately in that he saw
the immediate necessity to remove the driver from the vehicle to
prevent him from potentially harming himself or others. In doing so it
was determined that the man was not breaking the law at all, but was
in jeopardy from a life threatening condition, thus the focus shifts
to the officer?s responsibility to save the man?s life at all costs,
including damaging his vehicle.
. . . . . . . .
Officers have legally obtained a search warrant for a house to search
for drugs. Now keep in mind that on the affidavit that accompanies all
search warrants the address of the house is listed *as well as* a
phsycial description of the premises (i.e. 100 Main Street, Anytown,
USA ? a white frame house with a blue fence and a red roof). This is a
common practice. Officers arrive in front of 100 Main Street to
conduct the search, race up to the house and crash in the door with a
battering ram only to realize that they have broken into 102 Main
Street.
Can the agency be sued to replace the door? Yes.
Will the homeowner win his case? Yes, certainly. Negligence such as
this is a no-brainer in a civil suit.
. . . . . . . .
Officers have legally obtained a search warrant for a house to search
for drugs. They arrive at the correct address and crash the door in.
During the course of the search a police dog (I also trained police
dogs for years by the way) provides a positive alert for the presence
of narcotics on the homeowner?s king size bed mattress. Officers slice
open the mattress and drugs are recovered. The homeowner is
subsequently arrested and charged. Because of some technicality ? lets
say, inappropriate handling of evidence or something else that is
unfortunate, but not illegal - the charges against the homeowner are
dropped.
Can the agency be sued to replace the door and mattress? Yes.
Will the homeowner win his case? Probably not. He DID have contraband
in his possession, and the officers DID act under the color of law.
What?s more, the authorities reserve the right to prosecute the
homeowner for up to one year after the incident if they can figure out
of a way to do it successfully without using the mishandled evidence.
(this issue is rather complicated, but suffice it to say that he?s
much better off to count his blessings and chalk the whole experience
up to great luck).
. . . . . . . .
A male officer sees an attractive woman driving down the road. He
decides he wants to get to know her better. He pulls her over and gets
her out of the car, frisks her body and goes through her purse looking
for her Identification and telephone number. He asks her out for a
date . (believe me, I've seen dumber things than this happen in my
career).
Can she sue even though she has no real damages to property? You bet.
Will she win? Oh yeah! And it?ll be ugly too.
. . . . . . . .
So you see, in general, as long as the officers act in good faith
under the color of law and no negligence or malice can be attributed
to their actions, the police are simply doing what they are sworn and
charged by the public to do. However in defense of citizens who do
sustain damage to their property as a direct result of these types of
searches and who are entitled to compensation for the value of those
damages, any compensation paid to a citizen by the agency employing
the officers would be determined by the agency or by a civil judgment
on a case-by-case basis according to the facts in each incident.
I hope you find that my research exceeds your expectations and that
this information helps to clear up your questions on the matter. If
you have any questions about my research please post a clarification
request prior to rating the answer. Otherwise I welcome your rating
and your final comments and I look forward to working with you again
in the near future. Thank you for bringing your question to us.
Best regards;
Tutuzdad-ga ? Google Answers Researcher
INFORMATION SOURCES
20+ years law professional enforcement experience |
