Tenth Circuit Rules Pat-Down Frisk Violated Fourth Amendment
In a case that will bring a tear to the eye of the most cynical civil libertarian, the Tenth Circuit came down on the side of justice and freedom when it held that a Denver Police Officer deprived Luis Espinosa-Organista of his Fourth Amendment right to be free of unreasonable searches when the officer "frisked" Mr. Espinosa-Organista during the execution of a search warrant at the Denver Justice and Peace Committee (DJPC). Denver Justice Peace Committee v. City of Golden, 03-1470 (April 26, 2005). Judge Holloway, writing for the unnanimous three judge panel, held simply that "Espinosa had sufficiently alleged that he was frisked without reasonable suspicion that he was involved in any criminal activity or that he possessed a weapon."
The DJPC shares office space with "the Quaker run American Friends Service Committee (AFSC)". The Golden Police Department sought and received a search warrant to search the offices of the two organizations pursuant to a vandalism investigation. The facts of the case are worth reading to enlighten us of the precarious position of our First Amendment rights. The litigation presents important First Amendment issues, as the search warrant sought, among other items, membership lists.
Mr. Espinosa's claim came before the Tenth Circuit upon an officer's appeal of his motion to dismiss Mr. Espinosa's claim that the pat-down frisk was unreasonable. Mr. Espinosa was the office administrator for DJPC and his wife worked for AFSC. Mr. Espinosa arrived at the shared office after the execution of the search warrant had begun. When he arrived, a police officer asked for his identification, which he provided, and proceeded to pat-down Mr. Espinosa. The police conducted a frisk of Mr. Espinosa only. Mr. Espinosa brought suit for nominal damges and attorney fees.
In deciding that the frisk deprived Mr. Espinosa of his Fourth Amendment rights, the Tenth Circuit focused on the "nature of the search warrant being executed." The police were searching for items subject to First Amendment protection and Mr. Espinosa was not implicated in the alleged act of vandalism. The Tenth Circuit rejected an argument that officers should be allowed to frisk anyone present at the execution of a search warrant.
Kennedy & Oliver will no doubt be citing the Espinosa decision for years to come. We are preparing a suit on behalf of an African American male in Clovis who was searched in a restaurant, while eating with his son. A Clovis police officer claimed to smell marijuana on him. The Espinosa case gives us a legal precedent and a "give a darn" precedent, which sometimes is more important for our judiciary. We congratulate Mr. Espinosa and his attorneys - Mark Silverstein and Lino S. Lipinsky of Denver.
Thank you.