351 P.3d 1171 (Idaho 2015), 42053-2014, James v. City of Boise

Docket Nº:Docket 42053-2014
Citation:351 P.3d 1171, 158 Idaho 713
Opinion Judge:EISMANN, Justice.
Party Name:MELENE JAMES, Plaintiff-Appellant, v. CITY OF BOISE, a political subdivision of the State of Idaho; STEVEN BONAS, STEVEN BUTLER, and TIM KUKLA, Defendants-Respondents
Attorney:John A. Bush, Comstock & Bush, Boise, argued for appellant. Kelley K. Fleming, Assistant City Attorney, Boise, argued for respondents.
Judge Panel:EISMANN, Justice. Chief Justice BURDICK, Justice HORTON and Justice Pro Tem KIDWELL CONCUR. J. JONES, Justice, specially concurring. BURDICK, Chief Justice, HORTON, Justice and Justice Pro Tem KIDWELL CONCUR. J. JONES, Justice, specially concurring.
Case Date:May 21, 2015
Court:Supreme Court of Idaho
 
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Page 1171

351 P.3d 1171 (Idaho 2015)

158 Idaho 713

MELENE JAMES, Plaintiff-Appellant,

v.

CITY OF BOISE, a political subdivision of the State of Idaho; STEVEN BONAS, STEVEN BUTLER, and TIM KUKLA, Defendants-Respondents

Docket No. 42053-2014

Supreme Court of Idaho

May 21, 2015

2015 Opinion No. 49

Page 1172

Appeal from the District Court of the Fourth Judicial District of the State of Idaho, in and for Ada County. Hon. Steven J. Hippler, District Judge.

The judgment of the district court is affirmed.

John A. Bush, Comstock & Bush, Boise, argued for appellant.

Kelley K. Fleming, Assistant City Attorney, Boise, argued for respondents.

EISMANN, Justice. Chief Justice BURDICK, Justice HORTON and Justice Pro Tem KIDWELL CONCUR. J. JONES, Justice, specially concurring.

OPINION

Page 1173

EISMANN, Justice.

This is an appeal from a judgment dismissing the plaintiff's claims seeking to recover damages resulting from being bitten by a police dog when she was mistaken for a burglar. We affirm the judgment of the district court.

I.

Factual Background.

On Sunday, December 26, 2010, at about 5:22 p.m., a citizen made a 911 telephone call to report a breaking and entering at a dental office in Boise. The citizen told the operator that he was at his family's house and heard glass breaking at the dental office across the street. When he went to investigate, he saw a woman about halfway through a window. He stated: " I talked to the lady, and she's trying to get her keys out of the building. She looks like she's, uh, under the influence of either drugs or major alcohol or something." When asked how the woman broke in, the citizen stated that he heard breaking glass, he was across the street, and she was halfway through the glass. He then said, " She's really lethargic, and I think she's probably under the influence of some alcer, uh,

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some drugs." Later in the conversation, he said: " I asked her if she's okay, and she kinda looked at me kinda crazy, and she's not like really anger [sic] or anything, but she's like totally out of it. She's saying she's trying to get her keys out of there." The operator asked if the woman was still in the building, and the citizen answered: " I believe so, yes. She's kind of in the down basement part, and if she was to come back out, I would be able to see her." At about 5:25 p.m., Boise police officers were dispatched to the location of the dental office.

The first to arrive was Officer Butler, who arrived at the scene at about 5:30 p.m. The building was a single story office building with a basement. The basement had windows to the outside and long window wells, each of which served multiple basement windows. There were wrought iron railings to keep people from falling into the window wells.

Officer Butler met with the citizen, who was standing on the north side of the building. He reported that he had seen a woman break the window and enter the building and that he believed she was still in the downstairs part of the building. The officer walked to the northeast corner of the building to a point where he could see that a north-facing basement window had been broken out. He then relayed that information to the other responding officers.

As Officer Butler was looking for suspects, he saw a woman through an east-facing basement window at the northeast corner of the building. She was standing with her right side toward the window, and she had a large can of a malt liquor beverage in her left hand and what appeared to be a knife with a 4-5 inch blade in her right hand. She appeared to be rummaging through things on a workbench or table.1 He observed her briefly, and she then walked out of view. The entire building was dark except the room in which he had seen her standing.

Officer Barber and Sergeant Kukla arrived a few minutes after Officer Butler. Officer Butler told them what he had seen, that the suspect was still in the building, and that she was armed with some kind of an edged weapon. After additional officers arrived, they established a perimeter around the building.

Officer Barber telephoned one of the dentists who owned the building. The dentist came to the scene, and Officer Barber heard him state that no one should be in the building, especially no one who entered by breaking a window. The cleaning lady also came to the scene, and she told Officer Barber that a woman worked in the building. When she began to describe the woman, the dentist reiterated that anyone who had to break into the building was not supposed to be there, so the conversation ended.

At about 5:40 p.m., Sergeant Kukla requested a patrol canine. Officer Bonas, a police officer who was a canine handler, was told of that request when he came on duty at 6:00 p.m. He was informed that there was a request for a patrol canine for a burglary in progress at a dental office. He arrived at the dental office at about 6:10 p.m. and spoke with Officers Barber and Butler and Sergeant Kukla. Lieutenant Schoenborn was also there. Officer Bonas was informed that a witness had seen a woman force entry into the dental office by shattering a downstairs window. Officer Butler stated that he had seen the woman through a window and that she was armed with a knife. Sergeant Kukla and Officer Barber stated that the owner of the business was there and informed them that no one should be inside the building. Officer Bonas went to the northeast corner of

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the building and saw the broken window. He also observed that the entire upstairs and the majority of the downstairs were dark. He then decided that the use of a police dog was reasonable and necessary and the safest way to search for the suspect in the building.

Officer Bonas made the initial decision to use a police dog to find the suspect or suspects in the building. The factors he considered were: that the crime involved was burglary, a felony; burglaries at other local dental offices had occurred that month; one suspect had been seen armed with a knife; dental offices contain nontraditional weapons; the suspect(s) would have the tactical advantage of concealment and could be lying in wait in the dark; Officer Butler had used the public address system in a police car to announce to the suspect inside the building that they were police officers, that if the suspect did not surrender they would use a police dog, and that they may be bitten; 2 and that using a police dog would be safer than having officers search the building, because the officers would have their guns drawn, increasing the danger to all parties involved. Lieutenant Schoenborn, as watch commander, discussed the use of the dog with Sergeant Kukla, and then authorized Officer Bonas to deploy the dog.

Officer Bonas then took the dog out of his car and proceeded to the front door of the building, accompanied by Sergeant Kukla and Officers Barber, Rapp, Butler, and Harr. Officer Barber unlocked the door using a key that had been obtained from either the dentist or the cleaning lady. Officer Bonas announced in a loud voice through the open door: " Suspect in the building. Boise Police canine calling out. Surrender. If you do not surrender--[barking]. Heel. If you do not surrender a police dog will be sent. When he finds you, he will bite you. This is your final warning barking]." 3 There was no response from inside the building, so the officers entered and began searching the ground floor.

After about two minutes, they stopped near the top of the stairs going to the basement. Officer Bonas then made a second announcement, stating in a loud voice: " Attention in the building. Boise Police canine calling out. Surrender. If you do not surrender, a police dog will be sent, and when he finds you he will bite you. This is your final warning." There was no response.

They then continued searching the ground floor part of the building, which took about six minutes. They again stopped at the top of the stairs going to the basement. Officer Bonas made a third announcement, stating in a loud voice: " Suspect downstairs. Boise Police canine calling out. Surrender. If you do not surrender, a police dog will be sent. When he finds you, he will bite you. This is your final warning." There was no response.

Officer Bonas then decided to send the police dog down the stairs into the basement. He could tell that there was a light on downstairs and that the sides of the stairs were walled, not open, so there was a blind corner at the bottom of the stairs. He released the dog from his leash, and the dog went down the stairs. The officers remained at the top of the stairs. After a while, the dog began barking, indicating that he smelled the odor of a human. Because the human odor could

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be carried by air movement up a wall, across the ceiling, and down on the other side of a room, locating the odor would not mean that the person was located. Officer Bonas then gave the dog a command to bite, which would cause the dog to use his eyes and ears to find a person. After a few seconds, Officer Bonas heard a female screaming from the basement.

He headed down the stairs with the other officers following him. At the bottom of the stairs he turned to the left and saw a bathroom door that was open about seven or eight inches. The screams were coming from the bathroom, and he could see a human torso and the police dog inside the bathroom. The bathroom door then closed. Officer Rapp, who had a shield that he could use for protection, pushed the door open. The interior of the bathroom was dark without any light on, but Officer Bonas could see that the police dog was biting the woman's right arm. She was lying on the floor. He yelled at her to show her hands, but she did not comply. He then commanded the dog to release and lie down, and he did. Once the dog released, Officer Bonas left the bathroom and moved with the dog to a hallway where he could cover the other...

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