731 F.3d 1009 (9th Cir. 2013), 12-10534, United States v. Nickerson

Docket Nº:12-10534.
Citation:731 F.3d 1009
Opinion Judge:BERZON, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Cassandra B. NICKERSON, Defendant-Appellant.
Attorney:Melinda Haag, United States Attorney; Barbara J. Valliere, Assistant United States Attorney, Chief, Appellate Division; and Owen P. Martikan (argued), Assistant United States Attorney, United States Attorney's Office, Northern District of California, San Francisco, CA, for Plaintiff-Appellee. Pau...
Judge Panel:Before: J. CLIFFORD WALLACE and MARSHA S. BERZON, Circuit Judges, and JACK ZOUHARY, District Judge.[*]
Case Date:October 01, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1009

731 F.3d 1009 (9th Cir. 2013)

UNITED STATES of America, Plaintiff-Appellee,

v.

Cassandra B. NICKERSON, Defendant-Appellant.

No. 12-10534.

United States Court of Appeals, Ninth Circuit.

October 1, 2013

Argued and Submitted Sept. 12, 2013.

Page 1010

Melinda Haag, United States Attorney; Barbara J. Valliere, Assistant United States Attorney, Chief, Appellate Division; and Owen P. Martikan (argued), Assistant United States Attorney, United States Attorney's Office, Northern District of California, San Francisco, CA, for Plaintiff-Appellee.

Paul F. DeMeester (argued) and Treva Stewart, San Francisco, CA, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California, Richard Seeborg, District Judge, Presiding. D.C. No. 3:08-cr-00192-RS-1.

Before: J. CLIFFORD WALLACE and MARSHA S. BERZON, Circuit Judges, and JACK ZOUHARY, District Judge.[*]

OPINION

BERZON, Circuit Judge:

Appellant Cassandra B. Nickerson appeals from the District Court's affirmation of her conviction before a Magistrate Judge for three Class B misdemeanors: operating a motor vehicle while under the influence of alcohol in violation of 36 C.F.R. § 1004.23(a)(1); operating a motor

Page 1011

vehicle with a blood alcohol content over 0.08% in violation of 36 C.F.R. § 1004.23(a)(2); and failure to maintain control of a vehicle in violation of 36 C.F.R. § 1004.22(b)(1). We affirm her conviction.

I. Background

On January 6, 2008, at about 10:20 p.m., United States Park Police Officer April Ramos responded to an incident involving a car hitting a curb in the Presidio of San Francisco. At the scene, Officer Ramos saw Nickerson standing next to a disabled vehicle. After Nickerson failed field sobriety tests and preliminary blood alcohol screening tests, Officer Ramos placed her under arrest and transported her to the police station.

At the police station, Officer Ramos conducted a breath test on Nickerson and then placed her in a holding cell. Unbeknownst to Nickerson, a motion-sensitive surveillance camera captured her time in the holding cell. There was no sign posted to warn individuals in the holding cell that they were being taped, and the camera was not readily visible to the cell's occupants. A real-time monitor was available to all officers on duty, including both male and female officers.

The Park Police had no written standards to guide their exercise of discretion with respect to video surveillance. Other police stations across the country, however, use motion-sensitive video cameras, such as the one in the cell in which Nickerson was held, for several purposes. These include for medical and security concerns, such as if a detainee attempts suicide, if a physical altercation occurs between detainees, or if a detainee becomes progressively more intoxicated or sick in the holding cell and needs medical attention. The cameras also serve to deter abusive police conduct because, if police officers are aware that the cells are being monitored, they are less likely to commit physically abusive acts towards detainees.

The holding cell, which was about six feet by three feet in size, contained a toilet that was clearly visible through a glass window in the cell's door. While Nickerson was in the holding cell, she used the toilet. This use was recorded by the motion-sensitive video camera. On the video footage, Nickerson could be seen looking toward the glass window while she was using the toilet. She said she was apprehensive that someone might pass by in the hallway and see her through the glass window.

Nickerson was cited, released, and driven home by an officer at about 12:30 a.m., about two hours after Officer Ramos originally made contact with her.

On March 25, 2008, the United States charged Nickerson by information with operating a motor vehicle while under the influence of alcohol in violation of 36 C.F.R. § 1004.23(a)(1), operating a motor vehicle with a blood alcohol content over 0.08% in violation of 36 C.F.R. § 1004.23(a)(2), and failure to maintain control of a vehicle in violation of 36 C.F.R. § 1004.22(b)(1).

Nickerson and her attorney made arrangements to review the video surveillance as part of the discovery process. They expected to see footage of her breath test at the police station. They said they were surprised and outraged to see that the videotape showed Nickerson using the toilet in the holding cell.

Thereafter, Nickerson filed a motion to dismiss all charges against her on the basis that the videotaping " shocks the conscience" and warranted dismissal under Rochin v. California, 342 U.S. 165, 72 S.Ct...

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