News from the Courts . . .

Court Reaffirms the Totality of the Circumstances Test for Establishing Reasonable Suspicion for an Investigative Stop.

A federal Border Patrol agent stopped a minivan carrying two adults and three children on an unpaved road in a remote area of southern Arizona. The van was found to be carrying 128 pounds of marijuana.In affirming a trial court suppression of evidence, the Ninth Circuit Court of Appeals broke down the facts known to the agent into 10 separate components, including the fact that the minivan's driver slowed abruptly when he saw the border patrol car, avoided eye contact with the agent, and the fact that children in the backseat of the minivan waved at the agent in a mechanical manner, as if they had been instructed to do so.

The Ninth Circuit ruled that the facts were either irrelevant or innocuous and were quot;insufficient to give rise to reasonable suspicion.quot;

On appeal to the Supreme Court, the Court reversed in a unanimous decision and an opinion written by the Chief Justice. The Court ruled that in evaluating whether quot;reasonable suspicionquot; exists for a police officer to detain a suspect briefly for questioning, courts should pay more attention to the officer's experience and the event's overall context than to possibly innocent explanations for individual parts of the incident. It said the Ninth Circuit's approach was inconsistent with the Court's precedents that required reasonable suspicion to be based on the quot;totality of the circumstances,quot; and not isolated facts.

The Court said the agent quot;was entitled to make an assessment of the situation in light of his special training and familiarity with the customs of the area's inhabitants. We think it quite reasonable that a driver's slowing down, stiffening of posture, and failure to acknowledge a sighted law enforcement officer might well be unremarkable in one instance (such as a busy San Francisco highway) while quite unusual in another (such as a remote portion of rural southeastern Arizona).quot; It noted that the road defendant was on was only 30 miles north of the Mexican border and was commonly used by smugglers of aliens and narcotics who wanted to avoid a checkpoint on a parallel major highway.

The Court concluded that while police officers should base investigative stops on more than a quot;hunch,quot; a police officer does not have to exclude facts simply because there is a possibility that an innocent explanation exists for particular conduct.

United States Supreme Court Reaffirms the Constitutionality of Pretext Stops and Arrests.

In a brief per curiam opinion the United States Supreme Court decided a case where an officer observed the commission of a traffic violation and stopped the vehicle. When the officer approached the vehicle, he recognized the driver from a previous police bulletin regarding persons engaged in illegal drug sales. After the officer noticed a roofing hatchet on the floorboard of the vehicle, the driver was arrested for a weapons violation under Arkansas law. The vehicle was impounded prior to being towed to a secure lot. During a subsequent inventory of the vehicle, a large quantity of amphetamines was found.

The Court ruled that if an officer has a legal basis for making a custodial arrest for a particular crime, it does not matter if he has suspicions that the suspect is involved in any other criminal activity.

The Court referred back to its decision in Whren v. United States, 517 U.S. 806 (1996), the case in which it approved so-called "pretext arrests." The Court in Whren stated its "unwillingness to entertain Fourth Amendment challenges based on the actual motivations of individual officers," and held that "subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis."

The Court in the instant case said: "That Whren involved a traffic stop, rather than a custodial arrest, is of no particular moment; indeed, Whren itself relied on United States v. Robinson, 414 U.S. 218, for the proposition that a traffic-violation arrest . . . [will] not be rendered invalid by the fact that it was a mere pretext for a narcotics search."

Thus, as long as there is a legal basis for making a custodial arrest, i.e., objective probable cause, officers may do so, even in cases where they are motivated by a desire to gather evidence of other suspected crimes. The Court also ruled that in interpreting Fourth Amendment rules, the state court below was bound by the precedents of the United States Supreme Court. Reversed, 11 S.W.3d 526 (2000).

Supreme Court Approves Summary Arrests for Minor Offenses.

The plaintiff was stopped by a Texas police officer for failure to have her children seat belted in her vehicle. Police officers in Texas, as in other states, ordinarily issue tickets after stopping motorists for traffic violations.

Rather than doing this, the officer took the extraordinary step of placing plaintiff under full custodial arrest. He allegedly handcuffed her, placed her in his squad car, and took her to the police station. At the police station, she was required to remove her shoes, jewelry, and glasses and empty her pockets. Plaintiff's "mug shot" was taken, and she was placed in a jail cell for approximately one hour until being taken before a magistrate. Ultimately she pled no contest to the seat belt violation and paid the maximum penalty for this violation--a fifty dollar fine. Additional charges of driving without a license and proof of insurance were dismissed.

Plaintiff then filed suit in state court against the city, the police officer, and the chief of police, for damages arising from her incarceration. The city removed the suit to a federal district court which granted summary judgment for the city.

The United States Court of Appeals for the Fifth Circuit, three judge panel, reversed the summary judgment with respect to the Fourth Amendment claim, holding that plaintiff had established that the full custodial arrest for not wearing a seat belt violated a clearly-established Fourth Amendment right.

The Fifth Circuit then granted a rehearing en banc (full court) and vacated the panel's decision. A majority affirmed the district court's judgment, holding that the custodial arrest did not violate plaintiff's Fourth Amendment rights because the officer had probable cause and the arrest was not conducted in an unreasonable manner. 195 F.3d 242 (5th Cir. 1999).

The United States Supreme Court granted certiorari on the question: Does the Fourth Amendment limit use of custodial arrests for fine-only traffic offenses.

In a 5-4 decision and an opinion written by Justice Souter, the Supreme Court affirmed the en banc court below. It held that the Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine. The Court noted that some states have passed laws to limit police authority to make full custodial arrests for minor offenses, and said this trend as well as the "good sense" and "political accountability of local officials" would be adequate to take care of abuses of arrest powers, but soundly rejected an historical argument raised by the plaintiff that the framers of the Fourth Amendment would have regarded such arrests as constitutionally unreasonable. It rejected plaintiff's request to "mint a new rule of constitutional law" forbidding custodial arrests, even upon probable cause, when conviction could not ultimately carry any jail time and the government could show no compelling need for immediate detention.

The Court ruled that plaintiff's arrest satisfied constitutional requirements. It was undisputed that the arresting officer had probable cause to believe that plaintiff had committed a crime in his presence. Because she admitted that neither she nor her children were wearing seat belts, the officer was authorized (though not required) to make a custodial arrest without balancing the costs and benefits or determining whether plaintiff's arrest was in some sense necessary. Nor was the arrest made in an extraordinary manner, or unusually harmful to her privacy or physical interests, according to the Court. It said that whether a search or seizure is "extraordinary" turns, above all else, on the manner in which it is executed and concluded that plaintiff's arrest and subsequent booking, though undoubtedly humiliating, were no more harmful to her interests than a normal custodial arrest.

Justices O'Connor, Stevens, Ginsburg and Breyer dissented in an opinion written by Justice O'Connor. In her dissenting opinion Justice O'Connor said that "unbounded discretion" for the police in making summary arrests for minor offenses "carried with it grave potential for abuse" and warned that "as the recent debate over racial profiling demonstrates all too clearly, a relatively minor traffic infraction may serve as an excuse for stopping and harassing an individual," even though both the plaintiff and the officer in this case were white.

Preventing Defendant From Entering His Home for Two Hours While Police Obtained a Search Warrant for Drugs Did Not Violate the Fourth Amendment.

An Illinois intermediate appellate court ruled that where the police secured defendant's residence for approximately two hours while awaiting a search warrant for drugs as to which they had probable cause to believe defendant had hidden in his residence, and refused to allow defendant into the residence after he came out of the residence onto the front porch, unless accompanied by an officer, to prevent removal or destruction of evidence, this was an unreasonable seizure under the Fourth Amendment. The Illinois court ruled that evidence discovered in the residence upon execution of the search warrant had to be suppressed. 304 Ill.App.3d 395, 713 N.E.2d 93 (1999).

On appeal by the State of Illinois to the United States Supreme Court, the Court reversed 8-1 in a decision written by Justice Breyer. Balancing the state's interest, the nature of the intrusion, and what the Court considered to be the brevity of the seizure, the Court concluded that the police conduct was reasonable under the Fourth Amendment. Although personal property seizures are ordinarily unreasonable unless accomplished pursuant to a warrant, there are exceptions to this rule involving special law enforcement needs, diminished expectations of privacy, minimal intrusions, and the like.

The Court considered the following circumstances, in combination, and concluded that the police restraint was reasonable, and hence lawful. (1) The police had probable cause to believe that defendant's home contained evidence of a crime and unlawful drugs. (2) They had good reason to fear that, unless restrained, defendant would destroy the drugs before they could return with a warrant. (3) They made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy by avoiding a warrantless entry or arrest and preventing defendant only from entering his home unaccompanied. And (4) they imposed the restraint for a limited period, which was no longer than reasonably necessary for them, acting with diligence, to obtain the warrant.

The Court noted that in no prior case had it held unlawful a temporary seizure that was supported by probable cause and was designed to prevent the loss of evidence while the police diligently obtained a warrant in a reasonable period of time.

Justice Souter filed a concurring opinion. Only Justice Stevens dissented. He argued that the court below had correctly "placed a higher value on the sanctity of the ordinary citizen's home than on the prosecution of this petty offense," possession of drug paraphernalia and a small quantity of marijuana, both misdemeanors under Illinois law.

Roadblocks for Drug Enforcement Purposes Ruled Unconstitutional by United States Supreme Court.

Many law enforcement agencies have used roadblock procedures in recent years as part of drug interdiction programs. Some of these programs have been challenged under 42 U.S.C. sec. 1983 and other civil remedy statutes as unconstitutional.

In this case the Indianapolis Police Department operated what was called a "checkpoint" program. Motorists were briefly stopped and examined in order to determine whether they were impaired and whether their driving documents were in order. One of the objectives of the checkpoints was to discover narcotics traffickers. This was done by walking a drug detection dog around a stopped car while the motorist's documents were being checked. The Department was interested in driver impairment, regulatory issues, and interrupting the flow of illegal narcotics in the city.

Written procedures were established in advance for the program. The locations of the checkpoints were selected weeks in advance by police supervisors, based on geographical suitability, taking into consideration area crime statistics and the ability to locate the checkpoint in a location which would minimize interference with normal traffic flow. Drivers approaching each of the predetermined locations were warned, with lighted signs, that they should be prepared to stop for a "narcotics checkpoint" and that a "narcotics K-9" would be in use. Only a set number of cars approaching a given checkpoint location was stopped. All other traffic was permitted to continue without interruption until the last of the vehicles initially stopped was processed. Once the last of the initially stopped cars left, a new group of motorists (the same predetermined number) was stopped. The procedure was followed without deviation and with a minimum of discretion by police officers.

Motorists were stopped at the checkpoint and approached by police officers, at least one of whom was in full uniform. Motorists were requested to show their driver's license and motor vehicle registration. Officers looked for any signs of DUI, including alcohol odors, slurred speech, or disorientation. During the time that a motorist's documents were being checked, a drug detection dog was walked around the car. If the motorist's documentation proved to be in order, and there was no cause for any further detention (such as signs of driving impairment, a positive dog "alert," or the discovery of outstanding warrants), the motorist was allowed to proceed without delay. The checkpoints were operated in a manner to ensure that no motorist was stopped for more than five minutes, unless grounds for a longer detention were discovered during the stop, with the average stop lasting only two to three minutes.

Six of these roadblocks were conducted in accordance with the program during a four month period. Under the program 1,161 vehicles were stopped and 104 motorists were arrested--an effectiveness rate of 9%. The arrests were divided approximately equally between narcotics offenses (55 arrests) and other crimes (49 arrests).

In a civil action challenging the constitutionality of the program, the Seventh Circuit Court of Appeals, Edmond v. Goldsmith, 183 F.3d 659 (7th Cir. 1999), ruled that the roadblock program violated the Fourth Amendment. The court was not persuaded by the arrest rates of 5% for drugs and 9% overall, because the city had as one of its purposes to interdict drug offenders in the hope of incapacitating them and deterring others, as well as checking for driver impairment and traffic and vehicle related violations. Judge Easterbrook dissented in a separate opinion.

On appeal to the U.S. Supreme Court the Seventh Circuit was affirmed in a 6-3 decision in an opinion written by Justice O'Connor.

The Court ruled that because the checkpoint program's primary purpose, as designed by law enforcement administrators, could not be distinguished from the general interest in crime control, the checkpoints violated the Fourth Amendment.

The Court began its analysis by noting that it had upheld brief, suspicionless seizures at a fixed checkpoint designed to intercept illegal aliens, United States v. Martinez-Fuerte, 428 U.S. 543 (1976), and at a sobriety checkpoint aimed at removing drunk drivers from the road, Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990). The Court had also suggested that a similar roadblock to verify drivers' licenses and registrations would be permissible to serve a highway safety interest in Delaware v. Prouse, 440 U.S. 648 (1979). But it had never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal conduct, such as drug trafficking. It noted that this distinguished the checkpoints at issue in this case from those the Court had previously approved, which were designed to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety.

Nor was the checkpoint program justified by the severe nature of the drug problem. The Court said the gravity of the threat alone was not dispositive of questions concerning what constitutional means law enforcement may use to pursue a given purpose.

It also rejected an argument that the checkpoints' primary purpose could be rationalized in terms of a secondary purpose involving a highway safety concern similar to that in Sitz. The Court said that if the program could be justified by its lawful secondary purposes of keeping impaired motorists off the road and verifying licenses and registrations, the police would be able to establish checkpoints for virtually any purpose so long as they also included a license or sobriety check. The primary purpose of checkpoints was relevant to a determination of reasonableness under the Sitz rationale, and here the primary purpose was not highway safety or related issues.

The Court indicated that its holding did not alter the constitutional status of the checkpoints approved in Sitz and Martinez-Fuerte, or the type of checkpoint suggested in Prouse. It also would not affect the validity of border searches or searches in airports and government buildings, which are based on national security and acute public safety.

The Chief Justice and Justices Thomas and Scalia dissented. In arguing for the constitutionality of the checkpoints, the Chief Justice stated: "These stops effectively serve the state's legitimate interests; they are executed in a regularized and neutral manner; and they only minimally intrude upon the privacy of the motorists. They should therefore be constitutional."

Anonymous Tip of Person With a Gun Did Not Support a Stop and Frisk Without Predictive Information Concerning Illegality.

Florida v. J.L., 120 S.Ct. 1375, 2000 WL 309131, No. 98-1993 (2000).

The police received an anonymous tip that one of three young African-American males standing at a bus stop in front of a pawnshop at a specific and public location was carrying a concealed firearm. The tipster described the appearance of each of the young males and said that the individual with the gun was wearing a "plaid-looking" shirt.

Two officer responded within six minutes after receiving the tip. They immediately verified the accuracy of all the appearance and location information provided by the tipster.

Defendant, a juvenile, was standing by the bus stop with two other young African-American males and he was wearing a plaid shirt. A police officer with fourteen years experience approached defendant, asked him to put his hands above his head, and conducted a pat down of his outer garments. She then seized a gun that she saw protruding from the defendants' left pocket. Defendant was taken into custody and charged with unlawfully carrying a concealed firearm and possession of a firearm by a minor under eighteen years of age.

The Supreme Court of Florida ruled that the officer lacked reasonable suspicion for her conduct under Terry v. Ohio, 392 U.S. 1 (1968), in view of the tip's failure either to allege a suspicious activity that the police could verify or to accurately predict some future behavior of the subject. It approved suppression of the handgun, in spite of the fact that the officer had actually verified all the details of the tip. 727 So.2d 204.

On appeal to the United States Supreme Court the Court affirmed in a unanimous decision and an opinion written by Justice Ginsburg. The Court ruled that an anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a police officer's stop and frisk of that person. While the Court reaffirmed the holding of Terry that an officer, for the protection of himself and others, may conduct a carefully limited search for weapons in the outer clothing of persons engaged in unusual conduct where, inter alia, the officer reasonably concludes in light of her experience that criminal activity may be afoot and that the persons in question may be armed and presently dangerous, in this case the officers' suspicion that defendant was carrying a weapon arose not from their own observations but solely from a call made from an unknown location by an unknown caller. The tip did not carry sufficient reliability to provide a reasonable suspicion to make an investigative stop under Terry. There was no predictive information and therefore the police had no way to test the informant's knowledge or credibility.

The Court rejected Florida's argument that the tip was reliable because it accurately described defendant's visible attributes. This argument, the Court said, misapprehends the reliability needed for a tip to justify a Terry stop. The reasonable suspicion in this case required that the tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. The Court declined to adopt a rule that the standard Terry analysis should be modified to create a "firearm exception," under which a tip alleging an illegal gun would justify a stop and frisk even if the accusation would not satisfy the standard pre-search reliability test.

Justice Ginsburg did suggest, however, that the need for reliability might be relaxed in cases where "great danger" was alleged, such as a report that someone was carrying a bomb, or in places such as schools or airports, "where the reasonable expectation of Fourth Amendment privacy is diminished."

Justice Kennedy filed a concurring opinion, joined by the Chief Justice. They noted that while "the Court says all that is necessary to resolve this case," it would have more to say in future cases about the ways in which anonymous tips might be tested for reliability.

Police Practice Points:

As a practical matter, what steps can the police take when faced with an anonymous tip such as that involved in this case? Some of these things were suggested by the concurring opinion of Justice Kennedy:

"It seems appropriate to observe that a tip might be anonymous in come sense yet have certain other features, either supporting reliability or narrowing the likely class of informants, so that the tip does provide the lawful basis for some police action. One such feature, as the Court recognizes, is that the tip predicts future conduct of the alleged criminal. There may be others. For example, if an unnamed caller with a voice which sounds the same each time tells police on two successive nights about criminal activity which in fact occurs each night, a similar call on the third night ought not be treated automatically like the tip in the case now before us. In the instance supposed, there would be a plausible argument that experience cures some of the uncertainty surrounding the anonymity, justifying a proportionate police response. . . .

"If an informant places his anonymity at risk, a court can consider this factor in weighing the reliability of the tip. An instance where a tip might be considered anonymous but nevertheless sufficiently reliable to justify a proportionate police response may be when an unnamed person driving a car the police officer later describes stops for a moment and, face to face, informs the police that criminal activity is occurring. This too seems to be different from the tip in the present case. See United States v. Sierra-Hernandez, 581 F.2d 760 (C.A.9 1978).

"Instant caller identification is widely available to police, and, if anonymous tips are proving unreliable and distracting to police, squad cars can be sent within seconds to the location of the telephone used by the informant. Voice recording of telephone tips might, in appropriate cases, be used by police to locate the caller. It is unlawful to make false reports to the police, e.g., Fla. Stat. Ann. sec. 365.171(16)(Supp.2000); Fla.Stat.Ann. sec. 817.49 (1994), and the ability of the police to trace the identity of anonymous telephone informants may be a factor which lends reliability to what, years earlier, might have been considered unreliable anonymous tips."