Fourth Circuit hands down important Fourth Amendment case | Eastern North Carolina Now

    Publisher's Note: This article originally appeared in the Beaufort Observer.

   Helps protect our right to privacy and not being intimidated by police

    The Fourth Amendment to the U. S. Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

    The law on the Fourth Amendment's protection from unreasonable search and seizures is evolving. The Fourth Circuit Court of Appeals (which covers North Carolina) ruled last week on what may become a landmark case. But first some background.

    An Observer reporter was recently in Beaufort County District Court when a drug case was heard by one of our District Court judges. The Beaufort County Sheriff's department had charged a defendant with felony possession of marijuana. The Sheriff's Narcotics Officer had stopped a car and a search produced the pot from the trunk of the car. The deputy testified that he had stopped the car as it traveled on a one-way street and changed lanes without giving a signal.

    The defendant's attorney objected to the introduction of the pot because, he argued, that the deputy did not have probable cause and it was thus a "bad stop." The judge dismissed that, allowed the pot into evidence and then convicted the man of a misdemeanor.

    The case is legion. It is a common practice for officers to stop "certain" people for a minor offense and end up charging them with much more serious offenses. We are aware of another case in the Cape Hatteras National Park (Federal jurisdiction) in which an officer used the fact that a tourist had pulled off the side of the road to take pictures of the lighthouse and subsequently across the road to the opposite side to take picture of deer. That was the "probable cause" for stopping the driver. But after stopping the car the officer sought information that could have led to probable cause for a more intrusive search of the vehicle or people in the car or charges completely unrelated to the driving incident.

    The problem has gotten so bad in some places that officials are taking steps to curb the practice of "stop and switch." That is, stopping the car for one thing and then switching to something else which the officer would never have had probable cause were the initial stop not executed.

    In Fayetteville last week the City Council adopted a moratorium on "consent searches." Here's the rig-a-more-row on that variation: Officers stop "suspicious" vehicles or individuals and ask for consent to search the vehicle. If the search turns up an illegal substance they charge the person with that offense when they had no idea such a crime was being committed when the stop was first instituted.

    Typically, the opponents of such practices allege that it is often racial profiling. As one said to use recently, "do you think if the car stopped for changing lanes without signaling had been prominent white politician that the cop would have stopped him for not signaling a lane change?" Statistics in Fayetteville showed that 2/3 of the drivers stopped for consent searches were black.

    Consent searches are a rather unique issue. Typically, the reason they happen is because the officer did not have probable cause for the stop in the first place and thus any evidence could not be used against the victim of the search. But if consent is given the evidence can be used. One law enforcement official told us off the record that some rogue cops have the trick down to a science. They stop the car, often with considerable flourish (lights, siren and often with weapon drawn or ready). They then ask accusatory questions such as "do you know why I stopped you?" Often victims will reveal more than the officer already knew. A series of "innocent" questions will then be followed by or interspersed with incriminating questions, such as "have you been drinking?" or "are you on drugs?" or "do you have any weapons?" A favorite tools of rogue cops is to institute a "Terry" stop and frisk.

    In the Terry Stop the officer typically orders the person out of the car, makes them spread their legs and often lean against the car. He/she then pats them down, often all the time asking questions. We are told that the intent is two-fold, to get the victim to reveal something the officer would have no other way of knowing or to put an innocent person on the defensive before the Big One is dropped: "do you mind if we look in your trunk?" Our source told us that few people refuse, even when they know there is contraband in the car or on them. There is something intimidating about the blue lights, siren, gun, bright lights, Taser, pepper spray, the pat-down and even the uniform when a person is subjected to rapid fire questions that they must answer without benefit of careful thought.

    One defense attorney told us: "never, ever consent to any kind of search without a search warrant; even if it means that you will be detained until a warrant can be secured."

    The reason for this is that to obtain a search warrant the officer must provide the magistrate with enough evidence to establish that it is reasonable to believe that the person has or is committing a particular crime. (That will become important in a minute). The reason a warrant is important is that it will contain the evidence supporting the probable cause. And that may become very important at trial.

    Sometimes, the real reason the car is stopped in the first place is actually to allow a dog to sniff the outside of the vehicle. Then if the dog "alerts" to contraband a consent search is requested or a search warrant obtain, based on the dog's reactions. The Fourth Circuit decision last week appears to make such stops, searches and seizures, illegal.

    A person in our office says: "I would have no problem allowing a search, if I knew I did not have anything to hide." To which another colleague said: "Yea, but you've never had a disgruntled ex-spouse try to set you up either, have you?"

    The courts appear to be headed in the direction of reigning in some of these unscrupulous law enforcement practices.

    We recently published an article on a recent Supreme Court decision that ruled that the government must obtain a search warrant before placing a GPS tracking device on a defendant's vehicle.

    And last week the Fourth Circuit handed down a decision in the case of U.S. v. Gaines, No. 11-4032. In that case police stopped a vehicle ostensibly because it had a "cracked windshield." Two women were in the front seat and a male was in the back seat. Police testified that when they pulled the car over they noticed the male making "unusual moves" which were described as reaching across the front seat and into his clothing. They ordered him out of the car and patted him down. The officer testified that he felt what he thought was a pistol in his waist band. The defendant jabbed his elbow into the officer's face and tried to run. He was apprehended and in a struggle was stuffed into the trunk of the car. As he went into the trunk a pistol fell out of his clothing. He was subsequently charged with possession of a weapon by a convicted felon. All three occupants of the vehicle were black and the stop took place in a black section of Baltimore. The trial court ruled the stop was legal and found the defendant guilty of possession of a weapon by a felon.

    The Court of Appeals reversed. The higher court ruled that it was an illegal stop because there was no way the officer who testified that he saw a cracked windshield could have done so before the stop because of the circumstances of incident.

    The significance of the case is that the Fourth Circuit said that the discovery of the pistol was tainted by the bad stop and the subsequent assault on the officer was not sufficiently attenuated by the original reason to stop the car. In plain language, the court held that the gun was found before the defendant did anything wrong (assault, resist etc.) Likewise, under the reasoning of the court, had the defendant been charged with resisting arrest/obstructing an officer etc. that would also have been tainted by the original illegal stop also.

    It should be noted, for the experts here, that the Court cited and distinguished Terry v. Ohio, 392 U. S. 1 (1968). Terry was the case in which the Supreme Court upheld the right of an officer who has reasonable suspicion that the evidence of the circumstance that indicates an imminent danger to the officer or others can briefly frisk a suspect to be sure he is not armed. Gaines further refines and restricts Terry.

    Gaines was later tried and convicted in state court for assault on an officer.

    The Government has not yet announced whether it will appeal to the Supreme Court.

    Click here to download the case.

    Commentary

    For over 400 years both American and English law has held that the government has no right to go on a fishing expedition to see if they can find something with which they can charge a citizen with a crime. Rather, the law has evolved to hold that citizens have a reasonable expectation of privacy in their "persons, houses, papers, and effects" against unreasonable searches and seizures. Reasonable has grown to mean that the officer must have probable cause to believe a particular crime is, has been or will be committed, not just some unsubstantiated hunch, and certainly not an unfounded "we'll just see what we can find" approach. Gaines is an important link in that chain, particularly because it draws tighter restrictions on the Terry "stop and frisk" standard.

    We think this is good. Law enforcement officials should never stop a citizen and either search or seize their property unless they have a good, sound reason, based on actual evidence, to do so. Any reporter who has covered local criminal courts for any length of time has seen cases of abuse of authority by law enforcement officials. Stopping someone for a cracked windshield is fine. But give the person a ticket for improper equipment and be done with it. But we don't think a vehicle should ever be stopped for failing to give a turn signal unless that action demonstrably creates a safety hazard, such as running another car off the road or causes them to have to take serious evasive action. And we would include a tourist, taking pictures in a national park, who may pull off the road to do so. If the action caused a demonstrable traffic safety problem, so be it. But not simply because the driver pulled off the road and stopped. So "give'em a ticket (warning or citation) and be done with it..."

    Rogue cops are bad news. They hurt the honest law enforcement officers and they damage the public's respect for law enforcement and even government in general. People who have experienced this know that a "Big Shot" would not have been subjected to the same kind of abuse as a young black male stopped in a predominately black section of town, or an attractive female who is stopped and quizzed about where she's been or where she's going. In fact, we would suggest that officers be required to tell the person stopped why they were stopped and that this be the first thing that is said by the officer.

    Moreover, we believe significant restrictions should be imposed on "seizures." Specifically, the hand cuffing and detention of citizens, even in a vehicle, should require a heighten level of probable cause that the person presents a substantial and imminent danger without being seized. And we think good law enforcement management should mandate that pat-down searches of the opposite sex should be avoided without extraordinary probable cause.

    And finally, if for no other reason than to discourage rogue cops, we would remind everyone that they should never, ever consent to a search of any kind without a warrant. If you value your rights, don't given them away.