A Bad Day for the 4th Amendment

Any criminal defense lawyer will tell you that most days are bad for the 4th Amendment. We see bad law, bad rulings and an overall erosion of your right not to be searched and seized without probable cause every day.

So when the Illinois Supreme Court comes along and whittles a little more of it away, it’s not a surprise.

People v. Cosby is a consolidation of two cases, Cosby and People v. Mendoza. Both of these cases involve traffic stops and prolonged detentions.

Generally speaking, you cannot be held by a police officer without either reasonable suspicion or probable cause of you having done something wrong. During a traffic stop, the police officer has usually seen you do something wrong to justify the stop (I say usually because although the police ALWAYS say they saw you break a traffic law, we all know this is sometimes a convenient fiction). Therefore, the stop is justified and the duration, purpose and intrusion of the stop is justified by the criminal act observed.

So let’s say you break a traffic law, and you’re not waving a gun or a baby out a moving car window. That traffic law is usually a misdemeanor or even solely a citation, so the detention and purpose of the stop is governed by the seriousness of your actions. i.e. the police CANNOT search your car because you fail to signal. There’s no reason for the police to believe there are drugs or guns in a car because you are a poor driver.

But this is all a sham. The police, once they approach your car and look at you and your passengers, can now try to figure out a way to get inside and poke around. Here’s how they do it. They decide you look high, bloodshot eyes, shifty maneuvers in the car, fumbling with your license or insurance, the odor of marijuana, a gang affiliation sign of some kind (in Mendoza the police officers said that a red bandana hanging from the rearview mirror was a sign of gang affiliation). Whatever it takes for them to come up with “articulable” suspicions, or even better probable cause. Of course, probable cause would be direct information that a crime had been committed, which would be like seeing a gun, or a bag of weed itself.

However, let’s say the police don’t see any other criminal activity and could not justify entering your vehicle. This leaves them with one last option. Asking you.

You’d be amazed (if you’re a lawyer reading this, you are not) at how many people, with drugs / guns / dead hookers in the trunk consent to a search. And the reason they consent is the very reason the ruling in a case like Cosby is so difficult to deal with as an attorney. People consent to searches of their car when they should know better…because they don’t know better. They don’t realize that when an officer ASKS you, you get to say no. The reason people consent is because they don’t actually think that they are being ASKED they are being ORDERED.

In the case at hand, both Cosby and Mendoza were stopped for traffic citations. The officers returned paper work to the drivers then asked to search their cars. The court ruled that at this point the drivers were “stopped” again. The question was, was this one long stop, or two separate stops, one for the traffic citation, and another, separate stop, that was essentially a consensual search. Both Cosby and Mendoza agreed to let the police search their cars, turning up some crack and a gun respectively.

The court held, in a 4-3 split with some strong dissents, that the second “asking” of the drivers to search their cars were not a “seizure” within the 4th Amendment. The long and short of it, is that these drivers were free to leave and when asked if the officers could have searched the car, could have said no and been on their merry way.

No way. No way in hell did these drivers understand that, know that, or could have done that. The standard by which the law considers you, the average person, to be “seized” by the cops, is when you do not feel free to leave. Certain things the cops do make you not feel free to leave. Guns are drawn, a whole lot of them surround your car, their emergency lights and sirens are on, you are ordered to place your hands on the wheel…things like that.

What the llinois Supreme Court seems to be doing (while denying that it is doing it in the same breath) is applying the Mendenhall standards as a rigid formula for seizure. United States v. Mendenhall, 446 U.S. 544 (1980) is a Supreme Court case laying out the general parameters of when a person is “seized.” Illinois Supreme Courts have been pretty much in lockstep with U.S. Supreme Court (much to the dismay of defense lawyers) for years. Mendenhall lists factors such as 1) the threatening presence of several police officers, 2) the presence of a drawn weapon, 3) language and tone of voice that suggests compliance is necessary and / or 4) touching of a person. Mendenhall goes on to state that this is not an exhaustive list of factors regarding whether you are seized…suggesting, obviously, that other factors come into play.

Here, in each stop, there were only two officers, no touching, and depending on whom you believe, little forceful language. In the Mendoza case one officer admitted to drawing his gun, but not “displaying it” to the driver. This is unbelievable on its face.

The defense, in both cases, argued, however, that the two police officers “flanked” the vehicles in question, at night, and asked for permission to search immediately. The defense’s position is that these people in these cars simply did not feel free to leave, and the searches should have been pursuant to the safeguards of the 4th Amendment. In other words, don’t let the police get away with a fishing expedition.

The Illinois Supreme Court disagreed. The State argued, successfully, that the stop was not prolonged. Obviously as a practitioner, prolong that stop as long as possible. Get the facts out as to how long the whole thing took. In Cosby the testimony was that the officer immediately asked for permission to search and was granted it. Get this stop to take forever, and you’ve got a better motion to suppress.

The dissent states it plainly…for it is plain. Cosby could not possibly have felt free to leave. The Illinois Supreme Court rigidly applied the Mendenhall standards, while claiming it was not. Instead of looking at the totality of the circumstances, the court just felt that once the officer handed Cosby his proof of insurance back, his stop was over, and that immediately afterwards, Cosby could have just driven off.

Not in this lifetime he wouldn’t.

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6 responses to “A Bad Day for the 4th Amendment

  1. this is hit home a little. back in 1991 after i kicked my exhusbands butt he was out for me to get a bad conduct discharge from the army. at one point we had went to jag to sign papers for the divorce. when we came out he said he had to run into the mp station for something and to wait for him in the car. well it took awhile and i got out to take the bus back to the barracks (we were in germany at the time) next thing i knew he was coming out of the mp station yelling at this undercover cop to search my handbag. i told the cop no. at the time i was scared and wondered if i was going to be thrown in jail. but i stood my ground when he asked repeatly if he could search it. my ex was shocked that he didnt have the right to stop and search me. all they were looking for was a picture of me and my current boyfriend smiling together so they could make my adultry charge stick too. thanks for the advice. hopefully i am never in a situtation like that again.

  2. This is, I’m sure, why the Flex Your Rights folks advise people to try to dismiss themselves by asking, “Am I free to go now?” Unless you get a straight “no,” you’re probably free to go.

    On the other hand, when a cop stops you and ASKS you for your license and proof of insurance, isn’t he really ORDERING you? Nothing is ever easy.

  3. Windy –

    You’re absolutely correct. The magic words, “Am I free to go?” is usually answered with a yes…but then a lot of my clients STILL say yes to a search…again, because they’re not sure of their rights, or afraid.

  4. sorry if i sound a little getto here. but, hexx no would i consent to a search. and if i ever am in that spot to ask am i free to go then i most centenly will. plus i will teach my teenager those magic words too. you never know. better to be prepard then searched.

  5. Pingback: Criminal Law Blawg Crawl « 26th St. Bar Association

  6. HI, my name is Peter Bernstein. Currently, there is a case in the Illinois system with my name on it. You want crappy news, how about the appelate court reversing my conviction, then having the supreme court do this. The officer didn’t ask me to consent, he asked for a “quick-look”. If I give you a “quick-look”, am I searching you??? Ask the Illinois supreme court

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