Archive for the 'Fourth Amendment' Category

A Clever Ruse

As Scott Ealy drove down the interstate, a sign caught his eye: “Police Drug Checkpoint Ahead.”   Scott took a photo of the sign.

Such a checkpoint would be unlawful.  But what if the sign was just a ruse to get drivers to exit the interstate?

According to the Effingham Daily News (h/t: Scott Ealy), the checkpoint was a ruse:

Marion County Sheriff Jerry Devore said the sign warning motorists of a drug interdiction checkpoint ahead just before southbound traffic reached the the [sic] Kinmundy-Patoka exit — or milepost 127 — was only up for about 90 minutes before being taken down.

Devore admitted the sign was a ruse to get drug-possessing suspects off the interstate at an isolated exit with no services.

“Anyone from out of state would have no reason to pull off,” Devore said. Once off the interstate, deputies looked for Illinois Vehicle Code violations as a reason to initiate a traffic stop. Once the vehicles were stopped, deputies were able to look for drugs or other illegal items.

As described above, this ruse is probably OK.  (But, much is going to depend what happens after the stop.)

Why do I say this?  Consider the Eighth Circuit case of United States v. Carpenter.

In that case, the police set up a ruse checkpoint on the interstate and then looked for a reason to stop non-local vehicles that exited the interstate.  The defendant, who had out-of-state plates, exited the interstate.  When the defendant saw an officer following him, the defendant maneuvered to the side of the road in order to make a U-turn.  While on the side of the road, an officer stopped the defendant.  The defendant reportedly took the exit looking for a gas station, but there were not any gas stations at the exit.  The defendant appeared nervous, had a quarter tank of gas, and gave a travel route inconsistent with his car’s rental agreement.  The police brought a canine to the scene and the canine alerted to the presence of drugs in the defendant’s vehicle.  The police found and seized a quantity of cocaine.  Under the totality of these circumstances, the Court said, the police had reasonable suspicion for an investigative detention to let the canine sniff the vehicle and no Fourth Amendment violation existed.

With all that said, the police still can violate the Fourth Amendment while executing these ruses.  For example, if a car exits the interstate and travels in a normal manner without violating any traffic laws (and no other unusual circumstances exist), any stop of the car will be problematic.

Jeremy Richey

Exclusionary Rule Requires Police Misconduct

Case NamePeople v. McDonough (.pdf)

Court: Appellate Court of Illinois, Fourth District

Date Decision Filed: 10/20/09

In this case, the defendant’s car was parked on the slim shoulder of a dark and busy road.  A state trooper saw the car and approached it in order to see if the defendant needed help.  The trooper turned on his overhead emergency lights when he pulled up behind the car.  Ultimately, at the end of the encounter between the trooper and the defendant, the defendant was arrested for driving under the influence of alcohol.  The defendant filed a motion to suppress and the trial court granted it because the trooper detained the defendant without any legitimate basis — this happened when the trooper turned on his emergency lights.  Two out of three appellate-court justices overruled the trial court because there was no police misconduct, and where there is no police misconduct, the exclusionary rule does not apply.   According to these justices, the trooper’s use of his emergency lights “was entirely prudent and appropriate … [and] his failure to do so could very well be viewed as dangerous.”  The third justice agreed in the result of the first two, however, this justice wrote a special concurrence in order to emphasize that no fourth-amendment violation occurred at all because the trooper’s seizure of the defendant “was proper under the community-caretaking doctrine.”

Jeremy Richey

UPDATE (11/3/09):  John Wesley Hall, Jr. comments on this case here.

Gant Is About People

I greatly respect law professor Orin Kerr’s legal analysis. He’s one smart cookie. With that said, his post speculating on how the brand new SCOTUS case Arizona v. Gant (.pdf) “will apply in practice” made me smile. When Professor Kerr thinks about Gant, he thinks in terms of faceless facts and abstract principles. When I think about Gant, I think of the names of specific people — people that I currently represent — that this case can help. Law profs get to have fun in the law reviews and classrooms; I get to have fun in the courtroom. I’ll see you in the trenches.

Jeremy Richey

BUSTED: The Citizen’s Guide to Surviving Police Encounters

Jonathan Katz, a DC area criminal-defense lawyer and the author of the Underdog weblog, is encouraging others to spread the word about BUSTED: The Citizen’s Guide to Surviving Police Encounters. This is an instructional video produced by the Flex Your Rights Foundation. In the video, it teaches citizens how to respond to police encounters such as when a person is pulled over while driving. The film uses actors in situations similar to what people in the real world might find themselves in, so the film is fun to watch. With that said, there is a bit of a cheese factor with the video, however, the information in the video is good and the video is fun to watch despite a little cheesiness.

You can watch the film free by clicking here. You can also order it by clicking here.

No, You May Not Search My Car

Just like you shouldn’t talk to the police, you also shouldn’t let the police search your car. I don’t care if you are a Puritan’s Puritan, and the cop is the nicest man in the world: if the police ask for permission to search your car, your answer should be a polite “no.” Robert Guest has the details of how to properly handle the police when they want to search your car. Check it out. I left a comment on his post that you may want to check out as well.

Jeremy J. Richey, Attorney at Law
© Jeremy J. Richey and The East Central Illinois Criminal Law & DUI Weblog, 2008-2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.