Drive away. I dare you.
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Let’s try a little game. I will give you the opening lines of a recent Connecticut Supreme Court decision [pdf] and you tell me (you can do this silently, sitting at your computer) what the outcome is. Ready?
The sole issue in this appeal is whether the Appellate Court properly concluded that the defendant, David Burroughs, was seized within the meaning of article first, §§ 71 and 9,2 of the Connecticut constitution when two uniformed, armed police officers exited their patrol car and approached his vehicle. The state appeals from the Appellate Court’s judgment, claiming that that court improperly reversed the trial court’s determination that the conduct of the officers did not amount to an unconstitutional seizure of the defendant. The state specifically argues that such conduct would not have caused a reasonable person in the defendant’s position to believe that he was not free to leave.
So. Raise your hands if you think the Appellate Court was wrong. Okay. You - the only one with the raised hand, there’s a job waiting for you at the State’s Attorney’s Office of Delusion.
The Court, naturally, finds that the Appellate Court was incorrect and that when two cops approach a stationary car - one from either side - a reasonable individual in that position would feel free to leave.
The car was parked in front of a private residence. At the time the cops got out of their police cruiser and began to approach the vehicle, there was no criminal activity and they had no R & AS. It was only when the approached an open window did they “smell” marijuana and the dance began. So it was essential to determine whether the defendant was “seized” when the cops began to approach his car.
The Court agreed with the State that there was “an insufficient show of authority” before the cops smelled the marijuana to constitute a seizure.
So, in essence, you’re free to go. Try it next time. I dare you.
This argument endorsed by the Court and proposed by the State is also rather troublesome. Consider the knowledgeable defendant who reads the Court’s decision and now knows that he is free to leave when cops approach his car. What is the natural reaction of “a reasonable person”? Drive away. This will lead to several things: cops and prosecutors putting forth the rather (dis)ingenuous argument that the act of driving away was sufficient to create reasonable suspicion and prosecutors relentlessly arguing consciousness of guilt. Of course, we can always argue that the defendant was merely exercising his Constitutional right to drive away, but that and a dollar will get you 50 cents.
Hidden in this reasoning is the disturbing notion of “if you’ve done nothing wrong, you’ve got no reason to run”, implying that anyone who drives off when a cop approaches has something to hide. Will that be enough, in future cases, to establish reasonable suspicion?
Officer: “Well, Mr. Prosecutor, when I approached the car, I was just trying to determine if the man needed help. But as soon as I started to approach, he put his car in gear and took off. In my training and experience, only criminals drive away from the police and based on my years in the force, I knew criminal activity was afoot. Why else would he drive away?”
The Court: “I find probable cause”.
The Supreme Court: “Affirmed”.
Someone please try this. I’m not brave enough.
After all that, we have a poll. Imagine you are legally parked by the side of a road. A police cruiser parks behind you and the officer disembarks and starts walking toward your vehicle. At that point, would you feel free to drive away?
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I think another hidden component to the courts reasoning is that these judges don’t think this decision would ever affect them. Cops just don’t walk up to the doors of nice cars driven by respectable judges in good neighborhoods. Their idea of what it’s like dealing with cops is very different from the reality the rest of us know.
Well, I thought about that, but I wanted to stay away from the “ivory tower” meme this time around.
Of course, there is the underlying current of “it won’t happen to innocent folk” in every 4th amendment (even any criminal law) decision.
I know it’s predictable, but in every 4th Amendment case I’ve ever argued, the only way I came close to winning was to get a judge to think, “Wait, _I_ could be stopped if I approve thie one.” I think your current and mine are just part of the same thing. Cops only stop the people who really are up to something (and if they happen to stumble upon an innocent person, well they just smile and let you go on your way in no time at all). That must be true because every case they see involves the cops finding something.
It’s true and it’s disappointing, really.
Where I’m at, driving off after a cop starts to approach your car could end up being the last thing you do on earth. As could attempting to exit your car after they start to approach the car. Totally innocent people have died in my state for doing something other than “acting seized” when the police approach.
In theory, one may have a right to simply walk away…in reality, you bes freeze & pray all goes well.
Exactly.
Getting out of the car is very likely to make the officer(s) nervous — traffic stops are a leading incident for officer death/injury, so they are as nervous as you are. Driving away isn’t just going to get an officer upset, I expect.
And don’t forget that if the cop gets too close to your car before you drive away, you’re going to be charged with trying to run him over.
Roger That Windy!
Your poll doesn’t have the “hell, no” choice, which I would have selected.
In these situations, there is an inherent assault and an implied threat of battery, possibly causing grievous injury or death. If the cop is holding his gun it adds “with a deadly weapon” to the above. And all of course also come with “under color of authority”.
i agree with lil spicy…there is no way i would drive away from the cop. around my neighborhood they come up with weapons drawn just to give a “speeding” ticket. that is the excuss they used to stop you. personally i would rather have my hands where they can see you and my car turned off and radio off and window down. hell now would i ever drive off or do anything without being asked. infact i wont even admit to speeding…….lol
I had a judge here in Houston deny a motion to suppress when my client was in his car with another person (an employee) in a gas station parking lot - during operating hours - and the police came up behind the car (there was an 18-wheeler parked in front of them), got out and approached.
The cops’ explanation was they were on an anti-auto theft detail and this car sitting in a parking lot was suspicious.
The judge ruled that (1) there was no seizure and (2) the cops had reasonable suspicion to detain him anyway.
I think the rule is there is no 4th amendment protection if you’re black and have drugs in your possession.
Paul B. Kennedy
Attorney at Law
http://www.kennedy-law.biz
I’m always curious how different judges explain the factual dinstinction between being seized and being detained. Since “reasonably detained” people aren’t free to leave, are they not seized? And if they are seized, what difference does the mental operation of the officer make in the person’s understanding of his rights?
4th Amendment discussions are always such fun.
I know I’m a crackpot, but I still say that what a reasonable person would believe in this situation is a question of fact, not law, and should be submitted to a jury of some kind, not left to a judge. Just try to convince ordinary people that they should know they’re free to drive away.
Paul,
There is a running joke here in my office that “being black or Hispanic is probable cause for something.” If the cops didn’t have it at the time they made the arrest, they’ll figure it out by the time they hit the stand….often with the aid of the prosecutor.
Windy,
I agree with you on that. An I also feel that what a “reasonable person” would believe, think or feel, changes over time and varies depending on the race of the person in question. It’s not a static concept.
I see lots of blacks & Hispanics standing on street corners and when the cops roll up, they ALL scatter like roaches….nobody wants to be subject to a random, bullshit pat down or beat down whether innocent or guilty. So they ALL run.
I’ve yet to see white kids standing on a corner in their neighborhood do the same thing.
The cops are allowed to “profile” based upon race and they do. They disguise it as some sort of superpower based upon “training & experience.” It’s all discriminatory and has a disparate impact upon minorities. So in my mind, the “reasonable man” standard isn’t cut & dry and never will be.