Daily Archives: April 26, 2010

All drivers are dangerous and the police are the Borg

Consider the facts:

On April 1, 2006, Officers Craig Miller, David Rivera and Charles Gargano of the New Haven police department were patrolling the Fair Haven  neighborhood as part of their duties with that city’s drug interdiction unit. The neighborhood was known for frequent drug trafficking activity. The  officers  were in an unmarked patrol car, operated by Rivera. At approximately 5:15 p.m., the officers observed a Chevrolet Impala turn right from Ferry Street onto Grand Street without signaling. The officers followed the Impala around the block, during which time they also observed that the  defendant, who was operating the car, was not wearing a seat belt. Pursuant to police department policy, the officers called dispatch to request a  marked cruiser in order to effectuate a motor vehicle violation stop.

Three marked patrol cars responded to the dispatch call, and stopped the Impala at the corner of Ferry Street and Grand Street. The unmarked  patrol car stopped approximately one half of a car length behind the Impala. While still in their unmarked patrol car, Rivera, Miller and Gargano  observed the defendant make a movement toward his right side, which led them to believe that the defendant might be concealing a weapon. The  three officers then approached the Impala. As they were approaching, Miller observed the defendant close the center console in the front seat.

Rivera removed the defendant from the vehicle, handcuffed him, and frisked him for weapons. While frisking the defendant for weapons, Rivera  discovered $1369 in cash and several cell phones on his person. At the same time, Miller and Gargano, as well as several officers from the other  patrol cars, removed the two passengers from the vehicle, handcuffed them, and frisked them for weapons. Miller then returned to the car and  observed some plastic protruding from the center console. He opened the console and removed plastic bags that he believed to contain crack  cocaine. The officers also determined that the Impala was owned by a rental car company. Subsequent testing revealed that the bags discovered in  the console contained approximately 21.5 grams of freebase cocaine, commonly referred to as crack cocaine.

So, let’s recap, in normalspeak: officers were in a “minority high crime neighborhood”, looking for an excuse to pull someone over. They saw the defendant commit a motor vehicle violation. They pulled the car over and saw the defendant “make a movement toward his right side” (whatever the hell that means) and decide not only that he was armed, but because he was in a “MHCN”, he was dangerous and probably selling drugs. They handcuffed everybody and searched them and the car with impunity. We now contort ourselves to affirm this stream of clearly illegal activity by the police.

The defendant filed a motion to suppress relying on Arizona v. Gant, which holds that once you have arrested the occupants of the vehicle, there is no more legitimate “officer safety concern”, so a warrant must be obtained.

The Court rejects (emphatically!) the defendants contention that Gant applies since the defendant wasn’t technically arrested until after the drugs were discovered and instead agrees with the State that the “protective search” rubric of Michigan v. Long must control. In Long, the Supreme Court said that the:

purpose of protective searches to be the concern that if the suspect is not placed under arrest, he will be permitted to . . . [go free], and he will then  have access to any weapons

and thus, when analyzing a warrantless search under Long:

our focus is on whether the officers had a reasonable and articulable suspicion to believe that the defendant posed a danger and might access the  vehicle to gain control of a weapon.

Well, clearly, since the defendant wasn’t actually arrested and merely in a state of “custodial arrest (maybe)”, the question then becomes whether the officers had a reasonable and articulable suspicion that he posed a danger and that there was a weapon in the vehicle.

Remember now, that this was in a “minority high crime neighborhood” and that all three officers saw a “movement to his right side” and one saw him “close the center console”. That same officer then innocently “returned to the car” and saw “some plastic protruding” from that very same center console.

But that’s not enough, is it? Surely even the CT Supreme Court would not hold that that is sufficient to conduct a warrantless search of a motor vehicle? Of course not. Which is why we have the “collective knowledge of law enforcement” exception to the Fourth Amendment.

In conducting this analysis, we are cognizant of ‘‘the well settled principle that, in testing the amount of evidence that supports probable cause, it  is not the personal knowledge of the arresting officer, but the collective knowledge of the law enforcement organization at the time of the  arrest that must be considered. See Poulos v. Pfizer, Inc., 244 Conn. 598, 619 (1998) (McDonald, J., concurring) (Fourth  amendment law recognizes that the collective knowledge of the police determines probable cause. See Whiteley v. Warden, 401 U.S. 560, 568 [1971]; see 2 W. LaFave, Search and Seizure [3d Ed. 1996] § 3.5 [b], p. 259 n.46.); State v. Acquin, 187 Conn.  647, 657 (1982) (when we test the quantum of [evidence supporting] probable cause, it is not the personal knowledge of the  arresting officer but the collective knowledge of the law enforcement organization at the time of the arrest which must be considered)’’

Justice Who?

Miller and Rivera saw the defendant “make a movement to his right side”, Miller saw the defendant close the center console, Rivera frisked the defendant and pulled out a gun-like cell phone and cash, and Miller saw the plastic in the console. Of course, they all knew that it was a minority high crime area. And there was testimony that Miller and Rivera shared their observations and findings with one another. Wait, there wasn’t? Oh nevermind. Their knowledge is imputed onto one another.

In fact, applying Whiteley, why stop there? What if Rivera wasn’t on the scene and hadn’t discovered the call signs of drug activity: cell phones and cash? Wherever he was, he must’ve known that those items indicate drug activity. And Officer Krupke, on his beat at the other end of town surely knows that anyone who has cell phones and cash is an armed and dangerous drug dealer! So, of course, the officer at the scene had articulable and reasonable suspicion to search the vehicle. And look, they don’t even have to arrest anyone! Wheee!!!

Because anyone in the police department anywhere is cognizant of the fact that if you’re driving in a minority high crime neighborhood without a seatbelt and you make a movement to your right side and close the center console and happen to have cash and a cell phone, you must be an armed and dangerous drug kingpin. It’s in their – and your – DNA.

Welcome to the 24th Century, where the police are the Borg. The Fourth Amendment will be assimilated. Resistance is futile. Don’t drive.

[A plea: if anyone figures out what "movement to his right side" means, please leave a comment. I have no fucking clue. Kthxbai.]