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.]
Of course, had they actually arrested the guy before the search, the search wouldn’t have been any good. So the court had to figure out how to get him unarrested. Charming that you’re privacy is better protected when you’re under arrest than when you’re just a suspect. The wonder is that they ever arrest anyone.
In Ohio, a “movement to his right side” is called a “furtive gesture.” So is a movement to the left side. No need for the local constabulary to have to remember which is right and which is left.
Oh, the cops here in Connecticut are intimately familiar with “furtive gesture”. It’s certainly curious that “furtive gesture” wasn’t used here. Which is why I wonder what “a movement to his right side” means.
Was he adjusting his seat belt? Was he scratching himself?
Gideon: a few questions:
If the suspect here had chosen to evade the stop, would he be in a different position with respect to the admissibility of evidence or officer testimony?
Let’s pretend the answer is “Yes.” Would this mean it’s in the general interest of the public to *not* obey the Police, as to best preserve their (the people, not the cops) chance at prevailing in court?
Can a defense atty ask the court to set a bar as to what *would* constitute an “unreasonable” search/seizure/whateva?
How do you reconcile the idea of The Constitution with the reality that it only applies if you’ve got your seatbelt on?
re: “collective knowledge” – do prosecutors invoke this with a straight face?
Thank you.
I think he would be, for sure. He’d be in a far worse position. He’d have an extra charge!
In terms of the search issue, he’d probably have been arrested immediately, so they’d have to go get a warrant to search it.
I’m not sure if prosecutors employ the “collective knowledge” trick with a straight face, but cops and judges sure do.
And no, it’s never a good idea to evade police.
Ooops – this comment is just so I can subscribe to replies.
It means, I think, that he leaned to his right. Somebody doing this can be extending his left leg to retrieve a handgun from a left-side pocket, bring up a holstered handgun on the left side to make it accessible, stuff a baggie ‘o unlicensed pharmaceuticals into the pocket . . . or, of course, more ordinarily, reaching into the left-hand butt pocket for a wallet, anticipating a need to show a cop a drivers license.
The first couple are articulable reasons for suspicions (quick test: read them out loud); whether or not they’re reasonable is a matter of opinion, I guess.
As a side note, when I teach the “how to handle a police stop” stuff in my carry classes, I do cover the issue of not doing anything like that when stopped, for fear of making the cop nervous, which has a tendency to go less than particularly well for the subject of his or her attentions.
Leaning to his right is indicative of being dangerous or possessing a weapon? C’mon. When I get pulled over, I lean over into the passenger compartment, so I can get my insurance paperwork from the glovebox. By their reckoning, I’m hiding some AK-56s and a couple of landmines and whatnot in the car. I must be Osama frickin’ Bin Laden.
(btw, good to see you again)
(btw, it’s good to be visible).
I think the answer is: sure, given (what I, in my utterly inexpert opinion, understand to be) the standard of “reasonable and articulable suspicion” for a “protective search.” That, almost all the time, the movement to the right is utterly innocuous is, as I understand it, legally irrelevant — the question, as I understand it, is it is believed to happen often enough that it meets that very (arguably preposterously) low standard. That it does happen some of the time is pretty clearly the case, after all.
What I’m wondering, though, is if not moving at all — just sitting there with the hands on the wheel, waiting patiently — is also done often enough by somebody who has secreted an illegally possesed gun in, say, the glove compartment that it, too, meets that “reasonable and articulable suspicion” standard.
Sorta like: “If he runs away from the helicopter, he’s likely VC, so you can shoot him. If he stands his ground, he’s likely a well-trained VC, so you can shoot him.”
Of course, that couldn’t be. After all, were that so, all searches by police officers in a traffic stop would mean that the 4th Amendment never applies during a traffic stop and —
Oops.
But that’s the problem now, isn’t it? Almost anything is legally reasonable suspicion.
And if the officer decides he “smells alcohol”, neither does the 5th…..