Pretextual trespass

In an effort to combat drug crime in “minority high crime neighborhoods”, police long ago adopted the “pretextual stop”, which was later condoned by SCOTUS in Whren. In Whren, Scalia wrote:

Not only have we never held, outside the context of inventory search or administrative inspection (discussed above), that an officer’s motive invalidates objectively justifiable behavior under the Fourth Amendment; but we have repeatedly held and asserted the contrary. In United States v. Villamonte-Marquez, 462 U. S. 579, 584, n. 3 (1983), we held that an otherwise valid warrantless boarding of a vessel by customs officials was not rendered invalid “because the customs officers were accompanied by a Louisiana state policeman, and were following an informant’s tip that a vessel in the ship channel was thought to be carrying marihuana.” We flatly dismissed the idea that an ulterior motive might serve to strip the agents of their legal justification. In United States v. Robinson, 414 U. S. 218 (1973), we held that a traffic-violation arrest (of the sort here) would not be rendered invalid by the fact that it was “a mere pretext for a narcotics search,” id., at 221, n. 1; and that a lawful postarrest search of the person would not be rendered invalid by the fact that it was not motivated by the officer-safety concern that justifies such searches, see id., at 236. See also Gustafson v. Florida, 414 U. S. 260, 266 (1973). And in Scott v. United States, 436 U. S. 128, 138 (1978), in rejecting the contention that wiretap evidence was subject to exclusion because the agents conducting the tap had failed to make any effort to comply with the statutory requirement that unauthorized acquisitions be minimized, we said that “[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional.” We described Robinson as having established that “the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.” 436 U. S., at 136, 138.

While the pretextual stop is almost exclusively thought of in the motor vehicle context (what with it being a stop and all…), I recently came across the use of a pretext to police drug activity in the non motor vehicle area. [A Lexis search for trespass and Whren and trespass and pretext yielded no meaningful results. Yes, I am that much of a nerd.]

Apparently, police departments in some parts of the state have taken to entering into “criminal trespass agreements” (or some such variation: the public defender I got this from wasn’t entirely clear so blame him, not me). What this essentially means is this: the property owner will enter into a contract with the police department, giving them permission to enforce the criminal trespass statutes. The property owner then provides the police department with a list of the properties and the names of all the residents in those locations. There may or may not be signs to that effect posted on the property.

The police then drive by locations in the city. When they see vagrant youths loitering on property, they’ll do a check to see if there’s a trespassing agreement. If there is, they walk up to the up-to-no-gooders and ask them if they reside there. If they don’t, they’re arrested and searched and you get the picture.

What this “agreement” also does, is gives the police license to actually approach the yewts on private property and essentially demand to know what they’re doing. Anything in plain sight, is of course, in plain sight. Absent such agreements, I’m pretty sure they’d have no basis, reasonable or articulable or otherwise, to simply ask fresh-faced young men what they’re doing on private property.

Yes, trespassing is a crime, albeit only a misdemeanor, and yes by being on someone else’s property without permission, they’re trespassing. But it gets rather tricky if you think about it for a second. How is the officer to know whether the yewt is actually trespassing or merely visiting someone who lawfully resides in the building? What if he’s a guest of a resident or is a new resident? In fact, the officer cannot even determine whether the loiterer is a resident on the list already with the police department, until he approaches the vagrant and asks him who he is and whether he lives there.

Too often, by that time, the officer has already locked onto the “suspect” and well, the cat’s out of the bag.

Is there any legal challenge to bypass of the Fourth Amendment? I’m not sure. But it does bother me a bit and maybe you as well.

Yutes, yewts, youths’