The Rights of the People (57 page)

  
1.
Terry v. Ohio
, 392 U.S. 1 (1968).

  
2.
In
Terry
, Chief Justice Earl Warren used the term “reasonable grounds,” while “reasonable suspicion” was used by Justice William O. Douglas in his dissent. Writing for the Court in later cases, including
United States v. Sokolow
, 490 U.S. 1 (1989) and
Illinois v. Wardlow
, 528 U.S. 119 (2000), Chief Justice William H. Rehnquist used “reasonable suspicion,” which has become the accepted phrase. If there is reasonable suspicion that someone has committed or is about to commit a crime, a stop is permitted. Something more is required for a frisk: reasonable suspicion that he is armed.

  
3.
United States v. Sokolow
, 490 U.S. 1 (1989).

  
4.
Illinois v. Gates
, 462 U.S. 213 (1983).

  
5.
United States v. Sokolow
, 490 U.S. 1 (1989).

  
6.
Richard A. Hobson and Charles E. Collins, Jr.,
Identifying Characteristics of the Armed Gunman
, Metropolitan (D.C.) Police Department, Patrol Services Division, Apr. 3, 1995.

  
7.
United States v. Askew
, 04-3092, D.C. Circuit, Apr. 6, 2007, reversed by
United States v. Askew
,, 04-3092, D.C. Circuit en banc, June 20, 2008. Kavanaugh and Sentelle were two of an original panel of three. To justify their novel interpretation, Kavanaugh and Sentelle seized on an aside in
Hayes v. Florida
, 470 U.S. 811 (1985), although it found for the defendant and involved no
Terry
stop. Without an arrest warrant, police went to the home of a suspect in a burglary and rape to take him to be fingerprinted at the station house. When he refused to go, and an officer offered the alternative of arrest, the suspect accompanied them, was fingerprinted, and was then arrested. The Court found that without probable cause for the investigative detention, the fingerprinting violated the Fourth Amendment. The majority hedged by adding that “none of the foregoing implies that a brief detention in the field for the purpose of fingerprinting, where there is only reasonable suspicion not amounting to probable cause, is necessarily impermissible under the Fourth Amendment.” Although the Court was leaving the question open, Kavanaugh and Sentelle jumped to this conclusion: “The
Hayes
Court endorsed the
investigative
step of on-the-scene fingerprinting.” The D.C. Circuit then decided to hear the appeal en banc, which means that the entire membership of the court, beyond the original three-member panel, considers the case. Interestingly, the majority of the D.C. Circuit that overruled Kavanaugh and Sentelle included a strong conservative, Janice Rogers Brown, who has followed a libertarian streak—rather than precedent—in restricting police searches.

  
8.
Chimel v. California
, 395 U.S. 752 (1969). The opinion overruled
Harris v. United States
, 331 U.S. 145 (1947) and
United States v. Rabinowitz
, 339 U.S. 56 (1950), which permitted the police to search an entire apartment and an entire office without a warrant but incident to an arrest.
Chimel
imposed the restriction that only what police saw “in plain view” could be seized without a search warrant. See also O’Brien,
Constitutional Law and Politics
, Vol. 2, pp. 839–40.

  
9.
Minnesota v. Dickerson
, 508 U.S. 366 (1993) established the “plain feel” exception only if the object is immediately identified during a pat-down as “nonthreatening contraband.” The Court suppressed the evidence in this case, however, because the officer, having determined that there was no weapon in Dickerson’s jacket, did not identify a lump as cocaine until he had squeezed and manipulated it, which the Court decided had taken the search beyond the check for a gun that justified the
Terry
stop. See also
Michigan v. Long
, 463 U.S. 1032, at 1049 (1983).

10.
Illinois v. Wardlow
, 528 U.S. 119 (2000).

11.
As formulated in
United States v. Cortez
, 449 U.S. 411 (1981) and then in
United States v. Sokolow
, 490 U.S. 1, 109 (1989).

12.
District of Columbia Official Code, DC ST § 50-2207.02.

13.
United States v. Richard Spinner, Jr.
, 05-3160 (D.C. Cir. 2007).

14.
FBI Uniform Crime Reports: Law Enforcement Officers Killed and Assaulted, 2009, Table 19,
http://www.fbi.gov/ucr/killed/2009/data/table_19.html
.

15.
Concurring opinion in
Minnesota v. Dickerson
, 508 U.S. 366 (1993).

16.
District of Columbia v. Heller
, 07-290 (2008). Washington, D.C., had the strictest gun law in the country, a virtual ban on private handguns everywhere. The statute was challenged by an auxiliary policeman who guarded the federal courthouse and wanted a license to keep a gun at home. The Court also struck down the D.C. law requiring any licensed gun at home to be disassembled or disabled with a trigger lock, reasoning that such restrictions would make the weapon unusable for self-defense. The ruling applied the Second Amendment only to the federal government, which essentially governs D.C., and did not yet incorporate state law into its protection. That incorporation, citing the due-process clause of the Fourteenth Amendment, came in a 2010 Supreme Court ruling that struck down laws in Chicago and Oak Park, Illinois, against keeping handguns at home. The opinion repeated the qualifiers used in
Heller
, noting that the right to gun ownership in the home did not erase local governments’ powers to restrict the sale and possession of firearms to certain people or in certain locations.
McDonald et al v. City of Chicago, Illinois, et al
, 08-1521 (2010). Majority opinion by Samuel Alito. In Congress, conservative Democrats and Republicans proposed eliminating most gun control in the District as a condition of awarding D.C. a voting Representative in the House, a Faustian bargain vigorously opposed by D.C. officials and liberals in Congress in the spring of 2010. For the time being, D.C. kept its gun control and lost its chance for voting representation in the House.

17.
Morning Edition
, National Public Radio, Oct. 21, 2007.

18.
Based on interviews with 63,943 U.S. residents. Of those stopped for traffic-light or stop-sign violations, 56.8 percent of blacks and 77 percent of whites thought the stop was justified, and for a vehicle defect, the legitimacy rate was 66.5 percent of blacks and 90.5 percent of whites. The percentage of searches done with the consent of the driver was 57.6. “Contacts Between Police and the Public, 2005,” Bureau of Justice Statistics, Apr. 2007,
http://www.ojp.usdoj.gov/bjs/pub/pdf/cpp05.pdf
.

19.
Carroll v. United States
, 267 U.S. 132 (1925), opinion by Chief Justice William Howard Taft. In
Chambers v. Maroney
, 399 U.S. 42 (1970), the Court extended the warrantless search to cars that were impounded, reasoning that if the police
could search immediately without a warrant, they could also do so once they got the vehicle to a station house.

20.
Alabama v. White
, 496 U.S. 325 (1990).

21.
Delaware v. Prouse
, 440 U.S. 648 (1979).

22.
See
Whren v. United States
, 517 U.S. 806 (1996), decided unanimously, for a comprehensive discussion of this line of cases.

23.
Michigan Dept. of State Police v. Sitz
, 496 U.S. 444 (1990).

24.
United States v. Martinez-Fuerte
, 428 U.S. 543 (1976).

25.
Delaware v. Prouse
, 440 U.S. 648 (1979). The Court excluded marijuana as evidence from a vehicle chosen randomly for a stop, but White, for the majority, went out of his way to suggest roadblocks as an alternative, stating, “At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.” This brought a sardonic dissent from Rehnquist, who thought random stops were acceptable: “Because motorists, apparently like sheep, are much less likely to be ‘frightened’ or ‘annoyed’ when stopped en masse, a highway patrolman needs neither probable cause nor articulable suspicion to stop all motorists on a particular thoroughfare, but he cannot without articulable suspicion stop less than all motorists. The Court thus elevates the adage ‘misery loves company’ to a novel role in Fourth Amendment jurisprudence.… The whole point of enforcing motor vehicle safety regulations is to remove from the road the unlicensed driver before he demonstrates why he is unlicensed. The Court would apparently prefer that the State check licenses and vehicle registrations as the wreckage is being towed away.… The Court does not say that these interests can never be infringed by the State, just that the State must infringe them en masse rather than citizen by citizen. To comply with the Fourth Amendment, the State need only subject all citizens to the same ‘anxiety’ and ‘inconvenien[ce]’ to which it now subjects only a few.”

26.
Indianapolis v. Edmond
, 531 U.S. 32 (2000), with a vigorous dissent by Rehnquist, Thomas, and Scalia. Writing for the majority, O’Connor referred to
Sitz, Martinez-Fuerte
, and
Prouse
, which authorized checkpoints: “In none of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.”

27.
United States v. Haley
, 669 F. 2d 201, 203–4 (1982). At the time, circuit courts were in disagreement about the question. An earlier Supreme Court decision, in
Johnson v. United States
, 333 U.S. 10, 13 (1948), had decided that “odors alone do not authorize a search without warrant.”

28.
Illinois v. Caballes
, 543 U.S. 405 (2005). The D.C. Circuit had come to a different conclusion where police, discovering stolen license plates on a car, searched the trunk using the rationale that original plates might be there. They found a pistol but no tags. By two to one, a panel ruled the search without probable cause and therefore unconstitutional. The lone dissenter, who upheld the search, was John G. Roberts, Jr., soon to become Chief Justice.
United States v. Jackson
, 02cr00328-01 (D.C. Cir. 2005).

29.
United States v. Chadwick
, 433 U.S. 1 (1977).

30.
Arkansas v. Sanders
, 442 U.S. 753 (1979). On a tip, police followed a taxi carrying Lonnie Sanders from the Little Rock Airport, stopped the taxi, and opened his suitcase, which contained marijuana. Blackmun and Rehnquist dissented.

31.
Robbins v. California
, 453 U.S. 420 (1981). Police pulled over a car being driven erratically, and smelled marijuana, which gave them probable cause to search the passenger compartment. But then they crossed the line by opening two garbage bags. Even though they had probable cause to search them, the Court ruled, they could not do so without a warrant.

32.
United States v. Ross
, 456 U.S. 798 (1982).

33.
United States v. Johns
, 469 U.S. 478 (1985).

34.
California v. Acevedo
, 500 U.S. 565 (1991). After a Drug Enforcement agent in Hawaii intercepted a Federal Express package containing marijuana and addressed to a resident of Santa Ana, California, he arranged to have it sent to a police officer in Santa Ana, who took it to the FedEx office and waited for the addressee to pick it up. Officers followed the man home. When he emerged from his apartment to drop the box into the trash, an officer went to get a search warrant. Twenty minutes later, other officers saw a second man leave the apartment with a knapsack; they stopped his car, searched the knapsack, and found marijuana. Twenty-five minutes after that, Acevedo arrived, spent ten minutes in the apartment, then emerged with a paper bag about the size of one of the packages sent from Hawaii. The lead officer had not yet returned with the warrant, so when Acevedo put the bag in the trunk and started to drive away, he was stopped.

35.
The Court gave lip service to protecting privacy, writing, “The line between probable cause to search a vehicle and probable cause to search a package in that vehicle is not always clear.… At the moment when officers stop an automobile, it may be less than clear whether they suspect with a high degree of certainty that the vehicle contains drugs in a bag or simply contains drugs. If the police know that they may open a bag only if they are actually searching the entire car, they may search more extensively than they otherwise would in order to establish the general probable cause required by
Ross
, [which] may enable the police to broaden their power to make warrantless searches and disserve privacy interests.… We cannot see the benefit of a rule that requires law enforcement officers to conduct a more intrusive search in order to justify a less intrusive one.”

36.
California v. Acevedo
, 500 U.S. 565 (1991), dissent.

37.
Provided he follows a department’s standard inventory procedures and doesn’t make up rules as he goes along or use the inventory as a pretext for an investigation.
Colorado v. Bertine
, 479 U.S. 367 (1987).

38.
Colorado v. Bertine
, 479 U.S. 367 (1987). See also
South Dakota v. Opperman
, 428 U.S. 364 (1976), which authorized the use of evidence seized from the glove compartment, as opposed to containers, during an inventory search, and
New York v. Belton
, 453 U.S. 454 (1981), which authorized a warrantless search of a zipped jacket pocket on a seat of a car whose occupants were being arrested for marijuana possession. “[W]e hold that, when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment.”