This is a case of exceptional importance. It could have marked a turning point in the decline in the protections provided by the Fourth Amendment. It could have indicated that the Court was becoming more sensitive to the rights of minorities and the poor as they bump up against the police in the War on Drugs. It did neither of those things. Rather, it is a case that continues to define the relationship of the police and citizens, particularly citizens in our poorest neighborhoods and largest cities. It is one that continues to expand the power of the police to search citizens, especially their persons, with little suspicion that the citizen has engaged in wrongdoing. It is one that raises the inquiry whether minority groups and particularly juveniles can be treated fairly by our police and within our criminal justice system.

This case arose out of Chicago. 4 police cars were driving in a caravan into an area known for heavy narcotics trafficking. The purpose of the trip was to investigate narcotics trafficking. Officers Nolan and Harvey saw Wardlow with an opaque bag in his hand. Wardlow fled, and Nolan and Harvey followed, eventually cornering him. A pat-down search was immediately conducted, and a gun was discovered in the opaque bag. Wardlow was arrested.

Wardlow’s conviction was reversed by the Illinois Appellate Court, who held that Nolan did not have an articulable suspicion when he stopped Wardlow. The Illinois Supreme Court agreed, holding that sudden flight in a high crime area does not rise to the level of an articulable suspicion sufficient under Terry v. Ohio, 392 U.S. 1 (1968) to justify a stopping. The Court held that when one is stopped, the citizen has a right to "decline to answer and simply go on his or her way, and the refusal to respond, alone, does not provide a legitimate basis for an investigative stop" The Court further observed that flight may simply be an exercise of this right to "go on one’s way," and thus could not constitute a reasonable suspicion.

The United States Supreme Court granted Crete, and reversed in an opinion written by Chief Justice Rehnquist. The Court founded its decision on Terry v. Ohio, 392 U.S. 1 (1968). In so doing, the Court also minimized the standard used for Terry stops. The Court reaffirmed that a "’reasonable suspicion’ is a less demanding standard than probable cause," and more significantly stated that a reasonable suspicion "requires a showing considerably less than preponderance of the evidence."

The Court stated that the nature of a high crime is a factor in the reasonable suspicion calculus. Being in a high crime area does not in itself suffice. However, "officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation."

The second factor considered by the Court was flight. "Headlong flight—wherever it occurs—is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such." The Court considered flight in a high crime area to be sufficient under the totality of the circumstances to constitute a reasonable and articulable suspicion to justify a Terry stop in this case.

The Court did not go as far as requested by the State of Illinois. The Court rejected the State of Illinois’ request for a bright line rule that would have allowed for a detention of anyone who fled at the sight of a police officer. Obviously, that rule would have been an even more potent weapon in the war on crime.

In a remarkable statement, the Court acknowledged that innocent people can be effected by their decision. "Terry accepts the risk that officers may stop innocent people. Indeed, the Fourth Amendment accepts that risk in connection with more drastic police action; persons arrested and detained on probable cause to believe they have committed a crime may turn out to be innocent." So much for the law going out of its way to protect the innocent even at the risk of the guilty going free.

The opinion of the Chief Justice was joined by Justices Kennedy, Scalia, O’Connor, and Thomas. Justice Stevens wrote a dissenting opinion, joined by Justices Souter, Ginsburg, and Breyer. This opinion applauds the majority opinion for rejecting a per se rule that flight upon seeing a police officer suffices for a Terry stop.

However, the dissenters disagree with the judgment of the Court regarding whether the totality of the circumstances in this particular case constituted reasonable suspicion. The dissenters were not impressed with the fact that Wardlow’s flight had occurred in a high crime neighborhood. The dissenters state that "even in a high crime neighborhood unprovoked flight does not invariably lead to reasonable suspicion. On the contrary, because many factors providing innocent motivations for unprovoked flight are concentrated in high crime areas, the character of the neighborhood arguably makes an inference of guilt less appropriate, rather than more so."

In the end, the Court continued to place its thumb heavily on the side of law enforcement and the police. Under this decision, the police will be able to make a Terry stop of virtually anyone they want, no matter the pretext. In a long line of cases from Terry through Whren and now to Wardlow, the Court has allowed the police to confront citizens on the streets and in their cars, to frisk them if they can articulate some sort of public safety need, to search them and their cars if something is discovered, and all the while to ignore any proof that the search and seizure is pretextual. The evidence continues to mount that driving while black is a crime in this country. The evidence continues to mount that confronting black street gangs is sufficiently valuable to continue to acquiesce to the long, sad decline of the Fourth Amendment.
 

The question is posed as follows by the Court: "May a police officer make a warrantless seizure of contraband which has been inadvertently discovered, in plain view, by a firefighter during the legitimate performance of that firefighter’s duties?"

Hazelwood experienced a house fire in his kitchen in 1998. When he and a police officer were unable to put out the fire, the fire department was called. After the fire was taken care of, the firefighters inspected the house to ensure that the fire had not spread. While doing this, a firefighter discovered marijuana in a kitchen drawer. The police officer was called back into the house, and he seized the marijuana, and eventually after Hazelwood gave his consent, a large amount of marijuana was seized. Hazelwood was charged with trafficking in marijuana. His motion to suppress was overruled, and he eventually was convicted and sentenced to 5 years in prison.

The Court of Appeals affirmed the trial court in an opinion written by Judge Dyche and joined by Judges Gardner and Knox. The Court first noted that firefighters "may enter a burning building to extinguish the fire without having to obtain a search warrant," citing Michigan v. Tyler, 436 U.S. 499 (1978). Further, once the firefighters were on the scene engaged in their job and they come upon contraband inadvertently, "they are allowed to seize the items or material. That initial intrusion being legitimately made, it is not unreasonable for a police officer to be called in to make the actual seizure."

The Court took pains to note that this holding is limited. "The firefighters must be legitimately on the premises; the discovery of the evidence or contraband must be inadvertent; the police must enter only upon request of the firefighter; the seizure must be limited to the evidence or contraband in plain view, and inadvertently discovered by the firefighter; no further search or seizure is performed; and the seizure is accomplished within a reasonable time." Because all of these limitations were met in this case, the trial court’s ruling was affirmed.

The Sixth Circuit has issued a case which demonstrates the proper use of a Terry stop. In this case, a Mansfield, Ohio police officer was responding to citizens’ complaints about trafficking in drugs in their neighborhood. He began to watch a particular "purported crack house" when he saw Harris walking "erratically" near the house, bend down and remove something from his shoe, and cup something in his hand. He also had one pant leg rolled up, which he would later testify was "a common street sign that a person is holding or dealing drugs."Based upon these observations, the officer stopped Harris. Harris indicated that he was going to his cousin’s house, but declined to give his cousin’s name. The officer asked him to move his hands away from his body, but Harris refused. He then told Harris he was going to pat him down for weapons, but Harris told him he would not allow that. A struggle ensued, and eventually once back-up arrived, Harris was subdued. A weapon and 3.056 grams of cocaine were discovered.

Harris moved to suppress, saying that the stop was illegal under Terry. Harris’ position was that his actions were all innocent. He relied upon Brown v. Texas, 443 U.S. 47 (1979) where Brown was arrested for failing to identify himself. There, the "Supreme Court reversed the defendant’s conviction for violating the statute because it found that the officers lacked any reasonable suspicion to believe that the defendant was engaged in or had engaged in criminal conduct, and therefore the officers’ seizure of the defendant violated the Fourth Amendment." Finally, Harris claimed that the officer had seized him based solely upon his suspicion that he was intoxicated, and that once that was belied, the officer had no right to continue to hold him. The district court overruled the motion to suppress, and Harris was tried and convicted. He appealed.

The Sixth Circuit, in an opinion by Judge Keith, and joined by Judges Daughtrey and Moore, affirmed the district court. The Court acknowledged that each of Harris’ individual acts were as consistent with innocence as with guilt, but that "when viewed in the aggregate, we agree with the district court that Officer Snavely reasonably concluded that criminal activity may have been afoot." The Court relied upon United States v. Sokolow, 490 U.S. 1 (1989), "where it held that a series of acts, each of which is consistent with innocent behavior, may when taken together, amount to reasonable suspicion." The Court asserted that "what constitutes reasonable suspicion is heavily dependent on the facts of each case and does not lend itself to precise categorizations within the case law." Based upon all of the aggregate facts, the Court agreed with the district court that the officer had a reasonable suspicion that criminal activity was afoot at the time he stopped Harris.

The Court further distinguished Brown, saying that "Brown presents a stark contrast to the instant case, where Officer Snavely testified that his suspicions were aroused by Harris’s actions and mannerisms, as well as the mysterious items Harris removed from his shoe or sock which he appeared to be counting as he walked along." This was contrasted to Brown, which featured a "classic example of the ‘unparticularized suspicion or hunch’ warned against in Terry."
 

The police here obtained evidence that Dice was growing marijuana, so they got a warrant. However, when they executed the warrant, they forgot the rules of knock and announce. Instead, they knocked on the door but did not give the residents an opportunity to respond. They kicked the door in, and found 1900 marijuana plants inside.

Dice moved to suppress the evidence, and this motion was granted by the district court. The Sixth Circuit affirmed the district court. The Court rejected the position of the State that the evidence should be admitted because the police had obtained a warrant and had knocked, saying that this should avoid the application of the exclusionary rule. The Court further rejected the State’s position that there was an independent source apart from the illegality. The Court held that the exclusionary rule should apply precisely because waiting for a response following the knock was an important part of the knock and announce rule. "[K]nocking without properly waiting for admittance contravenes each of these three interests as much as if the knock had never taken place at all." The three interests of the knock and announce rule, the Court reminded, are to reduce the potential for violence, to avoid the destruction of private property, and to protect the privacy of residents.

1. Vasquez v. State, 990 P.2d 476 (Wy. 11/16/99). The Wyoming Supreme Court has held that the bright line rule of New York v. Belton, 453 U.S. 454 (1981) is not necessarily the rule under the Wyoming Constitution. In Wyoming, when a person is arrested, the passenger compartment of the arrestee is not to be searched necessarily. Rather, the Court will look at whether a search of the passenger compartment is reasonable or not. "This result eschews a bright-line rule and maintains a standard that requires a search be reasonable under all of the circumstances as determined by the judiciary, in light of the historical intent of our search and seizure provision." While this provided no relief to Vasquez, it is an interesting analysis of a state constitutional provision.
2. State v. Parker, 987 P.2d. 486 (WA. 11/4/99). The Washington Supreme Court has gone further than the Wyoming Court. The Court was reviewing a situation of an arrest for driving with a revoked or suspended driver’s license. Passengers were requested to leave the car, after which the passenger compartment was searched, including the passengers’ belongings. The Court held that the Washington Constitution provides additional protection to passengers. "We hold that the arrest of one or more vehicle occupants does not, without more, provide the ‘authority of law’ under article I, section 7 of our state constitution to search other, non-arrested vehicle passengers, including personal belongs clearly associated with such nonarrested individuals."
3. State v. Reinholz, 66 Cr. L. 177 (Neb. 11/19/99). Finding drug paraphernalia in the trash a single time does not provide probable cause to believe that drugs will be found in the house. Thus, a search warrant issued based solely upon the finding of drug paraphernalia in the trash was illegally issued, and evidence found during the execution of the search warrant must be suppressed.
4. Lovelace v. Commonwealth, 522 S.E.2d. 856 (Va. 11/5/99). The Virginia Supreme Court has held that a pedestrian may not be searched incident to the detention of someone who cannot be arrested. The Court used the rationale of Knowles v. Iowa, 525 U.S. 113 (1998), which held that a search incident to an arrest cannot be conducted for an offense during which the officer intends to issue a citation rather than effect an arrest.
5. The Drake University Law Review (47 Drake L.R. 833) features a lecture given by Richard M. and Anita Calkins on March 30, 1999, in which they review the many exceptions (they number 30), to the warrant requirement for automobiles. Their conclusion is insightful, and worth reproducing here at some length, both for its wisdom regarding automobiles, and for 4^th Amendment jurisprudence as a whole. I also like the basketball analogy. "The courts have taken a bifurcated view of the Fourth Amendment. Opinions continually recognize the need for strong privacy protection from the government. But, the action in support of that protection is quite muted. Instead, police efficiency in criminal apprehension and judicial efficiency in litigating exclusionary rule applications by presumably guilty individuals has drowned out the perceived need for Fourth Amendment protection. The drift in the Fourth Amendment decisions can be compared to the contrary action in adopting Miranda. In Miranda, the Court recognized it would never know the real facts under which confessions were obtained but the Court knew it was not pretty. Dealing with the reality, the Court imposed a warning device to at least alleviate some of the unfairness in the process. The Court is unwilling to do the same in search and seizure cases where the reality of discriminatory and expansive auto stops and consents, unless videotaped, are impossible to recreate. The Court hides behind fictions to preserve police action. The current drift can be somewhat analogized to the evolution in basketball in the past thirty years. Basketball involves written rules to provide a level playing court between two adversaries, each of whom is trying to gain an advantage on the other. The thrust of the game is not to play by the rules, but merely not to get caught violating the rules. Referees over a period of time interpret the rules to permit that which they cannot stop. Basketball has gotten significantly more physical over the years. What used to be fouls are no longer called. Palming used to be a violation and is now rarely called except in egregious circumstances. As certain types of violations pile up, referees realize they cannot call everything and so allow what used to be violations. Players constantly push the rules. Fans are also part of the mix. Fans pay. The game remains entertaining and must evolve to keep fans paying. To some extent, outcomes are financially driven by fans. The same concept is occurring between the police and criminals in the cops and robbers game. Police are engaged in the competitive business of ferreting out crime. The constitutional rules only apply if police get caught violating the rules and only then if the government wants to use the evidence. Obviously, the robber squad has no rules. Police responses under game pressure reoccur so often that the police continue to pressure the referees, the judiciary, to give the officers greater leeway with some of the rules. Fop judicial and police efficiency, the courts are slowly drifting that direction, permitting broader warrantless intrusions. The game changes and what used to be perceived of as rights are slowly diminished. A major difference between basketball and the game of cops and robbers is the intimate involvement of the third entity, the rest of the community. The community and its individual members are involved in the role of innocent victims, either of criminal acts or of warrantless police intrusions. But the role of victim does not offer significant opportunities to affect the rules of the game through litigation. Thus, the community is without a real voice in Fourth Amendment litigation. Nevertheless, public rights are being reconfigured whenever the courts make adjustments in the rules of cops and robbers. The courts need to reemphasize that Fourth Amendment rights go beyond merely protecting criminals. To protect the rights of both the innocent and the guilty, the courts must reaffirm the basic underpinnings of the Fourth Amendment for all of us in all situations and not merely focus on the microcosm of police and criminals."
6. State v. Colzie, 1999 WL 1074111 ( Tn. Crim. App., 11/30/99). Finding rolling papers in a cigarette pack during a legal traffic stop does not give the police probable cause to search the entire car. The Court found unpersuasive the State’s argument that the presence of the rolling papers allowed for an arrest for paraphernalia, with a subsequent search incident to arrest; the Court further rejected the argument that the presence of the rolling papers constituted probable cause that the car had marijuana in it.
7. People v. Winpigler, 8 P. 3d 439, (Colo. 12/6/99). The police gained evidence during a routine traffic stop that the defendant was trafficking in methamphetamine at his home. They went to his home, and talked with someone other than the defendant. That person promised to go through the back door and rouse the defendant. The front door stood open, allowing for the police to smell iodine, apparently a substance used in the manufacture of methamphetamine. The police also saw swords on the wall. This prompted them to enter the house without a warrant. The Colorado Supreme Court held that this entry was illegal, and evidence obtained as a result had to be suppressed. The Court rejected the State’s argument that the odor plus the swords constituted exigent circumstances sufficient to overcome the warrant requirement.
8. Reynolds v. State, 742 A.2d. 55 (Md. Ct. Spec. App., 12/9/99). When the police see a group of individuals, and ask one of them for his name and date of birth, and where the person waits while a computer checks the information given, that encounter implicates the Fourth Amendment requiring some level of suspicion. In this case, where there was no level of suspicion, a search incident to an arrest was illegally conducted under these circumstances. The Court determined that Reynolds would not have felt free to leave under the circumstances while the computer was checking the personal information, and thus that detention was illegal.
9. A recent law review article entitled www.warrant.com: Arrest and Search Warrants by E-Mail in the Vol. 30 of the McGeorge Law Review (30 McGeorge L.R. 590) provides a fascinating preview of what will happen someday in Kentucky. The article by Micael John James Kuzmich reviews a California statute authorizing warrants by e-mail. The article reviews others applications of technology to the Fourth Amendment, including the 1977 change in the Federal Rules of Criminal Procedure allowing for the issuance of search warrants by telephone, the 1993 amendment allowing for the use of fax machines, and some states’ statutes allowing for the use of cell phones. In this context, California passed Chapter 692 allowing for warrants to be issued by e-mail. The law provides certain protections. For example, the officer continues to give his/her oath by telephone, documents and the affidavit are transmitted by fax or e-mail, the officer signs using a digital signature. The author further states that while there are legitimate concerns regarding tampering and hacking, that encryption technology can alleviate those concerns. He concludes that this law "is an effective way to bring law enforcement capabilities up to par with modern technology. Although the use of telephones and fax transmissions have proven to be a secure and effective means of obtaining a warrant, e-mail transmissions will be even more effective as patrol cars can be easily outfitted with the proper equipment. This allows peace officers to obtain necessary approval for warrants without leaving their vehicles, thus accelerating the entire warrant process." While I am troubled by some of the privacy concerns, I further believe that technology can reinforce the need for a warrant, which in the long run will better protect the privacy rights of citizens than our present proclivity toward warrantless stops and searches and seizures.

Public Advocate
 

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