July 28, 2006
It's Answer Day at the Briefcase....
My client's charged with trafficking in crack cocaine, but it's actually powder. What should I do?
Nothing. Back in 1983, the Ohio Supreme Court had a case in which the indictment alleged that the defendant had trafficked in controlled substances, without specifying what those substances were. In State v. Headley, 6 OSt3d 475, the Court held that the type of drugs was an essential element of the crime, and that it couldn't be supplied by an amendment to the indictment under Rule 7(D). Wait until trial, then hand the judge a copy of Headley, and that should be that.
Maybe. That's not absolutely foolproof, by any stretch: Headley noted that the penalty you'd get depended upon the substance you were trafficking, and there's a big difference between what you get for peddling a Schedule IV drug versus a Schedule I. With cocaine, however, there's no difference between powder and crack in the classification, it's just a question of amount. Still, it's a decent argument, and what are your alternatives?
Can a policeman search the interior of a car after a traffic stop? If they make an arrest, sure; US v. Belton established a "bright line" rule that police may search the interior of a car, and any closed containers in it, as an incident to an arrest, even after the occupant's been removed from the car. And if the car's impounded, of course, they can do an inventory search.
But things are a lot dicier if it's an ordinary traffic stop. Since the traffic stop is analogous to a Terry stop, the search of the car would be analogous to a Terry frisk. As I explained a couple months back, just because the police have a basis for a stop doesn't mean they have a basis for a frisk; in order to justify the latter, they have to have a reasonable suspicion that the suspect is armed and dangerous.
There's a lot of case law out there which has upheld searches of the interior of a car after a traffic stop where the police have some reason to believe there's a weapon in the vehicle, such as furtive movements by the driver or the passenger. But there are a number of cases out there, like this one and this one, which hold that, in the absence of those factors, a "routine" search of the interior of the car after a traffic stop isn't going to cut it.
This is especially relevant in a situation that's cropping up with some frequency: the cop stops someone for a traffic violation, takes them out of the car and puts them in the cruiser to get the information, then decides he needs to conduct a "protective sweep" of the interior, or at least those areas reachable from the driver's seat, before he lets the driver get back into the car. (I've got one like that up on appeal now.)
It's tempting to suggest that such searches are necessary to protect officers because of the dangers to the officer inherent in traffic stops. There doesn't seem to be much statistical basis for that belief, however. Of the 154 police officers who died in the line of duty in 2004, more died as the result of accidents than intentional acts. It's impossible to figure out how many traffic stops there were in the corresponding period of time, but there were 2.5 million in the State of Illinois alone in 2005.
I'm not going to do the math, but it seems that the possibility that a driver might return to the vehicle, grab a gun, and shoot the arresting officer -- especially after he's been released, and is free to go -- doesn't seem to be a sufficient likelihood to warrant granting police an automatic right to search a vehicle any time they make a stop.