Stop-and-Frisk: Policy searches
Yesterday I regaled you with the story of my recent bogus journey in the 8th District, where I got punked on the appeal of a sexual predator designation. But all is not gloom and doom; a month ago, I had an excellent adventure there, in which the court reversed the denial of a motion to suppress what has become increasingly common in recent years: the police stopping a vehicle, removing the occupant for some reason or other, then conducting a "protective sweep" of the interior before allowing the occupant back into the car.
The facts in State v. Henderson were fairly straightforward: around five in the morning, a police officer saw the defendant run a red light at Harvard and E. 131st. He followed him, saw him exceed the speed limit by about 15 mph and run a couple of stop signs, and finally put on his lights and siren, at which point the defendant immediately pulled over and stopped. The officer envisioned any number of scenarios as he approached the car, including that "that [the defendant] was fleeing a murder."
As they say in the Hertz commercials, "not exactly." The defendant was a 53-year-old man in a hurry to help his wife open their store, and then get to his dialysis appointment. The officer put Henderson in the back of the squad car while getting this information, then confirmed it with Henderson's wife. The officer decided to let Henderson go, but before doing so, followed his "standard policy" of searching the interior of the vehicle to make sure that "there is nothing that is going to come back to me." He found a gun in the car's console, and Henderson was charged with CCW and, by virtue of a 1989 drug conviction, having a weapon under disability.
The appellate court made short shrift of the state's argument. I've mentioned before that too often police, and even lawyers and some judges, conflate the stop and frisk requirements, believing that anytime a stop is justified, a frisk is as well. The court correctly noted that the more intrusive frisk "is not permitted. . . merely for convenience, or as part of [the officer's] normal routine or practice," and that
there is nothing in the record to show that the officer had a reasonable, articulable suspicion at any time during the traffic stop that appellant was armed and dangerous and that a search of the vehicle was necessary to protect him from danger.
Actually, this is one of those examples of how making a record in the lower court dictates the result in the appellate court. I'd handled the hearing in the trial court, too, and was greatly aided by one of the most honest cops I've come across; the result might have been different if he'd "remembered" that he'd seen the defendant make a "furtive movement" as he approached the vehicle.
Still, Henderson is a handy case to have. There are a number of bad decisions out there on interior searches of vehicles, including a nasty 1997 Hamilton County which flat-out states that the police have a right to conduct an automatic search under those circumstances. And let's face it: Lexis and Westlaw aren't exactly bulging with pro-defendant 4th Amendment decisions. After I'd finished the oral argument in this case, the lawyer in the next case approached me and whispered, "If you lose this, we're all screwed." A slight exaggeration, but not by a lot.
And he didn't use the word "screwed."