Findings of fact
There are few things more frustrating in law than to file a motion to suppress, do all the legal research and prep, then go through a three-hour hearing, only to have the judge say, "motion denied," without giving any explanation of why he ruled the way he did. Well, be frustrated; as indicated by the 8th District's decision last week in State v. Stewart, that can work to your advantage.
Stewart involved one of those prosecutorial rarities, the narcotics bust. The police were conducting surveillance at one of the city's many drug marts, and spied the defendant take something from his mouth, count it, then put it back in. The cop then saw a Ford Ranger stopped in traffic; the defendant approached the Ranger, got in, and the vehicle drove off. The officer who'd seen all this radioed to a zone car and told them that the Ranger had committed a traffic violation -- the area was a no-stopping zone -- and that the passenger was suspected of drug activity. The police pulled the vehicle over and, as the defendant was exiting it, one of the officers spied a bag of cocaine in "plain view" in the middle of the floor of the vehicle.
The trial court denied the motion to suppress, finding that the police officers had a reasonable suspicion to stop the Ranger. The court of appeals found to the contrary, citing a number of earlier cases to support its position that observing the defendant take something from his mouth, count it, and then put it back in wasn't sufficient to create a reasonable suspicion that he was engaged in drug trafficking.
Now, if you're reading along -- and, quite obviously, you are -- you're probably thinking, "Hey, what happened to the traffic stop?" As we all know, a traffic violation, no matter how obscure, is a sufficient basis for a vehicular stop, even if it is for an ulterior purpose, and "stopping in a no-stopping zone" is no more a bullshit violation than getting pulled over for not using your turn signal on an exit ramp or having tinted windows or a loud muffler, or all the other petty transgressions of the traffic code that now serve as the launch point for the assault on the 4th Amendment.
Well, it turns out that the state forgot to argue the traffic violation in the lower court. The court of appeals said, thank you, but you're not going to do it here, either:
In denying appellant's motion to suppress, the trial court only made the factual determinations necessary for rendering its decision as to reasonable suspicion and did not make any factual determinations or judge credibility as to the traffic stop, which appellant contested. Therefore, we cannot address the state's argument that the detectives had probable cause to make a traffic stop because an appellate court is not a fact-finding court, and thus, is limited by the findings of the trial court contained in the record.
That's an interesting conclusion in light of a case from last year, State v. Ogletree, which offered a similar legal situation. The defendant there was approached and questioned by the police regarding drug activity, at which point they observed him "swishing" a piece of crack cocaine in his mouth. The state offered two theories in support of the search: stop and frisk, and that the encounter was a consensual one up until the point where the officers observed the piece of crack. The trial court rejected the first argument, but made no findings on the second. The court of appeals agreed that there was no reasonable suspicion for a stop, but noting that Criminal Rule 12(F) requires that "where factual issues are involved in determining a motion, the court shall state its essential findings on the record," it concluded that "this [case] becomes a classic circumstance where findings of fact are crucial to the resolution of the issue," and reversed and remanded the case for further factual determinations by the trial court.
So why didn't the Stewart court do the same thing: remand back to the trial court for factual findings on the traffic violation issue? I've suggested before that the 8th District seems to developing a more critical attitude toward low-end drug busts and accordingly is more willing to find 4th Amendment violations in those cases, and that may have played a part in Stewart.
And there's another thing that may have factored into the outcome in Ogletree. The appellate court's opinion notes that "the court did not directly address the state's [consensual encounter] theory, but very obviously rejected it by remarking that one of the judges of this court would 'be happy to hear that argument.'" Knowing the trial judge, I'm fairly confident that she was referring to Michael Corrigan, certainly the most conservative of the judges on the appellate bench at that time.
Guess who wound up writing the opinion in Ogletree?