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Act in haste, repent at leisure

I've mentioned before that the 8th District is arguably the most 4th-Amendment-friendly appellate court in the state, and that view was further vindicated last week in State v. Alexander.  The police had received info from that old standby, the "confidential informant," that Alexander was selling drugs out of his house.  They attempted to set up numerous controlled buys over several months, but, according to the CI, Alexander had to call them off because he never had the drugs the CI told the cops he'd agreed to sell.  The police also occasionally surveilled Alexander's home, but saw nothing which indicated drug activity.

Finally, the cops monitored another conversation, in which the CI and Alexander agreed on a purchase.  Well, maybe it was Alexander.  It turns out the cop had never spoken to Alexander, and the person on the other end of the line didn't identify himself.  The cop ventured his "opinion" at the hearing that it was Alexander, but that was based solely on the word of the CI.

Nonetheless, the cops set up a stakeout for where the buy was to take place, and sure enough, Alexander pulled into a driveway near the meeting place.  Without waiting for the drug deal to go down, the police immediately stopped Alexander, pulled him out of the car, and found a package of cocaine.  They used that to get a search warrant for a house, where they discovered additional drugs, scales, cash, and a gun.

The trial court tossed all that out, and the court of appeals affirmed.  The central issue, of course, was the legitimacy of the stop of Alexander's car.  The court held that the stop wasn't permissible, because previous efforts to purchase drugs hadn't been successful, the police surveillance didn't corroborate the CI's allegations, and there was nothing other than the CI's word that the guy he arranged the drug buy with was Alexander.  The court even determined that the good faith exception didn't save the search warrant, for pretty much the same reasons.

In a way, the case presents one of the more maddening aspects of Fourth Amendment Law.  An advantage I have in writing about 8th District cases is that I know the judges, and I can say with confidence that a different trial court or a different appellate panel could have easily come up with a different result.  Frankly, even I'm a bit on the fence as to the stop of Alexander; if the police monitor a call in which someone who allegedly drives a gold Cadillac agrees to sell an informant drugs at a particular time and place, and at that particular time and place somebody pulls up in a gold Cadillac, I think a lot of judges would conclude that a police suspicion that a drug deal would go down went beyond an "inchoate hunch."

On the other hand, this case, unlike so many others in this area, at least provides a guidepost for future police actions.  If there's a lesson for the police to learn here, it's a simple one:  wait until the deal goes down before making the bust.

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