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What 4th Amendment?

Just the facts, ma'am:  About 8:30 on a July evening last year, the cops spotted eight males "loitering on a vacant property."   The officers approached the males and asked them for ID.  My client, who we'll call Ralph, said he didn't have any.  The cop asked, "Do you have anything on you that could hurt me?"  Ralph says, "Just a vitamin pill for my finger."  The cop patted down Ralph, felt the alleged pill through his pants pocket, and reached in and retrieved it.  It's a half-pill of ecstasy, which gets Ralph indicted for felony drug possession.

At the arraignment, Ralph draws the most law-and-order judge on the bench.  I tell everybody that the judge is going to toss the search, and they laugh at me.

But I know better.  Whatever her views on crime, the judge is smart, and she knows the law, and this is arguably The Worst Search in the History of the Fourth Amendment.

It goes down a little trickier than I'd anticipated.  A valid stop requires reasonable suspicion that someone's engaged in criminal activity, so on cross, I took the cop through the things that, in his experience, indicated drug activity, like people waving down cars, or engaging in hand-to-hand transactions, and he admitted he hadn't seen the males doing anything like that.  But he threw me a bit of a curve, claiming that the "criminal activity" they were investigating wasn't drugs, but criminal trespass; according to him, Cleveland has an ordinance which makes going on vacant property a crime.  (I looked it up.  Turns out the ordinance only prohibits going into vacant buildings or structures, so it wouldn't have helped him anyway.)

So then we get to the frisk, and the law is that a valid frisk requires a reasonable suspicion that the suspect is armed and dangerous.  The cop tries to parlay the lack of ID and the fact that one of the other cops told him Ralph was a drug dealer into reasonable suspicion that Ralph is packing, and we go around on that for a while. 

But I'm saving up my hole card.  There's a third aspect here, which neither the cop nor the prosecutor realized.  A frisk is for weapons only; you can't go into the suspect's pockets unless you feel something which could be a weapon, and half a pill isn't going to cut it.  Sure, there's a "plain feel" doctrine, which is that if a cop, while making a frisk, feels contraband, he can reach in and retrieve it.  But the case law, like State v. Bey from the 8th District, holds that it has to be immediately apparent that the item is contraband.  The cop readily admitted that he couldn't tell the pill was contraband until he pulled it out of the pocket and examined it.  Game, set, match.

The judge granted the motion, but not before spending five minutes talking about how 4th Amendment rules handcuff the police, and that the citizens of the neighborhood where my client lived might take a different view of the legitimacy of the search. 

Maybe so.  The police actions in this case reflect an approach I discussed last year, where the police simply descend on various areas en masse, in a show of force designed to get the gangs and the druggies off the street.  I'd mentioned at the time that residents might find that improved safety was worth a little diminution of 4th Amendment rights.

But maybe not.  Ralph's search didn't involve just a couple of cops; it involved eleven different officers and detectives, in four separate cars.  The cop himself referred to it as a "caravan."  They saw nothing other than a bunch of guys spending a summer evening sitting on a wall by a driveway and shooting the breeze.  They approached in force, patted everybody down, and for all this wound up with no guns, a half pill of ecstasy, and a minor misdemeanor quantity of marijuana.

And a bum search, which are occurring with increasing frequency, as I mentioned just a few weeks ago in a post about State v. Acy, another "investigative stop" which bore a striking familiarity to what happened to Ralph.  When we argued to the judge, the only case the prosecutor cited was Terry v. Ohio, which was decided 40 years ago; in addition to Bey and Acy, I had State v. Hope, also decided just last month (discussed here), and also tossing out a similarly dubious stop and frisk.  That didn't hurt.

Whatever training the Cleveland police are getting in the rudiments of search and seizure, it's not enough.

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