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The 8th and the 4th

One of the problems with 4th Amendment law is that it's heavily fact-specific, making it difficult for appellate courts to provide lawyers and judges (to say nothing of the police) with clear guidance as to what's permissible and what's not.  The 8th District provided some, if unintentionally, in a couple of cases last week, and in the process provided further evidence for my belief that they're the most pro-4th Amendment court in the state.

The first case is State v. Weimer, where the police were hot on the trail of a guy named Calvin Locke.  Well, not that hot.  Euclid police got a complaint about a "known drug trafficking suspect" who supposedly lived on East 216th Street.   Based on that, the Euclid cops performed what they conceded was "limited" surveillance.  That's one way of putting it:  the surveillance consisted of the detective driving past the house in March of 2007, where he observed Locke operating an SUV in front of the residence, and, four months later, of driving past the house again and seeing Locke standing outside. 

A year later, the cops did a trash pull of the garbage from the residence, and found several zip lock bags and a metal spoon which tested positive for cocaine, as well as a letter addressed to Locke at that residence.  On that basis, the cops got a warrant and searched the place.  Locke wasn't there, but the owner of the home, Anna Weimer, was.  The police found 16 grams of cocaine and a scale that tested positive for residue.  Both Weimer and Locke were charged, although the charges against Locke were dismissed.

The trial judge granted Weimer's motion to suppress, and the 8th affirmed, and set some fairly clear guideposts for future decisions:

1.  Failure of the police to disclose information when obtaining the warrant will be treated harshly.  Here, the police had substantial evidence that Locke didn't live at the E. 216th Street residence:  his drivers license, a county property listing, and a LexisNexis search, showed three other addresses.  When combined with the limited observations of Locke at the E. 216th address, that's not enough to establish that Locke lived there.

2.  Trash pulls aren't a favored method of collecting evidence.  Here, the police testified that the garbage was in a public area where others had access to it, they didn't observe who took it out to the treelawn, and admitted others could have placed the bags and spoon in there.  The court threw out a warrant back in March in State v. Kelly (discussed here), which was also largely based upon a trash pull, because there the police didn't bother testing the "suspected" drugs.  If the cops are going to rely on a trash pull, the evidence better be airtight.

3.  Sloppy police work is going to be penalized.  I've previously highlighted some of the difficulties with police work here, particularly with regard to cops' apparent belief that a stop automatically entitles them to frisk a suspect.  But that also applies to warrants.  Observing the premises twice in a four-month period, and then sitting on it for a year, is simply not good police work.  A similar lack of surveillance was what got the warrant bounced in Kelly, too.

The second search and seizure case out of the 8th last week, State v. Pettegrew, was a closer call, as evinced by the fact that it engendered a dissent, but provided perhaps even a clearer guidepost:  if police are going to rely on a hand-to-hand transaction to support a stop for drug activity, they have to witness an actual hand-to-hand transaction.  The police observed Pettegrew sitting in a parked car in the obligatory "high-crime" area, with a male standing outside on the driver's side.  The male reached inside, and, according to the officer, he observed them "with their hands at each other, making a transaction hand-to-hand."  On cross-examination, he indicated he couldn't see their hands actually touch, and did not see money or contraband actually being exchanged.  The cops pulled up, blocking the car, and the other male fled.  The officer ordered Pettegrew to show his hands, and when he did, he dropped a rock of crack cocaine.

And that was enough:  the court reversed the denial of the motion to suppress, finding that "the officer's inability to say outright that he observed the exchange of something" doomed the search.

There are any number of permutations of panels from the district's twelve judges which would have come to a contrary result, and it's easy to understand why.  It's hornbook law that "reasonable suspicion" for a stop is to be determined from the totality of the circumstances, and the court instead engages in a common fallacy:  taking each circumstance and evaluating it on its own.  Thus, the fact that this was a high-crime area is of no significance, because there are court decisions stating that people who live in high-crime areas do not thereby surrender their constitutional rights.  Well, that's certainly true, but does that mean it's no longer a circumstance that can be considered?  And given the nature of drug transactions, and the constraints upon the police in observing them, requiring that an actual exchange of items be observed arguably sets too high a hurdle. 

I'm more comfortable with Weimer than Pettegrew, especially considering the core values the 4th Amendment is intended to protect.  Invading the sanctity of someone's home should require more than a lackadaisical effort.  The more minimal invasion of privacy occasioned by stopping someone on the street (note that Pettegrew's vehicle wasn't moving) should not require superhuman effort to establish reasonable suspicion.

Perhaps the most beneficial aspect of Pettegrew is that it does at least establish a clear guideline.  That is, until a different panel of the district's judges tackle the question.

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