Where the 4th Amendment goes to die
Last week I gave a seminar on allied offenses, and the guy who spoke ahead of me -- a law professor -- did a talk on Crawford. Most of his presentation was devoted to a recap of recent Ohio cases on the subject, and he confessed that he found it difficult to understand some of those cases in light of the language of Crawford and the Supreme Court's subsequent decisions in that line. (One of the decisions he mentioned was State v. Young, a particularly dreadful decision, as I noted here.) After he was done, I told him that understanding the results in those cases is easy: you just have to start from the premise that appellate courts will come up with just about anything in order to affirm a conviction.
That's especially true in 4th Amendment cases. A couple months back, I was mildly critical of an 8th District case, suggesting that it went a bit beyond what the 4th Amendment required. I've felt bad about that ever since, because just about every day courts come up with the most convoluted rationales for upholding a search. There were two of them just last week.
The first is the 2nd District's decision in State v. Richardson. The theft of a motorcycle was caught on a surveillance tape, and the police gave the tapes to two TV networks, which broadcast them. That resulted in three anonymous tips identifying Richardson as one of the thieves shown in the video. Based on that, and the fact that Richardson had prior theft convictions, they got a search warrant for his home.
Let's go back over that. The police got a warrant based on the fact that (a) Richardson had a prior theft conviction, and (b) three people called up and said Richardson was the guy in the video. The three people were anonymous; there was no way the police, or the magistrate, could make any determination of their credibility. As the concurring opinion points out, in order to justify the issuance of a warrant, the police have to corroborate some incriminating aspect of the anonymous tip. That's pretty much hornbook law.
What's almost comical is the court's explanation of why the anonymous tips were sufficient:
The basis of knowledge of the three tipsters was the video that each saw, from which they identified Defendant Richardson. From that, it is reasonable to infer that each knew Richardson. The fact that Richardson is shown in the video connects him directly with the theft of the motorcycle.
Let's see: we have no basis for knowing whether the anonymous tipsters are reliable, but because they claimed to know Richardson we'll infer that they did, and since they claim he's in the video that shows he stole the motorcyle. Reasoning doesn't get much more circular than that.
Even more unsettling is the 12th District's decision in State v. Kelley. Middletown Police Officer Jordan was on patrol of one of the city's "open air drug marts." (They have "open air drug marts" in Middletown? The population of the city is 51,000, about the same as the number of people who torture themselves every week or so by going to a Browns game.) Jordan saw Kelley pull up at a stop sign, at which point Kelley "looked quickly away, his hands locked rigidly on the steering wheel." He "swiftly accelerated," which Jordan found "unusual," so Jordan ran his license plate and proceeded to Kelley's residence, a few blocks away.
Before he got there, he learned that Kelley had been stopped for running a traffic light. Jordan took over the stop, told Kelley to exit the vehicle, and performed a pat-down. Finding nothing, he proceeded to "conduct a field interview." Kelley first claimed to be on his way home, but Jordan pointed out this would be a very indirect route from where he was coming from, and would take him through a bad neighborhood. Kelley then claimed to be "out joyriding," but Jordan "questioned whether appellant was telling the truth in light of the high gas prices consumers were experiencing at the time." Kelley admitted that "driving through a high crime area late at night was abnormal," and that "he had had prior contacts with the police involving marijuana and cocaine."
It was at this point that Officer Jordan searched appellant's vehicle and discovered 0.20 grams of crack cocaine between the driver's seat and the center console. Officer Jordan then placed appellant under arrest.
Huh? How do we get to a search of the interior of the car? The court cites Michigan v. Long for the proposition that
an officer may search the passenger compartment of a during an investigative stop when the officer has a reasonable suspicion that an individual is dangerous and might access the vehicle to gain immediate control of a weapon. . . Considering the aforementioned facts, viewed in conjunction with Officer Jordan's testimony that weapons often accompany drugs, it was reasonable for Officer Jordan to be concerned for his safety."
Well, I'm sorry, but that's so wrong it makes my ears bleed. Yes, the first part is the holding of Long, but there the guy was obviously under the influence of something, and the police saw a knife on the floorboard of the car. Here, you have only the bullshit that "weapons often accompany drugs." There are certainly cases that hold that for drug traffickers, but the next time a cop testifies to the drug/weapon connection, ask him how many drug arrests he's made, and how many of those times he found a weapon. The last time I had a case like that, the answers were "hundreds" and "maybe five or six," respectively. Here, you have at best a reasonable suspicion of drug activity, and even that's arguably a stretch. There's nothing whatsoever to hint at Kelley being dangerous to anyone besides himself.
And all this for a fifth of a gram of crack.
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