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Lazy days

In addition to this blog, I also do a summary of the 8th District cases each week on the listservs of the Ohio Association of Criminal Defense Attorneys and the Cuyahoga Criminal Defense Lawyers Association.  If anything, the summaries are a bit more snarky than the stuff I post here, because it's to a more limited audience.  (Which is shorthand for "I don't have to worry about certain people reading it.")  A number of other people on the OACDL listserv do summaries of the appellate cases out of their district, and a guy named Stuart Benis does a very nice job summarizing 6th Circuit cases.  I don't do much Federal work, but some cases are very handy to have in state criminal prosecutions as well.  Plus, I don't have anything else to write about, so today I'm going to crib from Stu and highlight US v. Johnson, one of the cases he's tipped me off about over the past few weeks, and a great case on search and seizure.

It starts out with a 911 call to the Newport, Tennessee police that "some people" connected with a blue Cadillac were "walking around" outside the caller's apartment.  The police responded a few minutes later, then saw Johnson carrying a bag and walking at a normal pace toward a white car parked on the street.  The police called for Johnson to stop, but he kept walking at the same pace until he reached the car.  He opened the passenger-side door, threw the bag inside, then stood outside the car as the police approached.  The officers patted him down and found a gun.  That resulted in Johnson's sentence to 19 years imprisonment as an armed career criminal, after the district court had denied his motion to suppress.

The case raises two issues, the first being the point at which Johnson was seized.  The law on this is both simple and vague:  a person is seized when "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."  The court concluded that, at the very latest, Johnson was seized when he reached the car, because it was at that point that he complied with police demands to stop.  (One isn't seized unless he "actually yields to the show of authority."  In plain language, you aren't seized if you run or, in Johnson's case, continue walking away.)  The police argued that Johnson wasn't really stopped until he raised his hands in compliance with the police demands, but the court rejected that:

If a person stopped and raised his hands at an officer's command but failed to obey a further command to spread his legs or to lie on the ground, we would not say that he had not been seized initially. It is enough to submit to an officer's initial command to stop and to remain stopped.

Why is determination of the exact point of seizure critical?  Because it is at that point that reasonable suspicion must exist.  If there's no reasonable suspicion at the time the stop is made, it's illegal, and any evidence seized thereafter is fruit of the poisonous tree.  In this case,  the police contended that much of Johnson's movement at the car -- his initial delay in raising his hands, a movement toward his midsection -- formed the reasonable suspicion for the stop and frisk.  But if he had already been seized before that -- before he delayed in raising his hands, or made suspicious movements -- then that can't be used in determining whether the police had a right to stop him.

The next issue, then, is whether the police had a reasonable suspicion that Johnson was engaged in criminal activity at the point where he stopped at the car.   Even the district court had found that the 911 call gave no indication of criminal activity.  The government's fall-back argument was that Johnson's continuing to walk away from the police after they'd ordered him to stop gave rise to a reasonable suspicion that he was up to no good. 

Given the vagaries of the "totality of the circumstances" test, it's not surprising that a suspect's failure to comply with a police order can constitute a basis for a stop.  Or not; the cases are all over the board on this, some finding reasonable suspicion where a suspect who'd just emerged from a drug house "had a deer-in-the-headlights kind of look and proceeded to pick up the pace" to cross the street upon seeing two officers, and others finding no reasonable suspicion when two men who appeared to exchange something separated their hands and "walked quickly up the street when a police car appeared."

But this case, the court decides, is not even a close call on that score:  Johnson didn't change course or otherwise react suspiciously to the police, but simply kept walking in the same direction at the same pace, conduct which "was the quintessential example of 'going about one's business' -- protected, unsuspicious conduct that the Supreme Court has characterized as 'the opposite' of flight."

It is undisputed that the officers lacked reasonable suspicion to seize Johnson when they called for him to stop and that Johnson was entitled to keep walking.  Nonetheless, the government insisted at oral argument that ignoring an unconstitutional order contributes to reasonable suspicion. We seriously doubt the wisdom of labeling reasonably suspicious the proper exercise of one's constitutional rights.  When an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business.

A couple weeks back, I wrote that my view of the Fourth Amendment is that it "means the government shouldn't be able to mess with you unless they have some basis for believing that you're messing with somebody else."  The 6th Circuit put it far more eloquently.


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