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The Usual Suspects

Apparently, the phrase "round up the usual suspects" has a different meaning for the Cleveland police department than it did for Captain Renault in Casablanca. 

Responding to a call of a shooting in a residential neighborhood, the police got a description from one of the witnesses:  the shooter was “something like” six feet tall and “looked like” he had braids under a hat, had a number tattooed on his face and wore a black shirt and black pants.  Two more officers arrived on the scene minutes later, and were told that there were two suspects, who had last been seen walking eastbound:  a male described as around 5’10” to six feet tall in his late 20s or early 30s and in dark clothing, and a female. 

The officers drove east, and five minutes later, they observed Kevin Stewart and a female walking through a parking lot.  They got out of their cars and asked Stewart if he had any weapons.  He didn't reply, but "looked both ways," at which point they patted him down and found a gun in his waistband.

Stewart wasn't the shooter -- he was 5'8", 20 years old, and had no tattoos on his face or braids in his hair, and he and his girlfriend testified he was wearing a white hoodie.  The trial court decided that the stop occurred so quickly after the shooting that the officers were justified in making it.

As the 8th District notes in reversing in State v. Stewart last week, "the description of the male would have matched just about any other male who might have been out at that time of night."  That's the precise issue; as one commentator has observed, "the description must permit the police to be reasonably selective in determining who to stop for investigation, and whether this may be said to be the case will depend upon how many persons are in the universe of potential suspects."  That's a closer call here than one might think.  The court relies for its analysis on US v. Goodrich, a case from five years ago, where the 3rd Circuit spelled out the factors to be considered:

(1) the reputation of the area in which the stop occurred for criminal activity; (2) the time of day; (3) the geographical and temporal proximity of the stop to the scene of the alleged crime; and (4) the number of persons in the area.

The first three cut in favor of the stop; there's no evidence one way or the other on the fourth.  Plus, there's another factor here:  the police weren't just looking for a black male, they were looking for a black male and a black female.  How many other black couples could they have expected to encounter within five minutes and three blocks of the shooting at 1:30 in the morning?

Does this mean that Stewart got it wrong?  Not necessarily.  The court notes that it's dealing with the "collective knowledge doctrine":  "law enforcement officers cooperating in an investigation are entitled to rely upon each other’s knowledge of facts when forming the conclusion that a suspect has committed or is committing a crime."  In short, any knowledge by one police officer is imputed to others.  But that should work both ways.  Here, the originating officer -- who apparently is the one who provided the information to the two officers who apprehended Stewart -- also had additional information which he didn't convey; as the court notes,

the description of the shooter relayed by the police at the scene was highly incomplete, as the testimony showed that the suspect might have been wearing braids and had a facial tattoo — two very specific identifying characteristics that could have easily narrowed the range of possible suspects.

Stewart and another decision last week, State v. Carmichael, solidify the 8th's well-earned reputation as the most 4th-Amendment friendly in the state, if not the country.  While "spotting" -- sitting in an unmarked car and watching the area for possible criminal activity -- a Cleveland police detective saw a man approach a silver minivan sitting a hundred or so feet away, walk up to the driver's side, "converse real quickly" and then "hand something to the passenger" before walking away.  The minivan headed off, the detective told another team member to follow it, and police pulled the vehicle over a few minutes later.  As they approached the van, police saw Carmichael, a passenger, shoving a plastic bag down his pants.  (If Mae West had been a strawberry, her signature line would've been, "is that a bag of crack or are you just happy to see me?") 

Over the last several years, the 8th District has issued three decisions in "exchange" cases -- State v. Pettegrew, State v. Agee, and, earlier this year, State v. TolesAs I explained when Pettegrew came down, the cases hold that if the police base an investigative stop upon observing a hand-to-hand exchange of what they believe to be drugs, they must actually see a hand-to-hand exchange.  In Pettegrew, for example, the officer had claimed that he'd seen a male reach inside the car and make a hand-to-hand transaction with the driver, but on cross-examination had conceded that he actually hadn't seen anything exchanged.  That's good enough for the majority in Carmichael; although the officer claimed to have seen an exchange, the court decides that the trial judge simply didn't believe that, which was her prerogative.

But as the dissent points out, the trial judge went further than that;  several of her comments could be taken as an indication that she believed the police were required to show what was exchanged:

It’s not enough to witness a hand-to-hand transaction when you don’t know what’s being transacted *** It’s the exchange of drugs that makes it criminal.  And you’re still allowed to go touch somebody and exchange pencils or aspirin or whatever. *** It was just a hand-to-hand between two human beings, and that’s not enough to base a stop on because they could have been doing anything, including shaking hands.

I like the 4th Amendment as much as the next guy, even if the next guy is William Brennan, but this might be a bridge too far.  There is simply no way that a police officer is going to be able to tell whether it was indeed contraband being exchanged, unless he happened to be there in the car when the exchange took place.

While the opinion in Carmichael doesn't go that far, it can certainly be used by defense attorneys to claim that it does, given the language.  The State can be expected to appeal, but they'll have to have better luck on that than they did in Pettegrew and Toles:  the Supreme Court unanimously denied review in both.

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