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Hello, Columbus

Let's put you back in the bar exam. Here's the question: cop sees a guy - we'll call him Eric -- walking down the middle of the street at 1:30 in the morning. This is Cleveland Heights, which is notorious for handing out bullshit citations. (Okay, that part wasn't on the exam.) Apparently, it's against the law there to walk in the street if there's an accessible sidewalk, and fortunately crime in the burg has plunged to the point where giving out tickets for that is a worthwhile expenditure of law enforcement assets. Eric is nonetheless fine with it: he's fully cooperative, doesn't make any movements which would give the cop reason to believe he's committing any offense other than - well, walking down the middle of the street when he could be walking on a sidewalk.

Nonetheless, the cop decides to put Eric in the police cruiser while he writes the ticket, and orders him to put his hands on the car so he can frisk him. Eric said he was just walking home, the cop repeated the request, then said it a third time, at which point Eric took off running. The cop chased and caught him, and while he was sitting on top of him asked why he ran. Eric told him he had a gun in his pocket.

What 4th Amendment issues do you see?

Let's let the 8th District's decision last week in State v. Baber take us through it.

First, is the stop valid? No question about it: the law is that "police officers may briefly stop and/or temporarily detain individuals in order to investigate possible criminal activity if the officers have a reasonable, articulable suspicion that criminal activity may be afoot." Here, Baber was walking in the roadway in violation of a city ordinance. As you know from this blog's frequent feature, the Bullshit Traffic Stop of the Week™, it doesn't matter how petty is the reason for the stop. A violation is a violation, and committing one gives the cop the right to make a stop.

That said, stop and frisk are two separate components: a reasonable suspicion of criminal activity allows the stop, but for the frisk to be valid, there must be a reasonable suspicion that the defendant is armed and dangerous. The officer had no reason to believe that Baber was; in fact, the State stipulated at the hearing that, had a patdown been conducted, it would have been illegal.

That was at the hearing, though. On appeal, the state argued that the officer had the right to pat down Baber because he was going to put him in the police cruiser while he wrote the ticket. This has become a rather common police tactic. The Supreme Court held in Mimms v. Pennsylvania that the police could order the occupants out of a vehicle without any further basis than the stop, on the notion that being asked to exit the vehicle was not any additional intrusion on the occupants' privacy. Once they're out of the car, well, gee, what do we do with them? I know, we'll put them in the police cruiser! Of course, before we do that, we have to make sure they aren't armed, because we don't want an armed individual in the cruiser.

Fortunately, "the authority to stop an individual does not necessarily equate to authority to search the individual and place him or her in the back seat of the cruiser. . . it is unreasonable for an officer to search the driver for weapons before placing him or her in a patrol car, if the sole reason for placing the driver in the patrol car during the investigation is for the convenience of the officer." What's nice about Baber is that it suggests that convenience is interwoven with reasonable suspicion: if the officer doesn't have any reasonable suspicion that the suspect is armed, there's no basis for placing him in the cruiser.

So far, then, you have the police intending to make an illegal search, which prompts Baber to run away, which results in the police catching him and finding the gun. The court finds that the intention to make an illegal search renders everything that flows from that suppressible, as a fruit of the poisonous tree.

But we're not done yet, because, as the court explains, there are three exceptions to the "fruit" rule requiring suppression. One is the inevitable discovery doctrine. Let's say, for example, that the police stop a guy for a traffic violation, find out he's got a warrant, arrest him, and search the car, finding drugs. They don't have probable cause, though, and since the driver was taken away it's not a valid search incident to arrest under Arizona v. Gant. But if the police were entitled to tow the vehicle, they would have been entitled to conduct an inventory search, and would have found the drugs anyway, so the evidence isn't excluded.

That obviously has nothing to do with Baber, though, so the court moves on to the next, which is the independent source doctrine. That's what the State argues in Baber: his actions in fleeing from the office "constituted an independent source and provided the officer with the reasonable suspicion to search Baber." But that's not going anywhere; as the court notes,

Baber's flight was not independent from Officer Lasker's illegality; it was directly related. Officer Lasker ordered Baber to submit to an illegal pat-down search of his person, which was the exact reason Baber fled; he wanted to avoid the search.

The third exception to the poisonous tree rule is attenuation. That usually arises in cases involving confessions after an illegal arrest, as it does here: Baber's admission of having the gun. That statement was made while the officer was sitting on top of him, and was obviously the product of the invalid stop. But what if Baber had made the statement the next day, after being advised of his Miranda rights? As the court explains, the attenuation doctrine is based on the idea that the exclusionary rule is intended to deter police misconduct, but does impose costs to society in the form of suppressing otherwise probative evidence; the attenuation doctrine "is an attempt to identify the point in time at which the detrimental consequences of illegal police conduct become so attenuated that the deterrent effect of the exclusionary rule can no longer justify its cost to society." For much the same reason that the independent source doctrine doesn't apply, neither does the attenuation doctrine: Baber's statement is the direct product of his illegal arrest.

This isn't to suggest that the result in Baber is indisputably correct; like almost all 4th Amendment decisions, there are arguments to be made both ways. But it's a well-written, well-reasoned opinion, cogently working its way through a complicated area of law, but without unnecessary frills, and that's about what you want to see.


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