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Anatomy of a search

traffic stop.jpg

It looked like a run of the mill search case.  The cops see the guy -- we'll call him Doc -- go through a stop sign, pull him over, and find out he doesn't have a valid driver's license.  They get him out of the car, search him, find a little bag of white powder in his pocket, and the arrest for not having a driver's license becomes one for drug possession.  They put him in the cruiser, do an inventory search of the car, and voila:  they find a big bag containing white powder in a milk crate on the front seat.  The End.

But there was a problem with the search.

The problem was that the stop sign violation took place on the street where Doc lived, and he'd pulled into his driveway by the time the cops did the stop.  There are a lot of cases, like this one and this one and this one and this one, holding that the police don't have the right to do an inventory search unless they have the right to tow it, and they don't have the right to tow a car that's legally parked.  And it wasn't a valid search incident to arrest, either:  since the Supreme Court's decision in Arizona v. Gant five years ago (discussed here), the police can't conduct a search of the car's interior once the defendant is secured and unable to reach it.

The legitimacy of the search aside, Doc was in a bad place.  The powder they found in his pocket certainly couldn't be suppressed, but that was less than five grams; Doc was 53, his only felony was a forgery back in 1995, and the judge, despite being a former prosecutor, was unlikely to ship him on a fifth degree felony.  The stuff in the car was another story:  felony one weight, with a mandatory three years in prison.  The State wasn't willing to offer anything more than knocking it down to a felony two and two years mandatory, but I figured I had at least a 50% chance of winning a motion to suppress, so Doc decided to take the shot.

Why only 50%?  Because Gant has a loophole, which the State picked up on:  the cops can still search the interior if "it is reasonable to believe the vehicle contains evidence of the offense of arrest."  That's really just the automobile exception, which allows the police to conduct a warrantless search of a vehicle if they have probable cause to believe it contains contraband or other evidence.  So winning depended upon me showing that finding four grams of coke in my guy's pocket didn't give the cop probable cause to believe there was more in the vehicle.  The fact that the police report showed him relying solely on the inventory exception was helpful, but not dispositive:  the test is what a reasonable police officer would objectively believe, not necessarily what this one subjectively thought.

The cop's testimony on direct at the suppression hearing was pretty straightforward, and tracked the police report.  The prosecutor went into detail about what was found, but left untouched the issue of why the cop searched the car.  That was a reasonable tactical choice:  he could argue the "objective" theory anyway.

I spent a little time cross-examining the officer about the basis of the stop -- after all, if I knock out the stop, everything else goes away -- but just enough to see that wasn't going anywhere, then shifted to my main objective:  to show that he didn't think he had probable cause to search the vehicle.  I had the police report marked, showed it to him, and had him identify it, just to let him know that I had it, and that if he started talking about probable cause as a basis for the search, I could quiz him on why he didn't bother mentioning that in the report. 

I learned from people a lot better at this than I am that the trick in cross-examination is to work indirectly toward your goal; to box the witness in by a series of questions, so that when you get to the key one, he has no choice but to answer it the way you want.  First, I had to establish that he understood the difference between an inventory search and a probable cause search.  "As a police officer, do you get any training in search and seizure?"

"Well, not a whole lot."

"I know.  I read the cases."  I couldn't help that.  Then I spent few minutes having him explain the difference between an inventory search, a search incident to arrest, and an automobile search.  He wouldn't have passed a law school test on them, but showing that he knew the difference between them did well enough for my purposes.

Then I took him back over the stop and the initial encounter with Doc.  Nothing out of the ordinary, right?  No.  Frankly admitted he didn't have a driver's license?  Yes.  So was cooperative with you, right?  Yes.  Not at all evasive, was he?  No. 

"You've heard the phrase 'furtive movement,' haven't you, officer?"

"Yes."

"You didn't see anything like that, did you?  Nothing like he was trying to hide anything as you approached the car, right?" 

What was he going to say?  Doc was fully cooperative, not at all evasive, and the officer had seen nothing out of the ordinary, but all of a sudden he remembers there were furtive movements?  "Right."

"So when you searched his car, it wasn't because you thought you were going to find anything in it, it was just because you were going to tow it and had to do an inventory, right?"

"Right."

"So you didn't believe you had probable cause to search that car, did you?"

"No."

The prosecutor tried to lead him away from that on redirect, but I got him to say it again on re-cross.  The prosecutor did a nice job of arguing the objective/subjective distinction, but that left me with an easy counter.  The key phrase in search and seizure law is "totality of the circumstances."  And here the totality of the circumstances shows that the cop himself didn't believe there were any to justify a search.

Not sure what the judge is going to do with it; he told us he'd let us know next week.  But if we have to go across the street to the court of appeals, I think my chances are a good bit better than 50%.

And it goes to prove something I've long believed:  Cleveland cops get so little training in search and seizure that they don't even know how to lie about it.

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