Anatomy of a search
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%.
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