Monthly Archives: August 2013

Search of Car Violates Fourth Amendment

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Anyone who has practiced criminal law, and I’m suspecting many ordinary citizens as well, know the all-to-familiar story where a police officer conducts a routine traffic stop for a relatively minor violation and somehow it turns into a full-blown search of the car.  How does this happen?  Why does failure to use a turn signal at least 100 feet from the turn, or having a broken taillight, eventually result in a felony arrest.  Police normally effectuate the traffic stop with the intent being that he or she ultimately wants to search the car, and they take particular steps to reach that goal.  One of the most common ways the officer gets to search is by obtaining the consent of the driver.  In one of the most confounding questions ever pondered by man, the precise reason that people voluntarily allow the police to search a car in which they have drugs hidden is beyond me.  Nonetheless, it happens all the time.  So, let’s address this issue.

Police have the right to make a traffic stop whenever they witness a traffic violation.  The detention of the driver is a seizure under the Fourth Amendment and therefore is subject to the “reasonableness” requirements.  I.e., the stop can only last as long as is reasonably necessary and must be performed in a reasonable manner.  Once the reason for the traffic stop has ceased to exist (the officer issued the citation), there is no further grounds under which the driver could continue to be detained.  Therefore, the police will have to then show either probable cause to believe that a crime is or has been committed, or at least reasonable suspicion that “crime is afoot” to continue the seizure of the driver in order to investigate.  Or, the police can simply make a request that the driver allow the officer to rummage through their personal property.  Consent is an exception to the Fourth Amendment and the police do not have to have any independent justification.  If you consent, the police are allowed to search, period.

However, what happens when the consent is given only AFTER the police no longer has the right to seize driver, because the traffic citation has been issued and the traffic stop is over? The Second District Court of Appeals correctly ruled that the consent is not valid in State v. White, 2013 Ohio 3027.

The defendant in White was pulled over for a broken taillight after the officer earlier witnessed some unusual behavior on the part of the driver.  A park ranger noticed the defendant sitting in her car in the parking lot of a local metro park.  The officer observed the defendant hunched over the console of the car, and upon her noticing the officer driving by, she popped-up and blurted out a “common epithet.” The decision doesn’t say what epithet she shouted or how the officer possibly heard it from inside his cruiser, but I digress.  The officer then watched as the driver exited the vehicle and walked into the woods, a common endeavor by those that frequent such places.  The officer was nonetheless curious and continued monitoring her behavior.  A short time later she returned to her car and pulled out of the park.  This is when the officer observed that she had a broken taillight and decided it was his chance to pounce.

The officer stopped the vehicle and requested her license and registration.  The officer also called in back-up, who stood on the opposite side of the car, essentially “flanking” the car.  When the information came back that she was valid and had no outstanding warrants, the officer issued her a verbal warning for the taillight – as it was never the reason for the stop to begin with, he wanted to search her and the car.  The officer testified at the suppression hearing that she seemed “nervous,” and her hands were shaking during the stop.  After issuing the warning, he then asked if she would answer a question.  He inquired as to whether she had anything illegal in the car and she responded, “not to my knowledge.” He then asked if he could search the car and she said yes.

The appellate panel held that because her continued seizure was illegal once the traffic stop had been completed, her consent was the product of a Fourth Amendment violation and was invalid.  Therefore, the heroine and marijuana pipe found within the car had to be suppressed. The State obviously argued that under the totality of the circumstances, a reasonable person would have felt free to leave and that she had provided valid consent to search, something people do all the time.

In one of the great myths involved in criminal law, the state loves to argue that a reasonable person would feel free to leave when being asked questions by law enforcement.  Common sense and reality belie this claim as almost no one ever feels comfortable telling an officer to “just move along, nothing to see here, sir.”  And, if someone does ignore an officer, they are usually charged with obstruction of justice or some such nonsense. However, when trial and appellate courts agree that a person “felt free to leave” and could have unilaterally decided the end the encounter with the officer, then there is no seizure under the Fourth Amendment, and no justification is needed to continue to engage the citizen.

In upholding the trial court’s decision to suppress the evidence, the appellate panel cited State v. Ferrante, quoting that “[a] police officer’s request for consent to search a vehicle stopped for a traffic violation is valid if it is made, and voluntary consent is obtained, during the period of time reasonably necessary to process the traffic citation; in other words, while the driver is lawfully detained for the traffic violation.”  If the consent is obtained only after the reason for the traffic stop has ended, as was the case here, the consent is invalid unless the government can then prove that the consent to search was not the product of the illegal seizure, but rather an “independent act of free will.” If the consent is obtained during the time it takes to issue the citation, when the officer has the right to detain the driver, the state need only show that it was voluntarily given and not because they were coerced.

In short, because the police could not point to any objective facts that gave rise to a reasonable suspicion that crime was afoot, once the traffic violation was over, they had no further justification to detain the driver.  The continued detention of the driver was unconstitutional at that point. When the driver then consented, that consent was presumptively invalid unless the state could prove that it was not the product of the illegal seizure, but rather an act of free will.  The trial court found that the consent was in fact the product of the illegal detention and not the driver’s free will.  It found that a reasonable person in this driver’s situation would not have felt free to leave; likely because there were two cruisers involved and the car was ‘”flanked” by the cops.  Would you have felt comfortable saying, “I know you want to ask me some questions, but I’m leaving now, thanks”?  Or, would you have done as every other person does: stay at the scene until the police decide they are done with you?

Here, both the trial and appellate courts understood that this defendant could not have felt free to leave under the totality of the circumstances, and therefore, the consent was invalid.  When the officers had no independent justification to search, the evidence had to be suppressed.  The lesson in all of this is that you should not consent to a search!  Change one fact here or there and this case would have come out a very different way.  In fact, one appellate judge dissented and would have overruled the trial court’s decision to suppress the evidence.

Posted by Charles W. Morrison on August 27, 2013.

Public Service Announcement: Flashing headlights to oncoming cars appears to be legal.

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Have you ever flashed your headlights at an oncoming driver in order to warn them of a possible speed trap ahead?  If your answer is yes, you may be given a ticket for obstruction of justice, as Missouri citizen Michael Eli recently was. These “flashing” laws vary greatly from state to state.  Mr. Eli had his charges dropped by the county prosecutor, but has recently teamed with the ACLU (American Civil Liberties Union) in a class action lawsuit seeking to establish that flashing your headlights is protected speech under the First Amendment.  But what if Mr. Eli had warned drivers while in Ohio?

In Ohio, Mr. Eli would not have faced any charges.  Drivers have already brought individual cases in the past, and courts have ruled the flashing of one’s headlights does not constitute obstruction of justice or obstruction of official business.

In Warrenville Heights v. Wason, the court ruled that:

“flashing headlights to warn oncoming motorists of a radar speed trap is not proven to have obstructed an officer in the course of his duties where there has been no proof that the warned vehicles were actually speeding.” [1]

The Court then went on to say that:

“In order to establish the elements of the offense charged it had to be established that there was an illegal act that generated a police officer’s duty to enforce the law and that defendant interfered with that duty.”[2]

Therefore, unless there is a way to prove that the warned vehicles were actually violating the law, there is no way to establish the grounds for obstruction.

It was even found in Village of Kirtland Hills v. Garcia that a town ordinance against “flashing lights” would not apply to vehicles warning other vehicles about a speed trap or police car ahead. [3] Indeed, many Ohio ordinances outlaw “flashing lights” but this phrase is often construed by the courts to be oscillating “emergency lights” as it will list exclusions to the ordinance as ambulances, emergency vehicles, and snow plows.

Around the U.S.

If you tend to flash your headlights, you may want to look up state and local traffic laws regarding the matter.   In Ohio, Florida, Pennsylvania, Utah, and New Jersey, you can flash away as you won’t be ticketed.  But in states such as Alaska and Arizona, you can be ticketed for just flashing your lights, regardless of if you’re warning oncoming traffic.   These laws vary from state to state, and are increasingly being challenged as violative of First Amendment free speech.

[1] 50 Ohio App. 2d 21 (1976)

[2] Id.

[3] 96 Ohio App.3d 99, 644 N.E.2d 691 (1994)

Police unlawfully searched car passenger’s purse.

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In a great win for the Fourth Amendment, the Second District Court of Appeals upheld a trial court’s ruling that suppressed evidence obtained as the result of the search of a car passenger’s purse.  In State v. Caulfield, the defendant was a front-seat passenger in a car that was pulled over when a member of the Montgomery County, Ohio sheriff’s department noticed the license plate was completely covered in snow and, therefore, obstructed from viewing (which is a no-no).  Upon effectuating the traffic stop, the officer ran the driver’s information through the LEADS system (a database that provides real-time information to law enforcement regarding persons they encounter).  The LEADS system indicated the driver had a suspended license and an active warrant for his arrest.

The officer then arrested the driver on the outstanding warrant and subsequently received his consent to search the vehicle he was driving.  In the meantime, a second officer that had arrived on the scene approached the defendant and instructed her to exit the vehicle so that he may perform the search authorized by the driver’s consent.  When the defendant attempted to bring her purse with her as she exited the car, the officer instructed her to leave the purse inside the car on the passenger seat.  This is common for the police to do, as it is much easier to justify searching objects within a car.

Although the officers testified at the hearing that the defendant had also provided them consent to search her purse, the trial court found the defendant’s contradictory testimony credible, and made a factual finding that she did not consent to the warrantless search.  And, as a lesson to all readers, never provide consent to a search of your property, especially if you know the police are going to find something you would rather they don’t.  And Caulfield’s refusal to provide consent paid off in her case (if she were even asked) – the police ultimately located various drugs and drug paraphernalia in her purse and she was escorted to the pokey in short order.

So, if the trial court found that the defendant had not consented to the search, under what theory did the state appeal the trial court’s ruling?  The state also argued on appeal that the search was lawful as a search incident to arrest of the driver, and that the search was reasonable for “officer safety.”  Under modern Fourth Amendment jurisprudence, if the police effectuate a lawful custodial arrest, they are permitted to perform a search of the person arrested for weapons or contraband, as well as areas within the immediate vicinity of the arrest to ensure the defendant does not grab a weapon or destroy evidence.

The search-incident-to-arrest exception also extends to cars in which arrested persons are or were recently located.  However, the arrested person must actually be able to reach the interior of the car in order for that exception to apply.  Here, the driver was already handcuffed and placed in the police cruiser before the officers searched the inside of his car. It would have been quite a feat for him to grab a weapon from Caulfield’s purse from the back of the cruiser.  Nonetheless, with a straight face, the government actually argued that the search of the purse was necessary for officer safety as they arrested the driver.  Luckily, the appellate panel here correctly followed the Supreme Court’s decision in Arizona V. Gant, which explains that in order to invoke the search-incident-to-arrest exception, the person arrested must actually be able to reach places officers fear may contain a weapon.  Yes, sometimes logic does win out.

There was one final hurdle for the defendant, though: what effect did the driver’s consent to search his car have on the situation? Could that justify the search of the purse?  The answer was obviously no.  The appellate court found that the driver’s consent to search the interior of his car did not extend to the passenger’s purse located within the car (at officer direction, remember).  In order for consent to be lawful, the person providing the consent must have the authority over the area to be searched.  In other words, just as you can’t consent to the search of your neighbor’s house, the defendant’s male accomplice in this case was without authority to provide police consent to search her purse.

In summation, the Second District properly found that no justification existed for the search of an innocent passenger’s purse.  Just because she was riding around with some guy that had an outstanding warrant and failed to properly display his license plate, police cannot simply decide they are going to search her personal property.  I’m sure this was news to the police as they are not used to being told “no,” whether it’s by citizens or courts.

Published by Charles W. Morrison on August 3, 2013.

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