When is a Seizure a Search? (Kilpatrick)

uexpress.com ^ | 1/28/04 | James J. Kilpatrick

[blitzgig]

WHEN IS A SEIZURE A SEARCH?

Robert Lidster's bad luck was to be in the wrong place at the wrong time. Just after midnight on Aug. 30, 1997, he was driving along a highway in Lombard, Ill., 25 miles west of downtown Chicago. He ran into a police checkpoint -- literally ran into a checkpoint -- and now he's part of the case law construing the Fourth Amendment. The Fourth Amendment protects us from "unreasonable" searches and seizures. The question in Lidster's case is a constantly recurring question before the Supreme Court. Was a given search reasonable or unreasonable? The court's current term already has produced three opinions on search and seizure and a fourth is likely. No part of the Constitution is of greater meaning to more people than the formidable Fourth.

Here the facts were not in dispute. On Aug. 23, a hit-and-run motorist struck and killed an elderly bicyclist. The Lombard police figured that someone who had been arriving or departing from a nearby midnight shift might provide useful information. They set up a roadblock at the site of the accident. As each vehicle reached the checkpoint, an officer would stop it for 15 or 20 seconds, just long enough to hand out a flier requesting assistance in identifying the vehicle and driver.

Along came Lidster in his minivan. As he approached the checkpoint, his van swerved, nearly hitting one of the cops. The officer smelled alcohol on Lidster's breath. A sobriety test led to Lidster's arrest for drunk driving. He was found guilty, fined $200, and ordered to undergo counseling. Subsequently he appealed on the ground that the evidence against him had been obtained through an unconstitutional stop at the checkpoint. The Illinois Supreme Court upheld that argument, but two weeks ago the U.S. Supreme Court reversed and remanded for reinstatement of the verdict.

Justice Stephen Breyer wrote the high court's sensible opinion. "The Fourth Amendment does not treat a motorist's car as his castle." Special concerns of law enforcement may justify highway stops without individualized suspicion. In this case, police were merely seeking information as part of their investigation into a serious crime. True, the involuntary stop amounted to a "seizure" under the Fourth Amendment, but the brief pause was not "unreasonable." The delay was "no more onerous than many that typically accompany normal traffic congestion."

Breyer reiterated the court's guidelines for determining reasonableness. "We look to the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." Here the traffic stops "interfered only minimally with liberty of the sort the Fourth Amendment seeks to protect." The police contact provided little reason for anxiety or alarm.

The high court handed down another sound opinion on Dec. 9 in U.S. v. Lowell Banks. The case arose in North Las Vegas in 1998, when police acted on a tip that Banks was selling cocaine from his apartment. Officers obtained a warrant. They beat on the front door and loudly announced their presence. Getting no response, they waited 15 to 20 seconds and knocked down the door with a battering ram. The search produced three pistols and a stash of rock and crack cocaine. After his conviction Banks appealed.

Banks contended that the forcible entry violated the Fourth Amendment, but he got no help from a unanimous Supreme Court. Justice David Souter ruled that the officers had acted on a "reasonable suspicion of exigent circumstances." After 15 or 20 seconds, they could "fairly suspect that the cocaine would be gone if they were reticent any longer."

Chief Justice William Rehnquist spoke for another unanimous court on Dec. 16 in Maryland v. Joseph Pringle. The case arose in August 1999 in Baltimore County, Maryland. Police stopped a car for speeding. On routine search they found $763 in the glove compartment and five baggies of cocaine in the back seat. The facts added up to probable cause to believe that Pringle was engaged in drug dealing. His conviction was affirmed.

The high court has yet to act on a sniffing dog case from Illinois. Here the question is whether police must have a reasonable suspicion before siccing a drug-detecting dog on a motorist charged merely with speeding. The Illinois Supreme Court said the successful sniff was constitutionally "unreasonable." It's a close question, but I'd come down on the side of the cops.

[an amused spectator]

papierenbitte

All you have to remember is that this is the same club that never apologized for the Dred Scott decision. ;-)