One of the most common problems in drug charges seems to be that the underlying reason for the police officer’s contact with the Accused is “bad”—i.e. a “bad stop.” Recently, I have had two such cases, and the issues these stops pose for citizens is interesting, insofar as it demonstrates an encroachment by the police on your rights as a citizen.
“We’ve been having problems off of [Redacted Name of Street], so we are stopping everybody, okay?”
This was the stated justification by an officer for a drug charge traffic stop that resulted in the arrest of one of my clients for possessing 28.6 grams of marijuana.
“I observed a vehicle parked in one of the bays at the car wash on [Redacted Highway Name] with three subjects standing beside it. I made a note that it was 40 degrees and no one appeared to be washing the car. As I turned to check on the vehicle, I observed that the vehicle was pulling away rapidly. I initiated a traffic stop and spoke with the river [sic] of the vehicle.”
This was the stated justification for a traffic stop that resulted in the arrest of one of my clients for possession of drug paraphernalia.
What do both of these reasons for traffic stops have in common?
The justification for both stops supplied by the officer was basically that the actions or location of the Accused was, per the officer, “suspicious.” Being present in an area where police “[have] been having problems,” or parking at a car wash bay and standing outside your vehicle talking to friends—while no one washes the car—were regarded as suspect behavior. Suspicious enough to effectuate a traffic stop so that the cop could check and see what was going on.
However, in both situations above, the basis given by the cop for the stop is insufficient. Meaning, these stops were not legal, in the slightest. And they haven’t been since, oh say, 1979.
It is well settled that “an individual’s presence in an area of suspected criminal activity, standing alone, is not enough to support reasonable, particularized suspicion that a person is committing a crime.” See Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673 (2000). So, my client’s mere presence on a particular street was an insufficient reason to detain him. (Fun fact: He lived off that particular street, so that sort of explains why he might be coming from that area in the first place.)
This makes sense: why should you or I or anyone have our Constitutional rights stripped from us simply because we live or hang out in an area of town some cop believes is “suspicious”? This is to say nothing of the potential hell that would be unleashed if this were not the rule: imagine police being able to stop anyone, anywhere, anytime simply because the location the person happened to be in was “suspicious.”
Merely “looking suspicious” is likewise an insufficient basis for a police officer to stop a citizen. Brown v. Texas, 443 U.S. 47 (1979). I have no idea what is “suspicious” about people standing around a car parked in a self-service car wash bay in the middle of commercial area of town talking. In fact, I see people standing around cars parked at self-service carwash areas nearly every time I drive by one. I have tried to put myself in the shoes of that particular officer, but I cannot fathom what is suspicious about it. Apparently, it was the fact that “no one appeared to be washing the car.” That is was 40 degrees outside wouldn’t seem to matter much towards creating “suspicion”—people wash their cars during cold weather, particularly if the roads have recently been treated for snow and ice (as the chemical used to treat the roads will rust the undercarriage of the car if not washed off periodically.)
If you get why this behavior is suspicious, please let me know, because I have no idea this is “suspect.” Maybe they were about to wash the car…? Maybe they had previously washed the car and had been talking long enough for it to dry…? Maybe they had no intention at all of washing the car, but decided to park in the bay to escape the wind or rain…? Point being, the reasons why the someone might be parked in a self-service, open-to-the-public car wash bay chatting with friends are myriad. And virtually none of them suggest unlawful activity.
Now, you may ask why the Accused “pulling away rapidly” was not sufficient to give the officer a reason to stop him. The answer is simple: if a cop has no legitimate basis to detain an individual in the first place, then the person doesn’t have to sit around and wait for the cop to dream up such a basis. Also, you may be asking why this “flight” wasn’t sufficient to give a basis for the stop. (If you are asking this, chances are you have been to, or are currently enrolled in, law school.) What “flight”? “Flight” implies that the actor is fleeing from something or someone; the officer has no basis to conclude that the Accused “pulled away rapidly” because the Accused saw the cop. In fact, the officer does not even mention or suggest that the Accused saw the cop circle back around—only that, as the officer did so, he saw the Accused already pulling away.
I filed Motions to Suppress in both cases, and, ultimately, both the above cases were dismissed. But the larger point here is that both of these are insufficient basis for stopping and detaining citizens. That the police found drugs or drug paraphernalia in both stops is immaterial. Suppose the police stopped you for one of these reasons, and found nothing. The officer’s actions are still unlawful, and would still have infringed on your right as a citizen to be free from unreasonable searches and seizures.