State v. Harding

Donovan, Presiding Judge,

dissenting.

{¶ 24} I dissent. I believe the bright-line rule adopted by the majority unconstitutionally infringes upon Harding’s Fourth Amendment rights and opens the door to widespread abuse. The majority’s decision represents a complete abandonment of the application of the exclusionary rule in any illegal detention and seizure where a search based upon the later discovery of an outstanding warrant is conducted.

{¶ 25} In favor of espousing a bright-line rule, the majority ignores numerous other state and federal jurisdictions that employ the attenuation test rooted in the United States Supreme Court’s decisions in

Wong Sun v. United States

(1963), 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 , and

Brown v. Illinois

(1975), 422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 . I acknowledge that

Wong Sun

did not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the Supreme Court held that the more apt question in such a case is whether, “granting [proof] of the [initial] illegality, the evidence [at issue was derived] by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

United States v. Green

(C.A.7, 1997), 111 F.3d 515 . The existence of outstanding warrants should not, in every instance, act to deprive an individual of his right to be free from an illegal detention and seizure. Whether the taint has been sufficiently purged depends on the circumstances surrounding a police officer’s reasons for illegally detaining and searching an individual.

{¶ 26} The Supreme Court set out four factors to guide this analysis in

Brown v. Illinois

(1975), 422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 . The four

Brown

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factors are as follows: (1) the temporal proximity of the illegal police conduct and the discovery or acquisition of the disputed evidence, (2) the presence or absence of intervening circumstances, (8) the purpose or flagrancy of the police conduct, and (4) an evaluation of these three preceding factors in light of the policies underlying the Fourth Amendment and the exclusionary rule. 422 U.S. 590, 603 , 95 S.Ct. 2254, 2261-2262 , 45 L.Ed.2d 416 .

{¶ 27} Employing these four factors, a court of appeals in Illinois upheld the suppression of evidence seized pursuant to an illegal detention even though warrants were subsequently discovered. In

People v. Mitchell

(2005), 355 Ill.App.3d 1030 , 291 Ill.Dec. 786 , 824 N.E.2d 642 , appeal denied (2005), 215 Ill.2d 611 , 295 Ill.Dec. 525 , 833 N.E.2d 7 , the defendant, a pedestrian,

was stopped on the street without any suspicion of criminal wrongdoing.

Id., 355 Ill.App.3d 1030 , 291 Ill.Dec. 786 , 824 N.E.2d at 644 . Upon asking for and receiving the defendant’s identification, the police officer discovered an outstanding warrant, arrested him, and pursuant to search subsequent to the arrest, discovered cocaine on the defendant. Id., 355 Ill.App.3d 1030 , 291 Ill.Dec. 786 , 824 N.E.2d at 644-45 . In its analysis, the court found that the third

Brown

factor, regarding the purpose and flagrancy of the officer’s conduct, to be the most significant. Combined with the first factor, the attenuation test dictated that the contraband be suppressed, despite the discovery of an outstanding warrant. Id., 355 Ill.App.3d 1030 , 291 Ill.Dec. 786 , 824 N.E.2d at 649-650 . The court concluded that the evidence was obtained by exploiting the original illegality of the stop and that suppression of the evidence would further the goal of the exclusionary rule, because “it appears to be the only way to deter the police from randomly stopping citizens for the purpose of running warrant checks.” Id., 355 Ill.App.3d 1030 , 291 Ill.Dec. 786 , 824 N.E.2d at 650 .

{¶ 28} In

McBath v. State

(2005), 108 P.3d 241 , an Alaska appeals court employed the attenuation test and held that any taint flowing from a police officer’s illegal detention of defendant was dissipated by the subsequent discovery of outstanding warrants that justified the arrest and search of defendant incident to the arrest. The court held that there was no egregious or flagrant police misconduct, since the officer had a valid reason for asking the defendant for identification, given the release of property seized from the vehicle to the defendant who was a passenger in the vehicle following the arrest of the driver. The court further stated, however, that when evidence was obtained while police officers were executing an outstanding arrest warrant, “the flagrance of the police misconduct may still require suppression of the evidence — as, for example, where the police conducted an unjustifiable ‘dragnet’ investigative stop of many people, hoping to find some for whom there were outstanding arrest warrants.” Id. at 249 .

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{¶ 29} In the case at bar, Officer Coleman clearly stated that his reason for patrolling the DMHA property was to sweep the area for “trespassers.” Officer Coleman testified that his initial reason for stopping Harding was because he observed Harding walking in the grass between two DMHA buildings. Officer Coleman testified that in his experience, trespassers often walked between buildings at the DMHA property in order to avoid detection from law-enforcement officials. First of all, an individual walking in a grassy area between apartment buildings at approximately 10 a.m., without more, does not create a reasonable, articulable suspicion that the individual is engaged in criminal behavior. If that were so, residents and delivery men, for that matter, might be routinely detained and searched. Officer Coleman testified that he did not personally recognize Harding as a known trespasser on DMHA property, nor was he aware that Harding had outstanding warrants for his arrest until after he unlawfully seized Harding, patted him down, and obtained his social security number. Harding was on a public street, not on DMHA property, when Officer Coleman approached him. Throughout the entire encounter, as well as the two pat-downs and ensuing continued illegal detention, Harding was cooperative with all of Officers Coleman and Barnes’s requests. I agree with the trial judge; Officer Coleman had no reason to suspect that Harding was breaking the law in any way. In fact, the evidence suggests that Officers Coleman and Barnes were on a fishing expedition, feeling empowered to make random stops. And this was not just a stop. Harding was almost immediately directed to put his hands in the air and submit to at least two pat-downs prior to the discovery of any warrant.

{¶ 30} As in

Mitchell ,

Officers Coleman and Barnes’s flagrant and impermissible conduct in illegally detaining Harding dictates that the contraband be suppressed, despite the ultimate discovery of outstanding warrants. An analysis to determine whether evidence seized after an illegal detention should be suppressed must involve a balancing of the mutual concerns of discouraging police conduct that results in the illegal detention of a citizen, while recognizing the legitimate interest of the state in enforcing outstanding arrest warrants. I believe that the correct balancing of these competing interests in this instance should result in suppression of the contraband discovered on Harding. The bright-line rule of law espoused by the majority today, rather than discouraging illegal police conduct, encourages police to engage in otherwise impermissible random stops and physical seizures of citizens in hopes that they may discover an outstanding warrant. The law should not hold that the ends justify the means.

{¶ 31} Today’s holding endorses a policy that allows the police to randomly stop individuals and demand that they “show their papers.” Almost any series of indiscriminate seizures is likely to produce some instances of criminality that might otherwise have gone undetected or unprevented. But were hindsight alone

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to furnish the governing criteria, a vital constitutional safeguard of our personal security would soon be lost, particularly for those living in or near impoverished, crime-ridden areas. When we condone random stops like this one for simply “walking in the grass,” we take one more step toward a police state and the complete erosion of civil liberties for all of our citizens, thus permitting overzealous officers to act with arbitrary impunity. “[TJhere is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.”

Arizona v. Hicks

(1987), 480 U.S. 321, 329 , 107 S.Ct. 1149, 1155 , 94 L.Ed.2d 347 .

{¶ 32} To permit a roving patrol conducting random stops in public housing areas for “walking in the grass” would subject the residents of these and other areas to potentially unlimited interference with their freedom of movement and enjoyment of the outdoors in their own communities, solely at the discretion of law enforcement. The Fourth Amendment should not permit this type of conduct by law enforcement, unfettered and unrestricted by the courts.

{¶ 33} Without the unreasonable detention, the officer had no reason to arrest Harding. Without the arrest, there could be no search. Without the search, there was no evidence against Harding. The detention and search being unlawful, the evidence is inadmissible as fruit of the poisonous tree.

Wong Sun v. United States

(1963), 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 . To apply our prior holding in

Click

to these facts “reduces the Fourth Amendment to a form of words.”

Silverthorne Lumber Co. v. United States

(1920), 251 U.S. 385, 392 , 40 S.Ct. 182, 183 , 64 L.Ed. 319 . “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.” Id.

{¶ 34} In light of the foregoing, I would affirm the ruling of the trial court. The bright-line rule of law promulgated in

Click

and its progeny should be abandoned in favor of application of the attenuation test detailed in

Brown v. Illinois,

422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 .