Jackson v. State

CLINTON, Judge,

concurring.

The majority of the Burger Court was wont to quote that refrain from the 1949 opinion of the Supreme Court in Brinegar v. United States which Judge Duncan reproduces and underscores in his opinion of the Court, at page 10. It appears in several opinions written by Justice Rehnquist before his ascension to Chief Justice. See, e.g., Texas v. Brown, 460 U.S. 730, 742 , 103 S.Ct. 1535, 1543 , 75 L.Ed.2d 502 (1983); Illinois v. Gates, 462 U.S. 213, 231 , 103 S.Ct. 2317, 2328 , 76 L.Ed.2d 527 (1983); see also similar treatment in the Per Curiam opinion in Massachusetts v. Upton, 466 U.S. 727, 732 , 104 S.Ct. 2085, 2087 , 80 L.Ed.2d 721 (1984).

What is often overlooked, however, is that Brinegar, like Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925), involved importing intoxicating liquor in an automobile on public highways. A majority of the Supreme Court had no difficulty finding that Carroll had been correctly decided and concluding that there was not “any substantial basis for distinguishing this case from the Carroll case.” Id., 338 U.S. at 176-178, 69 S.Ct., at 1311-1312. That is about the extent of its rationale. 1

Justice Robert H. Jackson, joined by Justices Frankfurter and Murphy, took a different view of the problem. Fresh from Nuremburg, he protested:

“[Fourth Amendment rights] are not mere secondary rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.

.... Since the officers are themselves the chief invaders, there is no enforcement outside of court.”

Id., at 180-181, 69 S.Ct., at 1313. Then for reasons articulated he denounced the opinion of the Supreme Court as a unwarranted extension of Carroll. Id., at 183-188, 69 S.Ct., at 1314-1317. 2

*20 In the instant cause, as I understand the discussion preceding and citation of United States v. Cortez, 449 U.S. 411 , 101 S.Ct. 690 , 66 L.Ed.2d 621 (1981), Maj. opinion, at pages 9-10, the majority is addressing the stop made by Commander Bill Pruitt and Officer Dunny Donovan as a “Terry stop.” See Cortez, supra, at 421-422 , 101 S.Ct., at 697 (test not whether officers had “probable cause to conclude” vehicle would contain aliens, but whether “based on the whole picture, they, as experienced Border patrol officers, could reasonably surmise” vehicle was engaged in criminal activity).

The opinion in Cortez is the first effort by the Supreme Court to expand and apply Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), to an “investigative stop” of moving motor vehicle. In that type of situation the Supreme Court went through an analysis that is not based on the refrain in Brinegai — neither Brinegar nor its followings, most notably Chambers v. Maroney, 399 U.S. 42 , 90 S.Ct. 1975 , 26 L.Ed.2d 419 (1970), are cited in Cortez . Rather than “factual and practical consideration of everyday life on which reasonable and prudent men [act],” the Cortez analysis focuses on “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Id., at 449 U.S., at 417-418 , 101 S.Ct., at 695 . That basis, in turn, contains two elements, the first of which is an assessment based on all the circumstances, viz:

“The analysis proceeds with various objective observations, information from police reports, if such are available and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deduc tions — inferences and deductions that might well elude an untrained person. .... Finally, the evidence thus collected must be seen and weighed ... as understood by those versed in the field of law enforcement.”

Id., at 418 , 101 S.Ct. at 695 .

Thus while peace officers still deal with “probabilities,” the Cortez formulation demands probabilities be assayed not by “considerations of everyday life [acted on by] reasonable and prudent men,” but on all incriminating circumstances as understood by trained peace officers versed in law enforcement. Indeed, in finding probable cause the Supreme Court seems to be moving away from the dogma of Brinegar toward the “particularized suspicion” of Cortez . See Texas v. Brown, supra, 460 U.S., at 742-743 , 103 S.Ct., at 1543 . 3 See also Illinois v. Gates, supra, 462 U.S., at 231-232 , 103 S.Ct., at 2328-2329 .

With those observations I join the judgment of the Court.

. "Both cases involve freedom to use public highways in swiftly moving vehicles for dealing in contraband, and to be unmolested by investigation and search in those movements. In such a case the citizen who has given no good cause for believing he is engaged in that sort of activity is entitled to proceed on his way without interference. But one who recently and repeatedly has given substantial ground for believing that he is engaging in the forbidden transportation in the area of his usual operations has no such immunity, if the officer who intercepts him in that region knows that fact at the time he makes the interception and the circumstances under which it is made are not such as to indicate the suspect is going about legitimate affairs."

Id., 338 U.S., at 176-177, 69 S.Ct., at 1311, (Emphasis mine here and throughout unless otherwise noted.)

. As to whether the officers who pursued and stopped Brinegar were acting out of "considerations of everyday life on which reasonable and prudent men [act],” Justice Jackson provided an insight ignored by the majority, viz:

"I think we cannot say the lower courts were wrong as matter of law in holding that there was no probable cause up to the time the car was put off the road and stopped.... When these officers engaged in a chase at high speeds dangerous to those who participated, and to other lawful wayfarers, and ditched the defendant’s car, they were either taking the initial steps in arrest, search and seizure, or they were committing a completely lawless and unjustifiable act. That they intended to set out on a search is unquestioned, and there seems to be no reason to doubt that in their own minds they thought there was cause and right to search. They have done exactly what they would have done, and done rightfully, if they had been executing a warrant. At all events, whatever it may have lacked technically of arrest, search and sei *20 zure, it was a form of coercion and duress under official authority — and a very formidable type of duress at that.

.... [WJhen a car is forced off the road, summoned to stop by a siren, and brought to a halt under such circumstances as are here disclosed, we think the officers are then in the position of one who has entered a home: the search at its commencement must be valid and cannot be saved by what it turns up. [Citations omitted].

The findings of the two courts below make it clear that this search began and proceeded through critical and coercive phases without the justification of probable cause. What it yielded cannot save it.”

. Thus the officer "possessed probable cause to believe” a balloon contained “an illicit substance" because:

"Maples testified that he was aware, both from his participation in previous narcotics arrests and from discussions with other officers, that balloons tied in the manner of the one possessed by Brown were frequently used to carry narcotics. This testimony was corroborated by that of a police department chemist who noted that it was ‘common’ for balloons to be used in packaging narcotics." In addition, Maples was able to observe the contents of the glove compartment of Brown's car, which revealed further suggestions that Brown was engaged in activities that might involve possession of an illicit substance.”