Petition for Writ of Certiorari — Robinson v. United States, (2003) (No. 511)
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03 511. 0CT -35 2003
No.
IN THE
Supreme Court of the United States
TECHNICAL SERGEANT WINCHESTER ROBINSON, JR.,
Petitioner
V.
UNITED STATES OF AMERICA,
Respondent
On Petition for Writ of Certiorari to the
United States Court of Apreals for the Armed Forces
PETITION FOR WRIT OF CERTIORARI
BEVERLY B. KNOTT ANDREW S. WILLIAMS
COLONEL, U.S. AIR FORCE MaAjJor, U.S. AIR FORCE
Counsel of Record Counsel for Petitioner
TERRY L. MCELYEA
Major, U.S. AIR FORCE
Counsel for Petitioner
APPELLATE DEFENSE DIVISION
AIR FORCE LEGAL SERVICES AGENCY
112 LUKE AVENUE, SUITE 343
BOLLING AFB, DC 20032-8000
(202) 767-1562
October 2003
QUESTIONS PRESENTED
I. Whether the good-faith exception to the Fourth
Amendment exclusionary rule should extend to a police
officer’s own faulty conclusion based on a mistake of law
that he had probable cause to make a traffic stop.
II. Whether an automobile’s sudden turn in an urban area
with public housing and high crime is enough to create a
reasonable suspicion that criminal activity is afoot to justify
an investigative stop.
ili
TABLE OF CONTENTS
Page
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CONSTITUTIONAL PROVISION INVOLVED.................. l
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REASONS FOR GRANTING THE WRIT.............0.ccccceee 5
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APPENDIX A
(Opinion of the United States Court of Appeals for
the Armed Forces. 58 M.J. 429 (2003)) ....c.c.ccccsccccesesseees la
APPENDIX B
(Opinion of the United States Air Force Court of
Criminal Appeals. 56 M.J. 541 (A.F. Ct. Crim. App.
I Aik ia sede pesnieinsinnacinndebasiorssniinssneniannsens 38a
Vv
TABLE OF AUTHORITIES
Page
Constitutional Provisions
CF... Coca, Ca, FY casesickccacecsrassensesosessscepnsivsonsnicesnens Lae
Decisions of the Supreme Court of the United States
Beck v. Ohio, 379 U.S. 89 (1964) ........scccscsccsessrreesrssseseeeseenes 6
Brinegar v. United States, 338 U.S. 160 (1949) .......ceceeee 8
Illinois v. Krull, 480 U.S. 340 (1987) .....:ccccccssecseeeeneeeeees 5,8
Ornelas v. United States, 517 U.S. 690 (1996)...........cceeeeeeees 8
Terry v. Ohio, 392 U.S. 1 (1968) .......cesesesrcsresreseessenseeeeens 6
United States v. Leon, 468 U.S. 897 (1984).........ccceceseeeeeeeees 6
Whren v. United States, 517 U.S. 806 (1996) .......cccceeceeeeeeees 6
Military Cases
United States v. Robinson, 58 M.J. 429 (.\() 1,4, 5,6
'nited States v. Robinson, 56 M.J. 541 (A.F. Ct. Crim.
App. 2001) ......00rcrrcccerososvovsessedsereesesensarssssorsssonessossncoses 1,4
Federal Statutes
10 U.S.C. § 867(a)(3)........ sian eile diniaauiantaiesiiesaian I
ZB U.S.C. § 1ZSDB) nccccrecacscecsesssercesccoecsesosonesevenncssoonesennssenonsns l
vi
Other Federal Circuits
United States v. Lopez- Valdez, 178 F.3d 282 (Sth Cir.
POFEPE D wvscusviiennicsncanaessenineddhaatatinibsceiabinnmsdatneddimiateiaiin 7
United States v. Mariscal, 285 F.3d 1127 (9th Cir.
DOE D tsscssinviiansbnkineinaoaeemaiaiennaaielaeliaias 7
United States v. Ramirez-Lujan, 976 F.2d 930 (Sth Cir.
SPONSE) cescvicnsnnstnenioencsenevnsnssiiieeaiiniadineieltaelanaenadaasbaebiaabaianie 7
State Statutes
POM, RGR, GU, DH Ee Cee csewrsviscesasiasniacscnsevsteonsevsncenieniincion 3
State Cases
State v. Riley, 638 So. 2d 507 (Fla. 1994)... ceeesssseeeeeees 3
Other Authority
Jean Johnson, Americans’ View on Crime and Law
Enforcement: Survey Findings, National Institute of
POS TORRE E59 CGE. TOIT) scccnnisievecsvcieresaveninatseseenes 8
The petitioner, Technical Sergeant Winchester Robinson,
Jr., respectfully prays that a Writ of Certiorari issue to review
the order and judgment of the United States Court of Appeals
for the Armed Forces entered in this case.
OPINIONS BELOW
The order and judgment of the United States Court of
Appeals for the Armed Forces, United States v. Robinson, 58
M.J. 429 (2003), is located at Appendix A, la-37a. The
opinion of the United States Air Force Court of Criminal
Appeals, United States v. Robinson, 56 M.J. 541 (A.F. Ct.
Crim. App. 2001), is located at Appendix B, 38a-59a.
JURISDICTION
The judgment of the United States Court of Appeals for
the Armed Forces was entered on July 8, 2003.' The
jurisdiction of this Court is invoked under 28 U.S.C. §
1259(3) and 10 U.S.C. § 867(a)(3).
CONSTITUTIONAL PROVISION INVOLVED
The Fourth Amendment to the United States Constitution
provides in relevant part:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated. . . .
STATEMENT OF THE CASE
On October 8, 1999, the petitioner was tried and
convicted by a general court-martial for assault, using and
possessing cocaine, and failure to obey military orders. At a
' Appendix A, p. la.
2
preliminary session, the petitioner moved to suppress
evidence of his use and possession of cocaine, discovered as
a result of a traffic stop and ensuing searches of the
petitioner and his vehicle. After the trial judge denied the
motion, the petitioner conditionally pled guilty to using and
possessing cocaine, thereby preserving for appellate review
the correctness of the trial judge’s ruling.
During the preliminary session, Officer Mark Jennewein
of the Melbourne, Florida, police department testified that,
on February 27, 1999, he was on patrol in a fully marked
“police car in the city of Melbourne in a public housing area
known for its high crime. While patrolling at about 1:00
a.m., he noticed a maroon four-door Oldsmobile parked “at”
the residence of a known drug dealer.* The Oldsmobile had
a military decal on the windshield. The officer checked the
car’s registration and discovered it was registered to a person
who lived at Patrick Air Force Base, Florida, six miles south
of Melbourne. The officer waited several minutes but left
when he did not see anyone come out to the car from the
house.
About thirty minutes later, Officer Jennewein parked at a
vacant liquor store in a nearby area of town with a high
crime rate. He saw the same Oldsmobile drive by that he
had seen earlier that morning. The officer immediately
pulled out and drove behind the Oldsmobile. Within two to
three seconds, the Oldsmobile braked and turned suddenly
into an alley without using a turn signal. Officer Jennewein
? Officer Jennewein was not clear about where the car was
actually parked in relation to the residence. He testified at
various times that the car was “in front of,” “at Steele [St.]
and Mathers,” “at [IL]’s,” “over at [IL]’s,” “at a house,” and
“right next to his house in his dirt driveway or dirt lot.” The
trial judge found simply that the car was parked “outside” a
known drug dealer’s house.
- ~ _ - —_—-— i aec«s¢«na«,:a:_77_/-,,,72re
3
conducted a traffic stop. He_testified that he made the stop
solely because of the failure to use a turn signal. (R. 76).
After making the stop, the officer had a drug dog sniff
around the car. The dog alerted at the driver’s door. Based
on this alert, Officer Jennewein searched the Oldsmobile and
found a small white rock-like object and other paraphernalia,
which ‘ield-tested positive for cocaine. He placed the
petitioner under arrest.
In his motion to suppress, the petitioner relied upon State
v. Riley, 638 So. 2d 507, 508 (Fla. 1994), a decision of the
Florida Supreme Court holding that the failure to use a turn
signal is not an offense under Florida law when the turn does
not affect other vehicles.”
Officer Jennewein testified that the Oldsmobile’s turn did
not cause him to brake, veer, or otherwise affect his or any
other vehicle. The officer testified, however, that a study
showed that drivers of vehicles that fail to signal when
turning are impaired about 40 percent of the tirae. The
officer testified that he did not see any other indicia of
impairment prior to the stop. He did not state that he made
the stop because he believed the petitioner was impaired.
In denying the motion to suppress, the trial judge
concluded that Officer Jennewein had both probable cause to
believe a traffic violation had occurred and reasonable
suspicion to believe that the petitioner was impaired. The
> Fla. Stat. ch. 316.155(1) (1999) states: “No person may
turn a vehicle from a direct course upon a highway unless
and until such movement can be made with reasonable
safety, and then only after giving an appropriate signal in the
manner hereinafter provided, in the event any other vehicle
may be affected by the movement.” (emphasis added).
4
trial judge did not make any conclusions about whether the
officer otherwise reasonably suspected criminal activity and
the prosecutor did not advance any such theory in opposing
the motion.
On appeal, a divided Air Force Court of Criminal
Appeals disagreed with the trial judge’s conclusion that the
police officer had probable cause to make a stop for the
traffic infraction but upheld the stop because “‘a reasonable
officer aware of these facts would have a lawful basis for a
brief investigative stop.” Appendix B, p. 51a. When the
petitioner appealed further, the United States Court of
Appeals for the Armed Forces affirmed the decision of the
Air Force Court of Criminal Appeals in a 2-1-2 decision.
Two judges—Judges Gierke and Effron—held that Officer
Jennewein had reasonable suspicion to make the stop
because an objective review of the record supported a
finding that the sudden turn was “(1) evasive, (2) an
indicator of impaired driving, and (3) unusual because it was
a sudden turn onto an unpaved alley that was not a
customary roadway.” Appendix A, p. 10a. Chief Judge
Crawford in a concurring opinion admitted that it was “a
close question” whether Officer Jennewein had reasonable
grounds to justify the stop but stated she would affirm
because Officer Jennewein “had a good faith belief that he
had a legally justifiable reasonable suspicion to stop [the
petitioner’s] motor vehicle.” Appendix A, p. 12a (emphasis
added).
Two judges dissented. Judge Baker dissented because the
record did not support the factual conclusions that the
petitioner had parked “at” the drug dealer’s home or that he
* In oral argument, the prosecutor disputed the defense’ s
assertion that the police officer would have made the stop
without observing the traffic infraction and he argued that
the other indicia of suspicion arose after the stop. (R. 157).
5
had driven in an impaired manner or that an objective review
of the record could support a finding of reasonable suspicion
to justify the stop. Appendix A, pp. 19a, 21la-22a. Judge
Erdmann dissented also because he did not agree that an
appellate court could supply the justification for an
investigative stop on grounds of reasonable suspicion when
the officer’s articulated reason for the stop was a mistaken
belief that the petitioner had violated a traffic law. Appendix
A, p. 31a.
REASONS FOR GRANTING THE WRIT
This case presents two questions about the Fourth
Amendment’s reach over the largest area of discretionary
police power and poteritial abuse: the investigative stop.
Because these questions are of fundamental importance to
the administration of criminal justice, they should be
examined by the Court. In submitting the questions, the
petitioner does not challenge the duration of the stop or the
events after the stop that led to the cocaine’s seizure.
The first question concerns whether the good-faith
exception to the exclusionary rule applies to a police
officer’s reliance on his own mistaken understanding of the
law. The question arises because Chief Judge Crawford’s
concurring opinion—an opinion essential to the decision of
the U.S. Court of Appeals for the Armed Forces—did apply
such an exception to this case. This Court, however, has
previously declined the invitation to recognize a good-faith
exception for an officer who erroneously believes he is
acting within the scope of a statute. J//linois v. Krull, 480
U.S. 340, 360 n. 17 (1987) (otherwise recognizing a good-
faith exception when the officer reasonably relies on a statute
and acts within the scope of the statute, though the statute is
later held to be unconstitutional). Because Chief Judge
Crawford’s concurring opinion extended the good-faith
exception to evidence obtained by an officer who acted
6
outside the law, the Court is presented with its first real
occasion to examine the policies of the exclusionary rule as
they relate to such evidence.”
This Court should also examine this question because the
basic rationale of Chief Judge Crawford’s concurring
opinion challenges this Courts Fourth Amendment
jurisprudence from Terry v. Ohio, 392 U.S. 1 (1968), to
Whren v. United States, 517 U.S. 806 (1996). In Terry, this
Court declared that the reasonableness of a particular search
and seizure must be objectively evaluated in light of the facts
available to the officer at the moment of the search and
seizure. Terry, 392 at 21-22. This Court expressly rejected
“simple good faith on the part of the arresting officer” as not
enough, because “[i]f subjective good faith alone were the
test, the protections of the Fourth Amendment would
evaporate, and the people would be ‘secure in their persons,
houses, papers, and effects,’ only in the discretion of the
police.” Jd. at 22 (quoting Beck v. Ohio, 379 U.S. 89, 97
(1964)). Similarly, this Court in Whren stated that its recent
case law foreclosed “any argument that the constitutional
reasonableness of traffic stops depends on the actual
motivations of the individual officers involved.” Whren, 517
U.S. at 813. Chief Judge Crawford’s view, however, is that
a police officer’s subjective intent could make otherwise
illegal conduct \egal or constitutional. Because her view
> Chief Judge Crawford relied on United States v. Leon, 468
U.S. 897 (1984), in her concurring opinion. Appendix A, pp.
15a-16a. In Leon, this Court recognized a good-faith
exception to the exclusionary rule for evidence seized by a
police officer in good faith reliance on a warrant that was
subsequently held to be defective. The Court stated that the
exclusionary rule was intended to deter poiice lawlessness,
not the errors of judges and magistrates. Leon, 468 U.S. at
916. The present case, however, concerns the judgment of a
law enforcement officer acting on his own and not that of a
magistrate.
7
goes contrary to this Court’s declared principles, this Court
should grant review of the first question to resolve the
inconsistency.
Finally, this Court should examine the first question in
order to resolve the conflict among three courts of appeal.
Two circuit courts of appeal have taken a position contrary
to that of Chief Judge Crawford’s. The Fifth Circuit in
United States v. Lopez-Valdez, 178 F.3d 282 (5" Cir. 1999),
refused to apply a good-faith exception to the exclusionary
rule for drugs seized after a stop was made merely because
an officer honestly believed that a traffic infraction had been
committed. But see United States v. Ramirez-Lujan, 976
F.2d 930 (5™ Cir. 1992), cert. denied, 507 U.S. 987 (1993)
(upholding the admission of evidence because the border
patrol agent had a good faith belief that the defendant was
attempting to avoid a checkpoint). Similarly, the Ninth
Circuit in United States v. Mariscal, 285 F.3d 1127 (9 Cir.
2002), held that an officer’s mistaken view of the law in
making a stop cannot be made reasonable when the objective
facts do not support a finding that a traffic violation had
occurred. This Court should grant review of the first
question to resolve the conflict between the courts of appeal
and to settle whether a police officer’s subjective belief can
cure an otherwise illegal stop.
The second question asks whether an automobile’s quick
turn in a high crime area can constitute reasonable suspicion
to justify an investigative stop. The question addresses the
police’s unfettered freedom to infringe on the rights of
citizens who live in and traverse areas with high crime rates.
Officer Jennewein’s conduct in this case—a willingness to
act on nothing more substantial than a hunch—is precisely
the type of indiscriminate harassment and police lawlessness
8
that many Americans frequently complain of.° As Justice
Jackson succinctly stated in Brinegar v. United States: “I am
convinced that there are, many unlawful searches of homes
and automobiles of innocent people which turn up nothing
incriminating, in which no arrest is made, about which courts
do nothing, and about which we never hear. Courts can
protect the innocent against such invasions only indirectly
and through the medium of excluding evidence obtained
against those who frequently sre guilty.” 338 U.S. 160, 181
(1949) (dissenting opinion) (emphasis supplied). Without
the protection of the Fourth Amendment exclusionary rule,
“the liberty of every man [will be] in the hands of every
petty officer.” J/linois v. Krull, 480 U.S. at 363 (O’Connor,
J., dissenting) (quoting James Otis’s argument to the royal
Superior Court in Boston in 1761 against the ancient Act of
Parliament authorizing indiscriminate general searches by
writs of assistance). Few issues are more important to
American society than the amount of power it permits its
police to use without effective control by law. This Court
should grant review of the second question to clarify the
scope of the Fourth Amendment’s proscription against
arbitrary investigative stops by police officers and to
“usefully add to the body of law on the subject.” Ornelas v.
United States, 517 U.S. 690 (1996).
° This is especially true of African-Americans. See Jean
Johnson, Americans’ Views on Crime and Law Enforcement:
Survey Findings, National Institute of Justice Journal 233
(Sept. 1997) (reporting a study by the Joint Center for
Political and Economic Studies in April 1996, which found
that 43% of African-Americans consider “police brutality
and harassment of African-Americans a serious problem” in
their own community).
9 ~
CONCLUSION
For the foregoing reasons, the petitioner respectfully
requests that this Court grant his petition for a Writ of
Certiorari.
Respectfully submitted,
BEVERLY B. KNOTT
Colonel, U.S. Air Force
Counsel of Record
ANDREW S. WILLIAMS
Major, U.S. Air Force
Counsel for Petitioner
‘ TERRY L. McELYEA
Major, U.S. Air Force
Counsel for Petitioner
Appellate Defense Division
oo Air Force Legal Services Agency
112 Luke Avenue, Suite 343
Bolling AFB, DC 20032-8000
(202) 767-1562
October 2003
la
Appendix A
UNITED STATES, Appellee
V.
Winchester ROBINSON, JR., Technical Sergeant
U.S. Air Force, Appellant
No. 02-0148
Crim. App: No. 33925
United States Court of Appeals for the Armed Forces
Argued November 13, 2002
Decided July 8, 2003
GIERKE, J., delivered the judgment of the Court, in which
EFFRON, J., joined. CRAWFORD, C.J., filed a separate
opinion concurring in the result. BAKER and ERDMANN,
JJ., each filed a separate dissenting opinion.
Counsel
For Appellant: Major Jefferson B. Brown (argued);
Lieutenant Colonel Beverly B. Knott and Major Jeffrey A.
Vires (on brief); Lieutenant Colonel Timothy W. Murphy and
Major Terry L. McElyea. ~
For Appellee: Captain Matthew J. Mulbarger (argued);
Colonel Anthony P. Dattilo, Lieutenant Colonel Lance B.
Sigmon, and Captain Christa S. Cothrel (on brief);
Lieutenant Colonel LeEllen Coacher.
Military Judge: Barbara G. Brand
2a
Judge GIERKE delivered the judgment of the Court.
A general court-martial convicted the Appellant,
pursuant to his pleas, of failure to obey a lawful order,
possessing cocaine, using cocaine, and assault, in violation
of Articles 92, 112a, and 128, Uniform Code of Military
Justice [hereinafter UCMJ], 10 U.S.C. §§ 892, 912a, and
928, respectively. Appellant's pleas of guilty to possession
and use of cocaine were conditional pleas, entered in
accordance with Rule for Courts-Martial 910(a)(2). The
adjudged sentence, imposed by a panel of officer and
enlisted members, provides for a bad-conduct discharge,
confinement for six months, and reduction to pay grade E-4.
The convening authority approved the sentence but waived
automatic forfeitures. The Court of Criminal Appeals
affirmed the findings and sentence. United States v.
Robinson, 56 M.J. 541 (A.F. Ct. Crim. App. 2001).
This Court granted review of the following issue:'
WHETHER THE MILITARY JUDGE ERRED
IN FAILING TO SUPPRESS ALL EVIDENCE
OBTAINED AS THE RESULT OF AN
UNLAWFUL STOP AND SUBSEQUENT
SEARCH OF APPELLANT'S AUTOMOBILE.
For the reasons set out below, we affirm the decision of the
Court of Criminal Appeals.
' We heard oral argument in this case at the Washington &
Lee University School of Law, Lexington, Virginia, on
November 13, 2002, as part of "Project Outreach." See
United States v. Mahoney, 58 M.J. 346 n.1 (2003).
3a
Background
At the time of the offenses, the Appellant was assigned to
the 45th Communications Squadron at Patrick Air Force
Base (AFB), Florida. He was a Technical Sergeant (E-6)
with approximately 19 years of active duty.
On the evening of February 27, !999, Officer Mark
Jennewein, a member of the Melbourne, Florida Police
Department, was working the night shift on routine patrol.
Before joining the Melbourne Police Department, Officer
Jannewein had been an Air Force security policeman for
over five years. His last military assignment was at Patrick
AFB. Melbourne is about six miles from Patrick AFB.
Officer Jennewein was patrolling a high-crime area,
known for its drug and prostitution activity, in a marked
police cruiser. He was engaged in "a prostitution and drug
interdiction." At about 1:00 a.m., he noticed a maroon four-
door Oldsmobile parked "right next to [a well-known drug
dealer's] house in his dirt driveway or dirt lot." His computer
check of the license plate number revealed that the registered
owner lived at 95-B Virginia. Officer Jennewein saw a
sticker on the vehicle that identified the registered owner as a
noncommissioned officer assigned to Patrick AFB. Officer
Jennewein observed the car for another 10 or 15 minutes and
then was called away for other duties.
Officer Jennewein continued his patrol and later parked
his car behind a vacant liquor store in another high drug and
prostitution area. Shortly thereafter, he saw the same maroon
Oldsmobile traveling on the roadway. As soon as Officer
Jennewein's marked police cruiser pulled out behind the
Appellant's vehicle, the Appellant quickly made a right turn,
without signaling, into an unpaved alley next to an apartment
complex. The sudden turn did not cause Officer Jennewein
to brake suddenly or swerve. Officer Jennewein testified that
failure to signal a turn is an indicator of impaired driving. He
decided to stop Appellant's vehicle when it made the sudden
ta
turn without signaling. He activated his red and blue lights
and made a traffic stop at approximately 1:30 a.m.
Officer Jennewein approached the Oldsmobile and asked
the Appellant to produce his driver's license, vehicle
registration, and proof of insurance. Appellant fumbled with
his wallet and was able to present his driver's license, but he
was not able to find his registration. and proof of insurance.
Officer Jennewein told him to keep looking for the other
documents. .
There was a passenger in the Appellant's car, who was
"rough" looking, with tattered clothing, and somewhat
emaciated, “like a street person.” The passenger had no
identification, but said he lived in the neighborhood and that
his name was Floyd Simmons. Mr. Simmons said he knew
the Appellant because they had worked together for the last
six months as concrete block masons. Officer Jennewein
checked for outstanding warrants against Mr. Simmons,
determined that there were none, and allowed him to leave.
Officer Jennewein asked the Appellant how he knew Mr.
Simmons, and Appellant indicated they had just met.
After about 10 minutes, the Appellant found his
registration and proof of insurance. Meanwhile, Officer
Duffy arrived in her patrol car as a backup, having heard
Officer Jennewein report the traffic stop on the police radio.
Officer Jennewein noticed that the address on the Appellant's
registration did not match the address on his driver's license.
Officer Jennewein requested a computer check for
outstanding warrants against the Appellant. He was told to
wait because of another request ahead of him. While waiting
for a response, he began writing a ticket for failing to update
the address on the driver's license. He gave Appellant a
“verbal” warning for failing to signal his turn.
Officer Jennewein asked Appellant if he had any drugs or
weapons in his car, and Appellant said he did not. Officer
Jennewein then asked him to consent to a search of his
Sa
vehicle. When Appellant declined, Officer Jennewein
requested that a canine unit be sent to the scene.
Officer Jennewein asked Appellant about the military
sticker on his vehicle, and Appellant responded that he was
in the military. Officer Duffy asked Appellant for his
military identification, and Appellant complied. Officer
Jennewein then noticed that the date of birth on Appellant's
military identification card was different from the date of
birth on his driver's license. Appellant said that the
Department of Motor Vehicles had made a mistake and
would not allow him to correct it.
While conversing with Appellant, Officer Jennewein
noticed an odor of alcohol coming from Appellant's person.
Appellant's speech seemed somewhat "mumbled" and his
eyes were watery and bloodshot.
Officer Jennewein was still writing the citation for the
out-of-date address on the driver's license and still waiting
for the computer check on Appellant when the canine unit
arrived at approximately 1:48 a.m. Officer Jennewein asked
Officer Gary Markowski, the canine officer, t walk the
canine around the car. When Officer Markowski asked
Appellant to move back to avoid interfering with the canine,
he noticed that Appellant "seemed to be a bit slow in his
actions,” and "seemed to be sluggish with his speech and his
movements[.]"
Officer Jennewein advised Appellant that he suspected
him of driving under the influence of alcohol, and he asked
him to submit to a field sobriety exercise. Appellant refused.
Meanwhile, the canine alerted on Appellant's vehicle. Officer
Jennewein advised Appellant that he was being detained
upon probable cause that he had a narcotic substance in his
car. Appellant was handcuffed and placed in the patrol car.
Officers Jennewein and Markowski searched Appellant's
vehicle and found rock cocaine and drug paraphernalia.
Officer Jennewein then informed Appellant he was under
6a
arrest for possession of cocaine as well as driving under the
influence of alcohol. Officer Jennewein testified that he
would have arrested Appellant and searched his car even if
the canine had not alerted.
At trial, Appellant moved to suppress "any and all
evidence, including but not limited to cocaine, urine and
blood tests and results, observations of the police officers,
and military [identification] card obtained as the result of the
unlawful seizure of the accused and resulting search of his
vehicle[.]" The defense argued that there was no probable
cause and "no justifiable or legal reasons for the stop" of
Appellant's vehicle, because the turn without signaling did
not violate Florida law. The defense further argued that the
stop was "unreasonably extended" to conduct a canine search
of the vehicle.
Officer Jennewein did not specifically mention Florida
law in his testimony. He referred to the failure to signal as an
indicator of impaired driving and as a “traffic infraction."
The only references to Florida law were in the defense's
written motion to suppress and in oral argument on the
motion.
The military judge made extensive findings of fact that
comported with the uncontested testimony of Officers
Jennewein and Markowski. Among these findings of fact,
the military judge found, "Officer Jennewein initiated a
traffic stop based upon the failure to properly signal." The
military judge ruled that Officer Jennewein had probable
cause to stop Appellant for a traffic violation when Appellant
braked suddenly and turned without signaling; that, after
making the traffic stop and observing Appellant, Officer
Jennewein had a reasonable suspicion that Appellant was
impaired; that the alert by the canine provided probable
cause to search the vehicle; and that the cocaine and
paraphernalia would have been inevitably discovered even if
the dog had not alerted, because it would have been
discovered during a search incident to arrest.
7a
The military judge also ruled that the duration of the stop
(approximately 21 minutes) was reasonable, based on the
need to run two separate computer checks on Appellant and
his passenger, the delay in receiving the second computer
check because of heavy police activity, the inability of
Appellant to promptly produce his registration and proof of
insurance, and the prompt arrival of the canine unit while
Officer Jennewein was still waiting for the computer check
and stil! writing the citation for the out-of-date address.
The military judge concluded that the Fourth Amendment
was not violated; accordingly, she denied the motion to
suppress.
The Court of Criminal Appeals did not disturb the
military judge's findings of fact or make additional findings
of fact. However, the court held that Officer Jennewein did
not have probable cause to stop Appellant for a traffic
violation, because Florida law requires a turn signal only
when another vehicle is "affected" by the turn,’ and
? The statute provides:
No person may turn a vehicle from a direct sourse
upon a highway uniess and until such movement
can be made with reasonable safety, and then only
after giving an appropriate signal in the manner
hereinafter provided, in the event any other vehicle
may be affected by the movement.
Fla. Stat. ch. 316.155 (2002) (emphasis added).
The *lorida Supreme Court has held that § 316.155 is not
violated by a failure to signal a turn if the turn did not affect
any other vehicle. State v. Riley, 638 So. 2d 507, 508 (Fla.
1994). The Florida Supreme Court's interpretation of state
law is entitled to full faith and credit, “absent some
8a
Appellant's sudden turn without signaling did not affect
Officer Jennewein by causing him to brake or swerve.
However, the court concluded that the facts as found by the
military judge were sufficient to establish reasonable
suspicion sufficient to justify stopping Appellant's vehicle.
Finally, the lower court concluded, as did the military judge,
that the duration of the stop was reascnable.
Discussion
Appellant now asserts that Officer Jennewein stopped his
vehicle under the erroneous belief that he had committed a
traffic violation. He also asserts that the facts were
insufficient to justify an investigative stop, because there was
not enough evidence to establish reasonable suspicion that he
was involved in ongoing criminal activity. Appellant has not
challenged the duration of the stop.
The Government has not challenged the lower court's
holding regarding Florida law. Instead, the Government
argues that the totality of the circumstances were sufficient
to establish reasonable suspicion that Appellant was engaged
in illegal activity. Since the Government does not assert that
there was probable cause for a traffic stop of the Appellant's
vehicle, we limit our discussion to the question whether
Officer Jennewein had reasonable suspicion that Appellant
was engaged in criminal activity.
We review issues involving reasonable suspicion de
novo. Ornelas v. United States, 517 U.S. 690, 699 (1996).
An investigative stop of an individual is permissible under
the Fourth Amendment “where a police officer observes
unusual conduct which leads him reasonably to conclude in
light of his experience that criminal activity may be afoot."
Terry v. Ohio, 392 U.S. 1, 30 (1968). Similarly, an
investigative stop of a motor vehicle is constitutionally
permissible where there is reasonable suspicion that the
prevailing federal interest properly proven." United States v.
Allen, 27 M.J. 234, 239 (C.M.A. 1988).
9a
occupants are engaged in wrongdoing. United States v.
Cortez, 449 U.S. 411, 418 (1981). Based on the totality of
the circumstances, "The detaining officers must have a
particularized and objective basis for suspecting the
particular person stopped of criminal activity." Jd.
The concept of particularized suspicion has two
elements. The first element is that "the assessment must be
based upon all the circumstances." As the Supreme Court
explained:
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 deductions -
inferences and deductions that might well elude
an untrained person.
Id. This process of inferences and deductions "does not deal
with hard certainties, but with probabilities." Jd.
The second element of the particularized suspicion
required is "that the process just described must raise a
suspicion that the particular individual being stopped is
engaged in wrongdoing." /d. The factual basis for reasonable
suspicion must be more than a mere “hunch.” Terry, 392
U.S. at 27. However, it need not rise to the level of probable
cause, and it falls considerably short of a preponderance of
the evidence. United States v. Sokolow, 490 U.S. 1, 7 (1989).
In considering the totality of the circumstances, the
detaining officer may consider a series of acts which are
innocent in themselves, but which, taken together, warrant
further investigation. United States v. Arvizu, 534 U.S. 266,
274-75 (2002). While mere presence in a high-crime area,
standing alone, is insufficient for reasonable suspicion, it is a
“relevant contextual consideration." //linois v. Wardlow, 528
10a
U.S. 119, 124 (2000) (citing Adams v. Williams, 407 U.S.
143, 144, 147-48 (1972)). Unprovoked flight "is not
necessarily indicative of wrongdoing, but it is certainly
suggestive of such." Jd. Evasive behavior is a relevant
consideration. United States v. Brignoni-Ponce, 422 U.S.
873, 885 (1975); United States v. Larios-Montes, 500 F.2d
941, 944 (9th Cir. 1974) (passengers in vehicle appeared to
be trying to hide). The fact that a vehicle appears out of place
is relevant. United States v. Gonzalez, 190 F.3d 668, 672 (Sth
Cir. 1999) (Border Patrol agents who were familiar with
local traffic on isolated road did not recognize vehicle and
noted it had out-of-state license plates). Finally, the time of
day is relevant. /d.; United States v. Lender, 985 F.2d 151,
154 (4th Cir. 1993) (presence in known drug area at 1:00
a.m.); United States v. Knox, 950 F.2d 516, 519 (8th Cir.
1991) (presence in high-crime area late at night).
In this case, Appellant was twice seen by Officer
Jennewein in high crime areas at an unusual time. The first
time Appellant's vehicle was parked in "right next to" a well-
known drug dealer's house. Appellant's vehicle, owned by an
Air Force noncommissioned officer who lived on Patrick
AFB, was out of place. Appellant's presence was sufficiently
unusual that Officer Jennewein kept his vehicle under
surveillance until he was called away by his dispatcher. A
short time later, Officer Jennewein saw Appellant's vehicle a
second time, cruising in a nearby high-crime neighborhood.
As soon as Officer Jennewein pulled out behind Appellant's
vehicle, Appellant made a sudden turn into an unpaved alley.
Even if the turn was not illegal under Florida law, it was (1)
evasive, (2) an indicator of impaired driving, and (3) unusual
because it was a sudden turn onto an unpaved alley that was
not a customary roadway. Considering the totality of the
circumstances, we hold that Officer Jennewein had
reasonable suspicion sufficient to justify an investigative
stop of the Appellant's vehicle.
lla
When we review a military judge's ruling to admit or
suppress evidence, we review the military judge's factfinding
under the clearly-erroneous standard and conclusions of law
de novo. United States v. Sullivan, 42 M.J. 360, 363 (1995).
There was no dispute regarding the predicate facts in this
case. The only litigated issues at trial were Officer
Jennewein's legal authority to stop the Appellant's car and
the duration of the stop.
In this case, the military judge erroneously concluded
that Officer Jennewein had probable cause to stop the
Appellant for a traffic violation. However, the military
judge's error was harmless, because the military judge
reached the correct result, albeit for the wrong reason. We
= agree with the Court of Criminal Appeals that the facts found
by the military judge were sufficient to establish reasonable
suspicion for an investigative stop.
After making the investigative stop, Officer Jennewein
quickly discovered evidence that Appellant had failed to
update the address on his license and that he was driving
while impaired. While Officer Jennewein was writing the
citation for the driver's license violaticn, the canine alerted,
giving him probable cause to search the vehicle. See United
States v. Alexander, 34 M.J. 121, 125 (C.M.A. 1992)
(canine's alert provided probable cause for search). Even
before the dog alerted, Officer Jennewein had already
decided that he had probable cause to arrest Appellant for
driving while impaired. We hold that the military judge did
not err by denying the motion to suppress the evidence
obtained as a result of the investigative stop.’
* Tn light of our holding that Officer Jennewein had
reasonable suspicion to stop Appellant's vehicle, and that the
canine's alert provided probable cause to search the vehicle,
we need not decide whether the military judge correctly
concluded that the evidence would have been inevitably
discovered.
Na ea err
12a
Decision
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
CRAWFORD, Chief Judge (concurring in the result):
The issue of whether the police officer had a reasonable
suspicion that justified making an investigative stop of
Appellant's motor vehicle is admittedly a close question in
this case. Nevertheless, what is clear from the factors
discussed and the analysis set forth by the majority is that the
officer acted with a good faith belief that he had a legally
justifiable reasonable suspicion to stop Appellant's motor
vehicle. Therefore, I would apply the good faith exception to
the exclusionary rule in this case and affirm Appellant's
conviction.
This case presents the issue of whether the exclusionary
rule should apply to evidence seized as a result of an
investigative stop which the officer reasonably, but
mistakenly, believed was a violation of Florida traffic law.
The question of whether to invoke the good faith exception
to a police officer's warrantless stop has divided state and
federal courts. See, e.g., United States v. Ramirez-Lujan, 976
F.2d 930 (Sth Cir. 1992); United States v. Williams, 622 F.2d
830, 840 (Sth Cir. 1980); State v. Greer, 683 N.E.2d 82
(Ohio Ct. App. 1996); but see State v. Deherrera, 965 P.2d
501 (Utah Ct. App. 1998). The Military Rules of Evidence
permit the admission of evidence derived from searches and
seizures that otherwise satisfy the United States Constitution.
See, e.g., Military Rules of Evidence 314(k), 316(f).
The Fourth Amendment provides:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
~ [3a
violated; and no Warrants shall issue, but upon
probable cause, supported by Oath or
affirmation, and particularly describing the place
to be searched and the persons or things to be
seized.
The amendment has two clauses -- the reasonableness clause
and the warrant clause. It has no express provision for a
remedy when evidence is obtained as a result of an illegal
search or seizure. For more than 100 years after the
American Revolution, the remedy for an illegal search or
seizure was a trespass action for damages. In an early
English decision, well known in this country, Entick v.
Carrington, 19 Howell's State Trials 1029 (1765), the police
ransacked Entick's home for four hours to obtain pamphlets
that were highly critical of the king. Lord Camden, Lord
Chief Justice of the Common Pleas, struck down the search
warrant and awarded Entick 300 pounds in damages. He
declared:
This power so assumed by the secretary of
state is an execution upon all the party's papers,
in the first instance. His house is rifled; his most
valuable secrets are taken out of his possession,
before the paper for which he is charged is
found to be criminal by any competent
jurisdiction, and before he is convicted either of
writing, publishing, or being concerned in the
paper.
Id. at 1064.
The same Lord Camden invalidated the general warrants
employed against John Wilkes, per the publication of Issue
No. 45, The North Britons. Wilkes v. Wood, 98 Eng. Rep.
484 (K.B. 1763). Even the early courts in this country
recognized that damages were the appropriate remedy.
If the search warrant were illegal, or if the
officer serving the warrant exceeded his
authority, the party on whose complaint the
warrant issued, or the officer, would be
responsible for the wrong done; but this is no
good reason for excluding the papers seized as
evidence, if they were pertinent to the issue.
Commonwealth v. Dana, 43 Mass. (2 Met.) 329, 337 (1841).
The first move away from the remedy of damages was
signaled in Boyd v. United States, 116 U.S. 616 (1886), in
which the Court excluded documents obtained from Boyd's
house because a "seizure of a man's private books and papers
to be used in evidence against him is [not] substantially
different from compelling him to be a witness” against
himself." Jd. at 633. Justice Bradley derived his conclusion
in part from the following passage in Entick:
It is very certain that the law obligeth no man to
accuse himself; because the necessary means of
compelling self-accusation, falling upon the
innocent as well as the guilty, would be both
cruel and unjust; and it should seem, that search
for evidence is disallowed upon the same
principle. There too the innocent would be
confounded with the guilty.
19 Howell's State Trials at 629.
The remedy the courts eventually formulated, the
exclusionary rule for Fourth Amendment violations, was first
enunciated in Weeks v. United States, 232 U.S. 383 (1914).
Even after Weeks, the state courts resisted the exclusionary
rule. Justice Cardozo questioned whether the "criminal is to
go free because the constable has blundered." People v.
Defore, 150 N.E 585, 587 (N.Y. 1926). He commented that
although a number of states have applied Weeks, more have
15a
rejected it. "With authority thus divided, it is only some
overmastering consideration of principle or of policy that
should move us to change. The balance is not swayed until
something more persuasive than uncertainty is added to the
scales." Id. at 588.
Nevertheless, in Mapp v. Ohio, 367 U.S. 643 (1961), the
Court applied the exclusionary rule to the states. In Mapp,
the Court justified the exclusionary rule by placing emphasis
on "the imperative of judicial integrity." Jd. at 659 (quoting
Elkins v. United States, 364 U.S. 206, 222 (1960)). The
Court reasoned that the government had to play fair and
could not be allowed to profit from illegal acts. Justice Black
believed that the self-incrimination clause of the Fifth
Amendment coupled with the Fourth Amendment justified
the rule. /d. at 661-62 (Black, J., concurring).
The Court identified a second reason for the rule: to curb
police misconduct effectively. As the Court stated, "the
purpose of the exclusionary rule ‘is to deter -- to compel
respect for the constitutional guaranty in the only effectively
available way -- by removing the incentive to disregard it.""
Mapp, 367 U.S. at 656 (quoting Elkins v. United States, 364
U.S. 206, 217 (1960)). The Court emphasized this purpose
again in United States v. Calandra, 414 U.S. 338, 347
(1974), by stating that the exclusionary "rule's prime purpose
is to deter future unlawful police misconduct and thereby
effectuate the guarantee of the Fourth Amendment against
unreasonable searches and seizures[.]"
In United States v. Leon, 468 U.S. 897 (1984), the Court
applied the good faith exception to the exclusionary rule.
Leon, a drug trafficker, was searched pursuant to a "facially
valid" search warrant obtained by the state police. At trial,
the evidence seized by the police was suppressed. The Court
held that the good faith search or seizure by the police
pursuant to a warrant does not require exclusion, even
though probable cause was lacking. The Court commented
that to the extent to which the exclusionary rule has no effect
l6a
on the behavior of magistrates as to the right to privacy, it is
misplaced. "The marginal or nonexistent benefits produced
by suppressing evidence obtained in objectively reasonable
reliance on a subsequently invalidated search warrant cannot
justify the substantial cost of exclusion." Jd. at 922. While
exclusion is certainly warranted where there is a flagrant
violation or a reckless disregard of the facts in a case, the
deterrence rationale does not work when the officer is acting
in good faith, as in this case.
In 1992, this Court adopted Leon in United States v.
Lopez, 35 M.J. 35 (C.M.A. 1992). The Court recognized that
the rationale in Leon "extends with equal force to search or
seizure authorizations issued by commanders who are neutral
and detached[.]" Jd. at 39. In the past, the Courts of Military
Review had been split on applying the good faith exception,
id. at 40, and this Court had not clearly addressed the issue.
We recognized that the good faith exception would not apply
where there is intentional or reckless misconduct by the
police, or where the basis for the action was totally lacking,
and thus was unreasonable. Jd. at 41-42. In this instance,
there was not a flagrant disregard of the stop rule or
unreasonable conduct.
With this background, I now turn to the question of
whether and under what circumstances the good-faith
exception to the exclusionary rule can and should apply to a
warrantless investigative stop by a police officer.
The defendant in Greer was seen by the police officer
turning left into a cross-over area without using the left-turn
lane provided and then went in the other direction. The
officer stopped him for what appeared to be an illegal U-
turn, but the Court, interpreting the state's statute, stated the
officer's conclusion that it was an illegal U-turn may have
been mistaken, yet the Court held that the stop was not
unreasonable and applied the good-faith exception to a stop
"based upon conduct observed by the officer that the officer
mistakenly, but reasonably, believes to constitute a violation
17a
of law." 683 N.E.2d at 83. The stop in Greer was a "minor
transgression," and not an intentional or flagrant illegality.
Id. at 86.
The Fifth Circuit Court of Appeals has applied the good-
faith exception to an investigatory stop in Ramirez-Lujon.
Ramirez-Lujon was seen by a border patrol agent some 35
miles from the border, 25 miles east of El Paso, Texas,
traveling on what was considered "a road to nowhere." 976
F.2d at 931. Drug smugglers were knowi to use this road to
proceed to a known drug distribution center. A border patrol
agent with three years' experience knew the locals who lived
down that road. When he saw Ramirez-Lujon's pick-up
truck, he did not recognize it as a vehicle belonging to one of
the ranchers who lived on the road and decided to
investigate. After tullowing the vehicle for some four miles,
he decided to make a stop.
The court upheld the stop, based either on "the
constitutional test of reasonableness or the good-faith
exception." Jd. at 933. The court held that “under all the
circumstances, [the border patrol agent] acted with an
objectively reasonable good faith belief that he had a
reasonable articulable suspicion that legally justified
stopping Ramirez[-Lujan]." /d. at 934. The court decided not
to address the constitutionality of the stop because it "was
sufficiently justified under the good-faith exception." Jd. at
934 n.4.
The rationale in Greer and Ramirez-Lujon applies to this
case. The majority holds that there was reasonable suspicion
to stop Appellant.
Appellant was twice seen by Officer Jennewein
in high crime areas at an unusual time. The first
time Appellant's vehicle was parked in "right
next to" a well-known drug dealer's house.
Appellant's vehicle, owned by an Air Force
noncommissioned officer who lived on Patrick
18a
AFB, was out of place. Appellant's presence was
sufficiently unusual that Officer Jennewein kept
his vehicle under surveillance until he was
called away bv his dispatcher. A short time later,
Officer Jennewein saw Appellant's vehicle a
second time, cruising in a nearby high-crime
neighborhood. As soon as Officer Jennewein
pulled out behind Appellant's vehicle, Appellant
made a sudden turn into an unpaved alley. Even
if the turn was not illegal under Florida law, it
was (1) evasive, (2) an indicator of impaired
driving, and (3) unusual because it was a sudden
turn onto an unpaved alley that was not a
customary roadway. Considering the totality of
the circumstances, we hold that Officer
Jennewein had reasonable suspicion sufficient to
justify an investigative stop of the Appellant's
vehicle.
_. M.J. (11-12). Considering all the facts set forth by the
majority, it is clear that Officer Jennewein had an objectively
reasonable suspicion that Appellant was engaged in criminal
activity. Certainly, there was more than one basis for the
stop--the fact that one theory was precluded by the Florida
statute does not preclude the application of the criminal
misconduct theory under these facts.
Rejecting the exclusionary rule in this case would neither
denigrate Fourth Amendment values nor complicate the right
to privacy because this is not a question of police
lawlessness. Certainly, deterrence of police misconduct is
not necessary in a borderline case like this, where the officer
has acted reasonably and in good faith. The courts have
applied a reasonableness standard as to apparent authority,
see Illinois v. Rodriguez, 497 U.S. 177 (1990) (third-party
consent); Winters v. Adams, 254 F.3d 758 (8th Cir. 2001)
(reasonable to detaim agitated occupant of parked car who
police suspected may be overdosing); Gallegos v. Colorado
19a
Springs, 114 F.3d 1024 (10th Cir. 1997) (reasonable to stop
and check distraught person walking in the middle of the
street), and many other exceptions to the Fourth Amendment
such that it would be incongruous not to apply it here.
California v. Acevedo, 500 U.S. 565, 580 (1991) (many
reasonableness exceptions to the Fourth Amendment).
Whether the exclusionary rule is based on judicial
integrity, see, e.g., Olmstead v. United States, 277 U.S. 438,
470, 484 (1928) (Holmes and Brandeis, JJ., dissenting), or
the deterrence of police misconduct, Terry v. Ohio, 392 U.S.
1, 13 (1968), neither justification would require suppression
in this case.
A "police officer will not be deterred from an illegal
search if he does not know that it is illegal." Charles Alan
Wright, Must the Criminal Go Free if the Constable
Blunders?, 50 Tex.L.Rev. 736, 740 (1972). Because the
officer's action in this case was reasonable, I would not apply
the exclusionary rule and would affirm Appellant's
conviction.
BAKER, Judge (dissenting):
I agree with the majority that an officer would have
reasonable suspicion to justify an investigative stop of a
vehicle where the totality of circumstances indicated that a
vehicle had been parked briefly in the early nyorning hours in
the driveway of a house known to be used for drug dealing,
and that it was thereafter driven in a manner indicative of
impaired driving. However, because I do not believe the
facts articulated on the record in this case support such a
conclusion, I respectfully dissent. In light of the factual
deficiencies in this case, I need not address Judge Erdinann's
fair concern regarding whether an appellate court coul/
justify an investigatory stop on grounds of reasonable
suspicion where the officer's articulated reason for the stop
was a mistaken belief that Appellant had violated the law.
20a
| My analysis begins with United States v. Sokolow, 490
U.S. 1, 7 (1989), in which the Supreme Court expanded on
Terry stating:
In Terry v. Ohio, we held that the police can
stop and briefly detain a person for investigative
purposes if the officer has a _ reasonable
suspicion supported by articulable facts that
criminal activity "may be afoot," even if the
officer lacks probable cause.
The officer, of course, must be able to
articulate something more than an "inchoate and
unparticularized suspicion or ‘hunch. The
Fourth Amendment requires “some minimal
level of objective justification" for making the
stop.
Id. at 7 (citations omitted). Thus, reasonable suspicion
includes both subjective and oojective components -- an
officer's reasonable suspicion based on articulable facts
objectively reviewed.”
* This case is different from Whren v. United States, 517
U.S. 806 (1996). In Whren, the issue was whether a court
should look beyond an officer's articulated reasons for
making an investigatory stop in determining whether
reasonable suspicion existed for the stop. Whren did not
address the question posed here: whether an investigative
stop can be upheld under the Fourth Amendment if an
ovjective review of the record supported a finding of
reasonable suspicion, despite the fact that the officer did
not articulate those reasons as the basis for the stop and
the articulated basis for the stop was unreasonable.
The Court of Criminal Appeals applied a purely
objective standard of reasonableness in determining that
Officer Jennewein had reasonable suspicion to stop
2la
In my view, the Fourth Amendment analysis in this case
hinges on Officer Jennewein's articulation of two factual
questions: where was Appellant's car parked and did
Appellant drive his car in an impaired manner?
First, in what manner was Appellant's car "at" the house
of a known drug dealer, IL? Was it parked in the driveway,
on the street specifically in a manner associated with IL's
house or on the street as any other car might have been?
Officer Jennewein's testimony is not clear on this point.
Appellant's car is characterized at various points in the
record as "in front of," "at Steele [St.] and Mathers," “at
[IL]'s," “over at [IL]'s," "at a house," and "right next to his
house in his dirt driveway or dirt lot." In an urban
environment the factual distinction between parking on the
street or in a driveway can reflect the difference between
particularized suspicion and inchoate suspicion. In the
abstract, there is a significant difference between being
parked in a "bad crime" driveway, and being parked in a
"bad crime" neighborhood, which the Supreme Court has
Appellant, based on language in Whren indicating that
“subjective intentions play no role in ordinary, probable
cause Fourth Amendment analysis." United States v.
Robinson, 56 M.J. 541, 545 (A.F. Ct. Crim. App. 2001)
(citing Whren, 517 U.S. at 813). The court looked at all
the facts available to Officer Jennewein and concluded
that "a reasonable officer aware of these facts would have
a lawful basis for a brief investigative stop." Jd. at 548.
However, this approach mischaracterizes the holding of
Whren. Whren did not alter the fundamental requirement
that officers c. ducting investigative stops must
articulate facts that support reasonable suspicion. If
officers were not required to articulate some basis for the
stop, courts would be left to "speculate about the
hypothetical reaction of a hypothetical constable,” an
approach rejected by the Supreme Court in Whren as
unworkable. Whren, 517 U.S. at 815.
22a
held, does not in itself provide reasonable suspicion to justify
an investigative stop. Jllinois v. Wardlow, 528 U.S. 119, 124
(2000); Brown v. Texas, 443 U.S. 47, 52 (1979). Nor did the
Government move this testimony from the abstract to the
specific by either reconciling the different testimonial
statements regarding the location of Appellant's car or by
showing with a map or photograph where Appellant's car
was parked, thereby indicating how parking on the street
necessarily connected Appellant's car with IL's house. The
Government also did not clarify this discrepancy at oral
argument, despite persistent questioning from the judges.
Moreover, the record does not provide a sufficient factual
basis to otherwise infer suspicion from street parking alone.
Second, did Appellant demonstrate indicia of impaired
driving and did Officer Jennewein articulate suspected
impairment as a basis for stopping Appellant? Here too, the
record is amorphous. This may reflect the fact that the
Fourth Amendment search was argued at trial under the
probable cause rubric based on Appellant's (lawful) failure to
signal. On appeal, the Government now finds itself arguing
an alternative, less developed, theory of reasonable
suspicion.
On the one hand, impairment is certainly in the air at the
appellate level. Officer Jennewein testified about his training
in identifying impaired drivers. Officer Jennewein testified
that the failure to signal a turn and other kinds of conduct
such as “accelerating, decelerating, swerving in another lane
of traffic, wide turn, failure to signal, reckless driving,
driving without headlights, [and] erratic braking[,]" are
factors suggestive of impaired driving. Officer Jennewein
also testified that he would not have followed Appellant's
vehicle if he had not previously seen the vehicle parked in
some manner adjacent to IL's house.
On the other hand, Officer Jennewein, never fully
delivers the punch line by expressly stating that he stopped
Appellant's car on account of his suspicion that the driver
23a
was impaired. Moreover, on three separate occasions he
testified that the sole reason he stopped the vehicle was
failure to properly use the turn signal. Such language does
not preclude the possibility that Officer Jennewein was
motivated by a concern over impaired driving--the failure to
signal being merely the final indicator of impairment--but
neither is it a clear articulation of reasonable suspicion of
impairment as the predicate for Appellant's stop.
Significantly, the military judge found that the officer
"initiated" his stop of the car because Appellant failed to
signal -properly. The military judge, having heard the
testimony of the officer regarding his training, could have
found suspected impairment as part of the officer's reasons
for stopping Appellant's vehicle, but she chose not to make
such a finding. For sure, the military judge may have omitted
such a finding because she found it unnecessary given her
conclusions that probable cause existed for violation of the
statute. However, determining whether the military judge
rejected the finding of impairment or simply found it
unnecessary to reach would be appellate speculation.
In the absence of probable cause for failure to signal, the
Government was left on appeal to stand on two factual legs
of a reasonable suspicion ladder: the presence of Appellant's
vehicle adjacent to a known drug dealer's house and indicia
of impaired driving. Neither leg was clearly articulated in the
record of trial. In my view, when the uncertainties in both
legs are considered together, the record does not move from
an inchoate to a particularized showing of suspicion required
by the Terry/Sokolow line of cases. Something more
particularized than the presence on a street with a house used
for drug dealing and bad, but lawful driving, must be
articulated to warrant an investigative stop. The Government
might have articulated additional relevant facts at trial if it
had known its ultimate appellate posture, but that is rot the
record we have on appeal.
24a
ERDMANN, Judge (dissenting):
I agree with the majority's initial finding that Officer
Jennewein lacked probable cause to initiate a traffic stop of
Appellant's car, based on his mistaken belief that a traffic
violation had occurred. In affirming the Air Force Court of
Criminal Appeals, however, the majority goes on to find that
the detaining officer had reasonable suspicion to justify an
investigatory stop of Appellant's vehicle, i.e., "reasonable
suspicion" that the occupants were engaged in wrongdoing. I
dissent from both the analysis utilized by the majority and
from the finding that the facts known to the officer at the -
time of the stop rose to the level of reasonable suspicion. I
would reverse the Air Force Court of Criminal Appeals.
The initial traffic stop in this case was made by Officer
Jennewein solely because Appellant failed to signal when he
turned his car into an alley. After the stop a canine unit
called by Officer Jennewein alerted on the car and following
a consensual search, cocaine was discovered. Appellant was
subsequently charged with possession and use of cocaine,
amongst other charges. At a proceeding pursuant to Article
39, Uniform Code of Military Justice, 10 U.S.C. § 839
(2000), Appellant contested the admission of the seized
evidence, arguing that the initial stop was in violation of the
Fourth Amendment. The military judge found no Fourth
Amendment violation, ruling that Officer Jennewein had
probable cause to stop Appellant for a traffic violation.
Appellant subsequently entered a conditional plea of guilty
to the possession and use of cocaine specifications.
The Air Force Court of Criminal Appeals found that
under Florida law there was no probable cause to believe that
a traffic violation had occurred, which rendered the stop in
violation of the Fourth Amendment. The lower court
rejected, however, Appellant's argument that the evidence
derived from the stop must be suppressed. Seeking an
alternative basis to uphold the initial stop under the Fourth
Amendment, the Air Force court went on to "determine
25a
whether there is some other basis in the law for the stop and
the resulting searches that led to the evidence of the use and
possession of cocaine." United States v. Robinson, 56 M.J.
541, 544 (A.F. Ct. Crim. App. 2001). A divided Air Force
Court found that, despite the initial illegal stop based on the
traffic violation, the stop was reasonable under the
circumstances and the evidence was admissible.
Because Officer Jennewein testified that he made the
stop based only on the suspected traffic violation, the Air
Force Court adopted an analysis that allowed them to move
beyond the officer's stated reason for the stop and determine
whether a "reasonable officer" would have had "reasonable
suspicion" for the stop. The lower court relied on Whren v.
United States, 517 U.S. 806 (1996), for the proposition that
the subjective intentions of the detaining officer are
irrelevant to a Fourth Amendment analysis. In my view,
Whren is inapposite and provides no basis for seeking an
alternate finding of reasonableness after an invalid or
unlawful traffic stop. The majority opinion suffers this same
delict: there is no transitional analysis supporting an
appellate court's authority to search for some other basis to
uphold the stop after determining that the only articulated,
record basis for the stop was unlawful.
As a general matter, the decision to stop an automobile is
reasonable where the police have probable cause to believe
that a traffic violation has occurred.' Whren, 517 U.S. at
810. It is important to note that the Court in Whren was
dealing with a case where the legality of the initial stop was
not in question and in fact was not even challenged on
appeal. In Whren District of Columbia police became
' The cases in this area reference both the "probable cause"
standard and "reasonable suspicion" standard. In this context
the "probable cause" standard is applied when the officer has
reason to believe that an offense has occurred while the
"reasonable suspicion" standard is generally applied when
the officer believes that criminal activity "may be afoot."
26a
suspicious of the defendant's car due to its temporary license
plates, youthful occupants and the fact that the driver
remained stopped at an intersection for what seemed to be an
unusually long time while looking down into the lap of the
passenger.” The police then observed the car turn suddenly
without signaling and drive off at an "unreasonable" speed,
activity that constituted valid traffic violations. The police
executed a stop based on the traffic violations and observed
two large plastic sacks of crack cocaine in Whren's hands.
The defendants argued that the police did not have
probable cause or even reasonable suspicion to believe that
they were engaged in an illegal drug activity and that the
officer's asserted ground for the stop - to give the driver a
warning concerning the traffic violations - was pretextual.”
The Supreme Court found that the subjective intent of the
officers does not play a role in an ordinary probable cause
Fourth Amendment analysis. The Sixth Circuit later
described Whren as holding that "an officer may stop a
vehicle for a traffic violation when his true motivation is to
search for contraband, as long as the officer had probable
cause to initially stop the vehicle." United States v. Hil’, 195
* It is difficult to conclude that these facts, standing alone,
would rise to the level of "reasonable suspicion" that
criminal activity is afoot.
> On appeal the defendants did not dispute that the traffic
violations constituted probable cause to support the stop.
Rather, they argued that, "in the unique context of civil
traffic regulations," probable cause was not enough. United
States v. Whren, 517 U.S. 806, 810, 135 L. Ed. 2d 89, 116 S.
Ct. 1769 (1996). Specifically they argued that a higher
standard was required to deter the pretextual use of traffic
stops as a means of investigating other violations of the law
as to which no probable cause or even articulable suspicion
exists. Id.
27a
F.3d 258, 264 (6th Cir. 1999), cert. denied, 528 U.S. 1176
(2000). .
The Supreme Court in Whren quoted Scott v. United
States, 436 U.S. 128 (1978), for the principle that "subjective
intent alone . . . does not make otherwise lawful conduct
illegal or unconstitutional." 517 U.S. at 813 (emphasis
added). Whren simply stands for the principle that an officer
may legally stop a vehicle after observing suspicious
behavior that does not rise to the level of "reasonable
suspicion," as long as there is probable cause to believe there
has been a traffic violation.
If failing to signal a turn under the circumstances
presented in this case had in fact been a valid traffic violation
in Florida,’ then the fact that the officer's real motivation for
the stop may have been suspicion of drug activity would not
have invalidated the seizure or subsequent search as the
officer would have had probable cause to make the traffic
stop. Those, however, are not the facts of this case. There is
no dispute that Florida law does not prohibit a turn without
Signaling under the circumstances found here and that
Officer Jennewein made the stop based on a mistake of law.
In United States v. Miller, 146 F.3d 274 (Sth Cir. 1998),
police stopped the defendant after he drove his motor home
through an intersection with his turn signal on, without
changing lanes or turning. The police found marijuana in the
motor home as the result of a subsequent consensual search,
but it was later determined that flashing a turn signal without
turning or changing lanes was not a violation of Texas law.
In finding that the evidence was not admissible, the Fifth
Circuit stated:
* There is no evidence in this case that Officer Jennewein
made the stop based upon a suspicion of illegal drug activity.
He testified conclusively that the only reason for the stop
was the traffic violation.
28a
The rule articulated by the Supreme Court in
Whren provides law enforcement officers broad
leeway to conduct searches and _ seizures
regardless of whether their subjective intent
corresponds to the legal justifications for their
actions. But the flip side of that leeway is that
the legal justification must be objectively
grounded. See Whren, 116 S. Ct. at 1774; see
also Goodwin v. Johnson, 132 F.3d 162, 173
(Sth Cir. 1998) ("So long as a traffic law
infraction that would have objectively justified
the stop had taken place, the fact that the police
officer may have made the stop for a reason
other than the occurrence of the traffic infraction
is irrelevant for purposes of the Fourth
Amendment." (emphasis added)). Here, given
that having a turn signal on is not a violation of
Texas law, no objective basis for probable cause
justified the stop of Miller.
146 F.3d at 279 (footnote omitted).
In United States v. Lopez-Valdez, 178 F.3d 282 (Sth Cir.
1999), the Fifth Circuit again addressed this area where an
officer mistakenly stopped a car for an improper taillight.
Although the officer thought in good faith that the broken
taillight constituted a traffic infraction the court held that
there was no probable cause for the stop. The government
argued that the drugs seized as a result of the stop should be
admitted under the good-faith exception to the exclusionary
rule, but the Court disagreed:
Under the general rule established in Whren, a
traffic infraction can justify a stop even where
the police officer made the stop for a reason
other than the occurrence of the traffic
infraction. See Goodwin v. Johnson, 132 F.3d
162, 173 (Sth Cir. 1998). But if officers are
29a
allowed to stop vehicles based upon their
subjective belief that traffic laws have been
violated even where no such violation has, in
fact, occurred, the potential for abuse of traffic
infractions as pretext for effecting stops seems
boundless and the costs to privacy rights
excessive. Accordingly, we hold that [the
officer's] actions do not pass muster under the
good-faith exception to the exclusionary rule.
178 F.3d at 289.
In United States v. Mariscal, 285 F.3d 1127 (9th Cir.
2002), a case remarkably similar to the underlying facts of
this case, police were conducting an undercover surveillance
of a residence and a vehicle parked at the residence. They
observed the car pull away from the house and make a right
turn without using mechanical or hand signals. A traffic stop
was made based on the failure to signal a turn. A subsequent
search of the car revealed a concealed weapon and one of the
occupants admitted that the gun was his and that he was in
the country illegally. Relying on a long line of Ninth Circuit
authority, the court stated:
If an officer simply does not know the law, and
makes a stop based upon objective facts that
cannot constitute a violation, his suspicions
cannot be reasonable. The chimera created by
his imaginings cannot be used against the driver.
So, when an officer thought that a Baja
California vehicle registration statement had to
be visible from the rear, whereas the Baja
California law required that it be on the upper
right corner of the windshield, the officer's
mistaken belief could not "justify the stop under
the Fourth Amendment." United States v. Lopez-
Soto, 205 F.3d 1101, 1106. Similarly, when an
officer thought that Michigan required cars to
30a
have two license plates, but it indeed only
required one, a stop based on the two-plate
theory was not based on reasonable suspicion.
United States v. Twilley, 222 F.3d 1092, 1096.
Simply put:
A suspicion based on such a mistaken view
of the law cannot be the reasonable suspicion
required for the Fourth Amendment, because
"the legal justification [for a traffic stop] must
be objectively grounded." In other words, if an
officer makes a traffic stop based on a mistake
of law, the stop violates the Fourth Amendment.
_ Id. (citations omitted); see also United States
v. King, 244 F.3d 736, 741-42 (9th Cir. 2001) (a
mistaken belief that a driver's conduct violated
the law could not support a reasonable suspicion
that a crime had been committed, even if the
officer otherwise behaved reasonably).
285 F.3d at 1130.
While it is clear under Whren that evidence seized as the
result of a pretextual, although otherwise legal, traffic stop is
admissible, the issue here is whether Whren provides
authority for an appellate court to uphold admitting evidence
s-ized subsequent to an illegal traffic stop on the basis that
the stop was a lawful investigative stop based on reasonable
suspicion. Clearly it does not. The general rule is that if an
initial stop violates the Fourth Amendment, the evidence
seized as a result of the stop is subject to suppression. United
States v. Childs, 256 F.3d 559 (7th Cir. 2001).
Although the majority opinion does not provide the legal
basis for their analytical transition from the initial illegal stop
to the “reasonable suspicion" review, the danger in both its
approach and that of the Air Force Court is that an officer
can use an illegal traffic stop with impunity as long as an
alternative theory for admissibility of the evidence can later
3la
be developed. As noted in Lopez-Valdez, 178 F.3d at 289, if
a subjective but mistaken belief that a traffic violation has
occurred is all that is required, "the potential for abuse of
traffic infractions as pretext for effecting stops seems
boundless and the costs to privacy rights excessive." Further,
once the illegal traffic stop is made there is a natural
tendency to utilize the events and evidence discovered after
the stop to justify the initial stop, as evidenced by the extent
to which those facts are exhaustively discussed the decisions
of both Court of Criminal Appeals and the majority opinion.
There is something troubling about a concept where the
initial police action violates the Fourth Amendment but an
appellate court later develops a theory which allows the
admission of the evidence. In upholding the admission of
evidence seized subsequent to an illegal traffic stop on the
basis that the stop was a lawful investigative stop based on
reasonable suspicion, the majority extends that concept
further than any reported court decision. I would hold that
under the Fourth Amendment the admission of the evidence
is not allowable and would reverse the court below on that
basis. ;
However, even if the traditional analysis were applicable
to this situation, I would find a lack of "reasonable
suspicion." Absent a warrant or probable cause to believe
that an occupant has committed or is committing a crime,
including a traffic violation, a law enforcement officer may
lawfully stop a vehicle when the officer has a reasonable,
articulable suspicion that criminal activity is afoot involving
the vehicle. An "officer must be able to articulate more than
an inchoate and unparticularized suspicion or hunch of
criminal activity." [/linois v. Wardlow, 528 U.S. 119, 123-24,
145 L. Ed. 2d 570, 120 S. Ct. 673 (2000) (quoting Terry v.
Ohio, 392 U.S. 1, 27 (1968) (internal quotation marks
omitted)).
The majority sets forth three grounds in support of their
finding of "reasonable suspicion:"
32a
Appellant was twice seen by Officer Jennewein
in high crime areas at an unusual time.
Actually, Appellant was not seen twice by Officer
Jennewein. The officer initially noticed a parked maroon
four-door Oldsmobile that was registered to the Appellant.
However, he did not see the Appellant or anyone else in the
car and he had no idea who was driving the car. The record
is unclear as to where the car was parked, other than the fact
that it was parked in the vicinity of a "known crack-house."
At the Article 39(a) hearing, Officer Jennewein testified
inconsistently as to exactly where the car was parked - and
this is a critical element for the Government to establish in
the "reasonable suspicion" analysis. If the car was legally
parked on a public street, then it would be less suspicious
than if it were parked "next to" or "in the driveway" of a
known crack house. On two occasions Officer Jennewein
testified that the car was parked "in front" of the house and
three times he simply stated the vehicle was "at" the house.
On a single occasion he testified that the car was parked
"right next" to the house in the "dirt driveway or dirt lot."
There is no reason to believe that Officer Jennewein's single
assertion that the car was parked next to the house is any
more believable than his multiple assertions that it was
parked in front of or at the house. The Air Force court found
only that the car was "parked outside the home.” Robinson,
56 M.J. at 547. The parties stipulated later as part of the
conditional plea that Appellant's car was "parked on Steele
Street."
The second time Officer Jennewein observed the car,
Appellant was driving down the public street in a legal
manner. The officer had not seen Appellant in the "known
crack house" nor had he seen him with any known criminals
or drug dealers.
33a
Appellant's vehicle, owned by an Air Force
noncommissioned officer who lived on Patrick
AFB, was out of place.
The fact that a vehicle or individual is located in a high
crime area is not, in itself, evidence of illegal conduct.”
Further, the fact that the vehicle was registered to an Air
Force noncommissioned officer adds little to a "reasonable
suspicion" analysis. Officer Jennewein's testimony that "it's
not a kosher place for a [military] member or a family
member to be" leads to the conclusion that it may be a
kosher place for an individual who is not a member of the
military. Military members come from all socio-economic
backgrounds and may well have valid reasons to visit family -
and friends in what are characterized as "high crime areas."
It is completely inappropriate to categorize military members
as a "class" deserving higher attention or suspicion from the
police.
As soon as Officer Jennewein pulled out behind
the Appellant's vehicle, the Appellant made a
sudden turn into an unpaved alley. Even if the
turn was not illegal under Florida law, it was
(1) evasive, (2) an indicator of impaired driving,
and (3) unusual because it was a sudden turn
onto an unpaved alley that was not a customary
roadway.
Officer Jennewein testified that once he saw the four-
door maroon Oldsmobile drive by he "pulled out and as soon
as [he] pulled out, [he] got right behind it and the individual
pulled into an alley which is between Guava and Avocado
> Brown v. Texas, 443 U.S. 47, 52 (1979); United States v.
Basey, 816 F.2d 980, 989 (Sth Cir. 1987); United States v.
Davis, 94 F.3d 1465, 1470 (10th Cir. 1996); United States v.
Sprinkle, 106 F.3d 613, 618 (4th Cir. 1997); United States v.
Green, 111 F.3d 515, 520 (7th Cir. 1997), cert. denied, 522
U.S. 973 (1997).
34a
[Streets] and he failed to signal." Officer Jennewein clarified,
however, that the distance between his vehicle and
Appellant's was 150 feet. While Officer Jennewein initially
stated that the Appellant "slammed on" his brakes when he
pulled his police cruiser into the street, he corrected himself
and testified that the Appellant "decelerated and stepped on
the brake pedal and abruptly turned right into the alleyway."
The Air Force court determined only that “within two or
three seconds that Appellant quickly turned off the roadway,
without signaling." Robinson, 56 M.J. at 548. While certain
conduct that constitutes flight or avoidance of police is
suggestive of wrongdoing,° individuals driving in a normal,
lawful manner have not been considered to be evasive.’ At
no time did Officer Jennewein testify that Appellant tried to
evade him, speed away, or do anything other than turn
suddenly into an alley and then stop after the officer turned
his emergency lights on.
Impaired driving is simply not a reasonable conclusion to
be drawn from these facts. Absent an underlying traffic
offense, the mere failure to use a turn signal is not indicative
of criminal activity being afoot, including impaired driving.
Where the law does not mandate.the use of the turn signal in
the first place, the wholly lawful act of turning without using
the signal bears no reasonable relaticnship to a lapse of
judgment indicative of impaired driving. The record makes
clear that Officer Jennewein did not perceive impairment as
a basis for his actions at the time this stop was actually made
© United States v. Raibley, 243 F.3d 1069 (7th Cir. 2001);
United States v. Elkins, 70 F.3d 81 (10th Cir. 1995);
Commonwealth v. Grandison, 741 N.E.2d 25 (Mass. 2001);
State v. Vadnais, 677 A.2d 155 (N.H. 1996).
’ Sprinkle, 106 F.3d at 617-18; State v. Haviland, 532
N.W.2d 767 (Iowa 1995).
35a
and it was not found as a basis for the stop by the military
judge or the Court of Criminal Appeals.
The majority engages in speculation when it states that
the alley into which Appellant turned was not "customarily"
used as a roadway. This alley was not a short dead-end; it
was a through alley connecting two streets in the area of an
apartment building. According to Officer Jennewein, the
alley "was used by all the residents." A reasonable, if not the
sole, purpose of this alley is vehicular traffic.®
"Reasonable Suspicion"
"Reasonable suspicion" is "a particularized and objective
basis" for suspecting the person stopped of criminal activity.
Ornelas-Ledesma v. United States, 517 U.S. 690, 696
(1996). "Reasonable suspicion" is formed by specific,
articulable facts which, together with objective and
reasonable inferences, form the basis for suspecting that the
particular person detained is engaged in criminal activity.
United States v. Twilley 222 F.3d 1092, 1096 (9th Cir. 2000).
The pre-stop specific, articulable facts in this case simply
do not constitute "reasonable suspicion." Although
recognizing that a Fourth Amendment analysis of reasonable
suspicion is objective and viewed through the eyes of the
reasonable officer, the Supreme Court has also held that
reviewing courts should look to the specialized training and
experience of the detaining officer to make inferences that
might elude an untrained person.” This analysis cuts both
ways, and here it is important to note that none of the reasons
* Interestingly, after the stop Officer Jennewein discovered
that the passenger in Appellant's car lived "right there on
Avacado [Street]." To an experienced officer familiar with
the area, a turn at this point to drop off a passenger or visit a
resident of the apartment building would de usual and
"customary."
® United States v. Arvizu, 534 U.S. 266, 273 (2002).
36a
cited by the majority rose to a level that Officer Jennewein,
with his specialized training and experience, considered
sufficient to rely upon as a basis for a "reasonable suspicion"
stop. Rather, Officer Jennewein testified repeatedly that the
only basis for the stop was his belief that a traffic violation
had occurred. The majority is then left with the difficult task
of constructing a basis for "reasonable suspicion" where the
detaining officer articulated the grounds relied upon by the
majority and found them lacking.
The weight of evidence in the record indicates that
Appellant's car was legally parked on a public street in a high
crime area. Appellant was not seen in the area of the crack
- house, nor was he seen going into or out of the house. The
presence of his car in this location does not create a nexus
between him and criminal drug activity. While Appellant's
military status seemed to have struck a chord with Officer
Jennewein, from an objective standpoint it does not create or
increase the level of suspicion. Assuming that it was unusual
for a car to be parked in that area, then it should be no more
unusual if the car is owned by a military member or by a
civilian.
The fact that Officer Jennewein later saw the car driving
down the street does not add any additional cause for
suspicion. The car had been earlier seen parked in the area
and it is logical that at some point it would be driven to
another location. Under these circumstances the legal
movement of a vehicle on a public street does not provide
any additional basis for "reasonable suspicion." Finally,
Appellant made a legal turn into an alley. While Officer
Jennewein and the majority characterize the turn as
"sudden," Appellant didn't slam on his brakes, drive in an
erratic fashion or do anything else that would bring attention
to him - other than failing to turn on his turn signal. In fact,
in a matter of three to four seconds, Officer Jennewein
covered the 150 foot distance between his vehicle and
37a
Appellant's, and followed Appellant through the turn before
effecting the stop.
Under the rationale adopted by the majority the
following facts would constitute "reasonable suspicion" that
the car was involved in illegal drug activity or that the driver
was impaired: a car owned by military member was seen
parked in a high crime area late at night in the vicinity of a
known crack house; the car was later seen driving down a
public street and turning into an alley in a sudden but legal
manner.
Conclusion
The initial stop for a traffic offense was invalid and
violated the Fourth Amendment. I would hold the evidence
should have been suppressed and reverse the Air Force Court
of Criminal Appeals on that basis. Even if I engaged in a
traditional reasonable suspicion analysis, unembellished by
what transpired after the illegal stop, these facts do not rise
to the level of "reasonable suspicion" and the evidence
should have been suppressed.
38a
Appendix B
UNITED STATES AIR FORCE COURT OF CRIMINAL
APPEALS
UNITED STATES
V.
Technical Sergeant WINCHESTER ROBINSON, United
States Air Force
ACM 33925
29 October 2001
Sentence adjudged 8 October 1999 by GCM convened at
Patrick Air Force Base, Florida. Military Judge: Barbara G.
Brand.
Approved sentence: Bad-conduct discharge, confinement for
6 months, and reduction to E-4.
Appellate Counsel for Appellant: Lieutenant Colonel
Timothy W. Murphy and Major Stephen P. Kelly.
Appellate Counsel for the United States: Colonel Anthony P.
Dattilo, Major Lance B. Sigmon, and Major Leslea T. Pickle.
Before
SCHLEGEL, ROBERTS, and BRESLIN
Appellate Military Judges
OPINION OF THE COURT
BRESLIN, Judge:
39a
At a preliminary session of this general court-martial, the
appellant moved to suppress evidence of the appellant's use
and possession of cocaine, discovered as a result of a traffic
stop and ensuing searches of the appellant and his vehicle.
After hearing evidence and argument, the military judge
denied the motion.
Thereafter, the appellant was convicted, in accordance
with his pleas, of the wrongful use and possession of
cocaine, simple assault upon his spouse, and two
specifications of disobeying lawful orders, in violation of
Articles 112a, 128 and 92, UCMJ, 10 U.S.C. §§ 912a, 928,
892. Pursuant to (R.C.M.) Rule for Courts-Martial 910(a)(2),
the convening authority and the military judge accepted the
appellant's conditional guilty plea to the drug offenses,
thereby preserving for appellate review the correctness of the
military judge's ruling. The sentence adjudged and approved
included a bad-conduct discharge, confinement for 6 months,
and reduction to E-4.
The appellant now renews his argument that the traffic
stop was unlawful and that the military judge should have
suppressed the results of the searches. He also maintains he
is entitled to a new post-trial action because the convening
authority failed to include in the formal action a reference to
the approved waiver of involuntary forfeitures under Article
58b, UCMJ, 10 U.S.C. § 858b.
Motion to Suppress
Mark Jennewein is an officer in the police department of
Melbourne, Florida. Previously, he had been an Air Force
security policeman for over five years, most recently at
Patrick Air Force Base (AFB), Florida. On 27 February
1999, he was working the midnight shift in Melbourne. He
was on routine patrol in a marked police cruiser in a high-
crime area known for its drug and prostitution activity. At
about 0100 hours, he noticed a maroon, four-door
Oldsmobile parked in the dirt driveway of a house belonging
to a drug dealer well known to him. Officer Jennewein
40a
checked the license plate number through his computer,
which revealed that the car's owner lived on Patrick AFB.
He examined the stickers on the car, noting that it bore a
yellow sticker meaning the registered owner was a non-
commissioned officer assigned to Patrick AFB. Officer
Jennewein waited across the street at the Community
Policing Unit field office to see if anyone approached the
vehicle. He radioed another patrolman, Officer Duffy, who
was also a reservist assigned to Patrick AFB, who informed
him the address was next door to a former supervisor's house
on the installation. After 10 or 15 minutes, Officer
Jennewein was called away for other duties.
A short time later, Officer Jennewein parked his patrol
car behind a vacant store on US Route 1, a location known to
be frequented by prostitutes. Shortly after arriving, Officer
Jennewein saw the same maroon Oldsmobile traveling on the
roadway. He pulled out and got right behind the vehicle.
Within two or three seconds, the Oldsmobile turned off the
roadway into an alley without giving a turn signal. Officer
Jennewein indicated that he was directly behind the vehicle
when it turned, but that the other driver's failure to use his
turn signal did not cause the officer to brake suddenly, or
swerve to void the vehicle. Officer Jennewein activated his
red and blue lights and made a traffic stop.
Officer Jennewein approached the Oldsmobile and asked
the driver (the appellant) to produce his driver's license,
registration, and proof of insurance. The appellant fumbled
with his wallet, and was able to present his driver's license
but not the other requested items. Officer Jennewein told him
to keep looking for the other documents. Officer Jennewein
then inquired how the appellant knew the passenger, and the
appellant indicated they had just met.
Officer Jennewein then spoke to the passenger, Floyd
Simmons. Mr. Simmons was "rough" looking, with tattered
clothing, and somewhat emaciated, "like a street person." He
4la
had no identification, but said he lived in the neighborhood.
Mr. Simmons said he knew the appellant because they were
block masons, and worked together for the last six months at
thé Daily Labor. Officer Jennewein called in Mr. Simmon's
information on his police radio to check for outstanding
warrants. Finding none, he allowed Mr. Simmons to leave.
Officer Jennewein returned to the appellant, who had
found his registration. Officer Duffy arrived in her patrol car
as a back-up. Officer Jennewein noticed that the appellant's
address on his license did not match the address on his
registration. The officer then radioed in the appellant's
personal information to check for outstanding warrants.
Officer Jennewein asked the appellant if he had any
drugs or weapons in his car, and the appellant said he did
not. Officer Jennewein asked for consent to search the
vehicle, but the appellant declined. Officer Jennewein
radioed for a canine unit. During this time, Officer
Jennewein was still waiting for a response to his radioed
inquiry concerning the appellant. During the conversation
with the appellant, Officer Jennewein noticed an odor of
alcohol coming from the appellant's person. The appellant's
speech seemed somewhat "mumbled," and his eyes were
watery and bloodshot.
Officer Jennewein began writing a citation for failing to
change the address on his registration. While he was writing
the citation, the canine unit arrived. Officer Jennewein asked
the officer to walk the drug-detecting dog, Rexx, around the
appellant's car. Officer Jennewein advised the appellant that
he suspected him of driving under the influence of alcohol.
Officer Jennewein asked if he would submit to a field
sobriety exercise. The appellant declined. At that time, the
drug-detecting dog alerted on the appellant's vehicle,
indicating the dog detected the odor of narcotics. Officer
Jennewein advised the appellant he was being detained upon
probable cause that he had a narcotic substance in his car,
handcuffed him, and placed him in the patrol car.
42a
Officers Jennewein and Markowski searched the
appellant's vehicle, and found cocaine in rock form and a
metal rod, curved on one end, which they recognized as drug
abuse paraphernalia. A field test at the scene was positive for
cocaine. Officer Jennewein then informed the appellant he
was under arrest for possession of cocaine as well as driving
under the influence of alcohol.
The defense moved to suppress all the fruits of the search
of the appellant's car and his person. Defense counsel cited
State v. Riley, 638 So. 2d 507 (Fla. 1994), a decision of the
Florida Supreme Court holding that failure to use a turn
signal is not an offense under Florida law where the turn did
not affect other vehicles. The defense counsel argued that
since the failure to use a turn signal was not an offense, the
officer had no probable cause to stop the appellant's vehicle,
and the evidence obtained from the unlawful stop must be
considered fruit of the poisonous tree. Defense counsel also
maintained that the stop took too long, essentially becoming
an unlawful detention. The trial counsel cited Terry v. Ohio,
392 U.S. 1 (1968), and argued that all that was required to
conduct a brief investigative stop on a vehicle was a
reasonable, articulable suspicion of criminal activity. Trial
counsel argued that considering all the facts known to the
officer that night, there was a legally sufficient basis for the
stop. The military judge denied the motion, finding that
Officer Jennewein had probable cause to believe the
appellant had violated Florida state law requiring the use of a
turn signal because Officer's Jennewein's vehicle "may have
been affected" by the appellant's turn. The military judge
found that the stop was not unreasonably long under the
circumstances. She also found that the alert by the drug-
detecting dog provided probable cause to search the
appellant's vehicle.
The appellant argues to this Court that the military judge
erred in denying the motion to suppress. The appellant
maintains that it is not unlawful in Florida to turn without
43a
signaling if no other vehicle is affected by the turn. Riley,
638 So.2d at 507. The appellant contends Officer Jennewein
did not have probable cause to believe that a traffic violation
had occurred, therefore the stop was unlawful and the fruits
of the unlawful seizure must be suppressed. The government
responds that there was evidence on the record from which
we could determine that there was traffic on the roadway that
may have been affected by the turn. The government also
argues that the failure to signal created a reasonable
suspicion that the driver was intoxicated, which was
sufficient to justify an investigative stop.
We review a military judge's decision to deny a motion
to suppress evidence for an abuse of discretion. United
States v. Beckett, 49 M.J. 354, 356-57 (1998). Findings of
fact are reviewed using a clearly erroneous standard, and
conclusions of law are reviewed de novo. United States v.
Ayala, 43 M.J. 296, 298 (1995).
In ruling on the motion, the military judge made
extensive: findings of fact and conclusions of law. The
military judge's findings of fact are supported by the
evidence presented during the hearing and are not clearly
erroneous. The military judge also concluded as a matter of
law that Officer Jennewein had probable cause to believe
that a traffic violation had occurred when he saw the
appellant's car, which was right in front of his, brake
suddenly and turn right without signaling. The military judge
ruled this was a violation of the Florida statute requiring turn
signals when any other vehicle "may" be affected by the
movement. We review this conclusion de novo.
Florida Statute § 316.155 (1999) provides,
(1) No person may turn a vehicle from a direct
course upon a highway unless and until such
movement can be made with reasonable safety,
and then only after giving an appropriate signal
in the manner hereinafter provided, in the event
44a
any other vehicle may be affected by the
movement.
In Riley, 638 So. 2d 507, the Florida Supreme Court held
that this statute required proof that another vehicle was
actually affected by the turn. It is arguable that the Court in
Riley did not specifically rule on this construction, but
instead focused their analysis on whether subsections (1) and
(2) of the statute must be construed separately or in pari
materia. However, later decisions of the Court held that the
statute requires that another vehicle actually be affected. See
State v. Daniel, 665 So.2d 1040 (1995), overruled on other
grounds, Holland v. State, 696 So.2d 757 (1997). The
Florida Supreme Court is the ultimate authority on the scope
and construction of state statutes. United States v. Allen, 27
M.J. 234, 238 (C.M.A. 1988). Although the construction in
Riley seems to strain the language of the statute, it is binding.
For this reason, we must conclude that the military judge
erred in applying the Florida law, and that Officer Jennewein
did not have probable cause to believe the appellant had
committed a crime based upon the appellant's failure to
provide a turn signal.
The appellant contends that the lack of probable cause for
arrest requires that all the evidence derived from the arrest be
suppressed. Wong Sun v. United States, 371 U.S. 471, 488
(1963). Contrary to the appellant's contention, however, this
does not end our inquiry. We must determine whether there
is some other basis in the law for the stop and the resulting
searches that led to the evidence of the use and possession of
cocaine.
A. Objective Review
The first issue is whether this Court, in reviewing the
basis for the stop, is limited to considering the reasons
subjectively relied upon by Officer Jennewein. Although
there is little military case law on this matter, the Supreme
45a
Court has made it clear that we are not bound by the officer's
subjective basis for the stop. In United States v. Robinson,
414 U.S. 218 (1973), the Court considered the lawfulness of
a search incident to apprehension, when the arresting officer
testified that he had no fear of the respondent and did not
suspect the respondent was armed. The Court made clear that
the officer's subjective beliefs were not controlling, rather the
fact of the lawful arrest established the legal authority to
search the subject. /d. at 235.
In Scott v. United States, 436 U.S. 128, 138 (1978), the
Supreme Court considered a case involving a wiretap under
18 U.S.C. §§ 2510-2520 (1976) which required law
enforcement officers to minimize the interception of
communications not otherwise subject to interception. The
law enforcement agent testified that no real effort had been
made to minimize the interceptions. The government argued
nonetheless that the interceptions were reasonable under the
circumstances. The District Court ordered the results of the
wiretap suppressed based upon the officer's testimony.
Ultimately, the Court of Appeals reversed the District Court,
ruling that "the presence or absence of a good faith attempt
tO minimize on the part of the agents is undoubtedly one
factor to be considered in assessing whether the
minimization requirement has been satisfied," but went on to
hold that "the decision on the suppression motion must
ultimately be based on the reasonableness of the actual
interceptions and not on whether the agents subjectively
intended to minimize their interceptions." Scott, 436 U.S. at
134 (quoting United States v. Scott, 516 F.2d 751, 756 (D.C.
App. 1975)). The Supreme Court adopted the analysis of the
Court of Appeals, holding that the officer's subjective intent
alone does not make otherwise lawful conduct illegal or
unconstitutional.
The Supreme Court in Scott prescribed a two-step
approach to the required analysis. First, a Court must
determine whether there has been a_ statutory or
46a
constitutional violation. This is not based upon the officer's
subjective purpose, but rather based upon an objective
review of the facts known to him at that time. The Supreme
Court held that the officer's subjective state of mind does not
invalidate the action taken as long as the circumstances,
viewed objectively, justify that action. If a reviewing court
finds a violation, then it proceeds to the second part of the
analysis--what remedy is appropriate. In this second part of
the analysis, "official motives may play some part in
determining whether application of the exclusionary rule is
appropriate." Scott, 436 U.S. at 135-36.
In Whren v. United States, 517 U.S. 806 (1996),
plainclothes vice-squad members patrolling a "high-drug
area" in Washington D.C. became suspicious when they
observed a vehicle stopped at an iniersection for an
unusually long time--more than 20 seconds--with youthful
occupants and a driver looking into the passenger's lap.
When the unmarked patrol car turned around and headed
back to the vehicle, the suspect vehicle turned suddenly,
without signaling, and drove off at an unreasonable speed.
The police followed, overtook the suspect vehicle at a traffic
light, and stopped the suspect vehicle. The officers saw two
bags of what appeared to be crack cocaine in the passenger's
lap, and arrested the subjects. At a pretrial suppression
hearing, the defense argued that the officer's asserted reason
for the traffic stop--to give the driver a warning about traffic
violations--was pretextual. The District Court denied the
motion to suppress. The Court of Appeals affirmed, holding
that, "regardless of whether a police officer subjectively
believes that the occupants of an automobile may be
engaging in some other illegal behavior, a traffic stop is
permissible as long as a reasonable officer in the same
circumstances could have stopped the car for the suspected
traffic violation." United States v. Whren, 53 F.3d 371, 374-
75 (C.A.D.C. 1995). The Supreme Court affirmed, holding
47a
that subjective intentions play no role in ordinary, probable
cause Fourth Amendment analysis. 517 U.S. at 813.
_ The Supreme Court reaffirmed its position in Whren in
Arkansas v. Sullivan, 532 U.S. 769 (2001). There, the
Arkansas Supreme Court declined to follow Whren, and
upheld the suppression of evidence based upon the trial
court's findings concerning the police officer's ulterior
motives. The Supreme Court reversed, noting again the
Court's “unwillingness to entertain Fourth Amendment
challenges based on the actual motivations of individual
officers .. . ." Arkansas v. Sullivan, 121 S.Ct. at 1878. The
Court also made it clear that the Arkansas Supreme Court
"may not impose such greater restrictions as a matter of
federal constitutional law when this Court specifically
refrains from imposing them." /d. (quoting Oregon v. Hass,
420 U.S. 714, 719 (1975)) (emphasis in original). See also
Ohio v. Robinette, 519 U.S. 33 (1996).
The Supreme Court's holding is, of course, binding upon
this Court. "This test . . . is purely objective and thus there is
no requirement that an actual suspicion by the officer be
shown." 4 Wayne R. LaFave. Search and Seizure, A Treatise
on the Fourth Amendment, § 9.4(a), p. 139 (3d ed. 1996).
The Court in United States v. McKie, 951 F.2d 399, 402
(D.C. Cir. 1991) phrased it succinctly: "The Terry v. Ohio,
392 U.S. 1 (1968) standard being one of objective
reasonabieness, we are not limited to what the stopping
officer says or to evidence of his subjective rationale; rather,
we look to the record as a whole to determine what facts
were known to the officer and then consider—whether a
reasonable officer in those circumstances would have been
suspicious." See also United States v. Villamonte-Marquez,
462 U.S. 579 (1983) (customs officers were entitled to board
vessel in navigable waters to review documents under
federal statute, and the fact that they were following an
informant's tip of drug activity and were accompanied by a
Louisiana state policeman does not undermine that
48a
authority); State v. Hawley, 540 N.W.2d 390 (N.D. 1995)
(even though officer admitted he did not form any suspicion
of criminal behavior, the automobile stop was lawful because
the "reasonable-and-articulable-suspicion standard" is
objective, and it does not hinge upon the subjective beliefs of
the arresting officer). Indeed, even if the officer is unaware
of a violation of state law at the time of the stop, the fact of
such a violation may be considered by a reviewing court in
determining the objective reasonableness of the stop. State
v. Vento, 604 N.W.2d 468 (S.D. 1999).
Thus we conclude that we are not limited to the belief
subjectively relied upon by Officer Jennewein as the basis
for the stop. Instead, we must consider objectively all the
facts known to him at that time in determining the basis for
the stop.
B. Basis for the Stop
As discussed above, Officer Jennewein did not have
probable cause to believe a traffic violation had occurred,
and therefore he had no probable cause to arrest the appellant
on that basis. However, the Fourth Amendment allows a
properly limited "search" or "seizure" on facts that do not
constitute probable cause to arrest or to search for
contraband or evidence of a crime. The Supreme Court has
made it clear that "[a] brief stop of a suspicious individual, in
order to determine his identity or to maintain the status quo
momentarily while obtaining more information" may be
reasonable "seizure" under the Fourth Amendment. Adams v.
Williams, 407 U.S. 143, 145-46 (1972). See also Terry v.
Ohio, 392 U.S. 1 (1968).
These brief investigative stops may be used for persons
in a moving vehicle. United States v. Brignoni-Ponce, 422
U.S. 873, 881 (1975) ("when an officer's observations lead
him reasonably to suspect that a particular vehicle may
contain aliens who are illegally in the country, he may stop
the car briefly and investigate the circumstances that provoke
49a
suspicion"). One's expectation of privacy in an automobile
and freedom in its operation are significantly different from
the traditional expectation of privacy and freedom in a
personal residence. United States v. Martinez-Fuerte, 428
U.S. 543 (1976); United States v. Ortiz, 422 U.S. 891, 896
n.2 (1975). Nonetheless, a random stop of a vehicle for no
reason, however brief, constitutes an unlawful seizure under
the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648
(1979). “Officers on roving patrol may stop vehicles only if
they are aware of specific articulable facts, together with
rational inferences from those facts, that reasonably warrant
suspicion that the vehicles contain aliens who may be
illegally in the country." Brignoni-Ponce, 422 U.S. at 884.
Courts have used a variety of terms to capture
the elusive concept of what cause is sufficient to
authorize police to stop a person. Terms like
"articulable reasons" and "founded suspicion"
are not self-defining; they fall short of providing
clear guidance dispositive of the myriad factual
situations that arise. But the essence of all that
has been written is that the totality of the
circumstances--the whole picture--must be taken
into account. Based upon that whole picture the
detaining officers must have a particularized and
objective basis for suspecting the particular
person stopped of criminal activity. See, e.g.
Brown v. Texas, 443 U.S. 47, 51 [(1979)];
United States v. Brignoni-Ponce, 422 U.S. 873,
884 [(1975)].
United States v. Cortez, 449 U.S. 411, 417-18 (1981). See
United States v. Sokolow, 490 U.S. 1 (1989) (reasonable
suspicion requires evaluating the totality of the
circumstances); United States v. Cummins, 920 F.2d 498,
501 (8th Cir. 1990) (standard is objective reasonableness);
United States v. Wright, 476 F.2d 1027 (Sth Cir. 1973);
7 50a
United States v. Bugarin-Casas, 484 F.2d 853 (9th Cir.
1973) ("founded suspicion").
Courts consider a wide variety of factors in determining
whether there are articulable-reasons or founded suspicion
for a stop.
Any number of factors may be taken into
account in deciding whether there is reasonable
suspicion to stop a car in the border area.
Officers may consider the characteristics of the
area in which they encounter a vehicle. Its
proximity to the border, the usual patterns of
traffic on the particular road, and previous
experience with alien traffic are all relevant. See
Carroll v. United States, 267 U.S. 132, 159-161
(1925); United States v. Jaime-Barrios, 494 F.2d
455 (CA9), cert. denied, 417 U.S. 972 [ ] (1974).
They also may consider information about
recent illegal border crossings in the area. The
driver's behavior may be relevant, as erratic
driving or obvious attempts to evade officers can
support a reasonable suspicion. See United
States v. Larios-Montes, 500 F.2d 941 (CA9
1974); Duprez v. United States, 435 F.2d 1276
(CA9 1970). Aspects of the vehicle itself may
justify suspicion.
Brignoni-Ponce, 422 U.S. at 884-85.
There is a substantial body of case law discussing the
kinds of facts and circumstances giving rise to a reasonable
suspicion sufficient to justify a Terry stop. See generally 4
LaFave, supra, at § 9.4(f). One frequently cited factor is the
subject's reaction to the presence of the police, including
running away (United States v. Wilson, 2 F.3d 226 (7th Cir.
1993)); changing direction to avoid the police (United States
v. Sharpe, 470 U.S. 675, 84 L. Ed. 2d 605, 105 S. Ct. 1568
Sla
(1985)); or trying to conceal objects or themselves (United
States v. Paleo, 967 F.2d 7 (1st Cir. 1992); Brown v. United
States, 546 A.2d 390 (D.C. 1988); United States v. Tate, 648
F.2d 939 (4th Cir. 1981)). Another factor commonly
considered is whether the individual "fits" the area in which
he is found. "If the individual is of a race or economic status
not ordinarily to be found in that area," it may be considered
in assessing the degree of suspicion that exists. 4 LaFave,
supra, § 9.4(f), p.183. See also People v. Bower, 24 Cal. 3d
638, 156 Cal. Rptr. 856, 597 P.2d 115 (1979); Racine v.
State, 286 So. 2d 890 (Ala. Crim. App. 1973). Time of day is
also a common factor, with the lateness of the hour often
generating grounds for suspicion, depending upon the
location and the activity in question. United States v. Lender,
985 F.2d 151 (4th Cir. 1993). The nature of the area in which
the suspect is found is often considered, especially in areas
where illegal activity is known to occur. United States v.
Perrin, 45 F.3d 869 (4th Cir. 1995).
In this case, Officer Jennewein observed the appellant's
automobile parked outside the home of a well-known
narcotics dealer at about 0100 hours. Upon inspecting the
parked car he saw Patrick AFB registration stickers. As a
former Air Force security policeman he knew that the
stickers meant the owner was a noncommissioned officer
assigned to Patrick AFB. He subsequently learned that the
owner lived on Patrick AFB. Thus, the vehicle was "out of
place." Later, at about 0130 hours, while parked in his patrol
car in an area of town known for drug and prostitution
activity, Officer Jennewein saw the appellant driving the
vehicle. Officer Jennewein pulled his marked patrol car into
traffic right behind the appellant, and within two or three
seconds the appellant quickly turned off the roadway,
without signaling. Considering all these factors, we conclude
that a reasonable officer aware of these facts would have a
lawful basis for a brief investigative stop.
52a
‘To be reasonable under the Fourth Amendment, an
investigative stop must be brief. United States v. Place, 462
U.S. 696, 709-10 (1983). There is no bright-line rule
concerning the length of a "reasonable" stop--all the
circumstances must be considered. United States v. Sharpe,
470 U.S. 675, 685-86 (1985). The detaining officer may take
the time to review the driver's license, registration certificate
and proof of insurance, and run a computer check on the car
and driver. United States v. Soto, 988 F.2d 1548, 1554 (10th
Cir. 1993); United States v. Rodriguez, 44 M.J. 766, 772
(N.M. Ct. Crim. App. 1996), set aside on other grounds, 50
M.J. 38 (1998). In this case, after the initial stop, the
appellant's apparent intoxication provided Officer Jennewein
a reasonable basis to detain the appellant further. Once the
appellant produced his registration that did not match his
driver's license, Officer Jennewein had probable cause to
believe the appellant had committed a traffic offense. When
the drug-detecting dog alerted on the vehicle, the officer had
probable cause to arrest the appellant for possession of
narcotics. Florida v. Royer, 460 U.S. 491 (1983).
We conclude that Officer Jennewein's stop of the
appellant's vehicle was reasonable under the circumstances.
The evidence derived from the subsequent searches of the
appellant and his vehicle was properly seized and admitted
into evidence.
Failure to Note the Waiver in the Action
After trial, the appellant asked the convening authority to
defer the automatic forfeitures under Article 57(a), UCMJ,
10 U.S.C. § 857(a), until the date of action, and to waive the
automatic forfeitures under Article 58b, UCMJ, in the
maximum amount for six months. The convening authority
denied the request for deferment, but granted the waiver for a
period of six months beginning 14 days after the date of the
sentence. The waiver of forfeitures was for the purpose of an
involuntary allotment in support of the appellant's family,
and was ordered to be paid to the appellant's spouse directly.
53a
On 12 December 1999, the convening authority took action
approving the findings and sentence. The formal action did
not note the approved waiver of forfeitures. There is no
evidence the appellant's spouse did not receive the monies
ordered paid through the involuntary allotment.
The appellant argues that the failure to include mention
of the approved waiver of forfeitures requires a new action.
We disagree.
Article 58b, UCMJ, requires automatic forfeitures during
periods of confinement for qualifying sentences. Subsection
(b) of that provision authorizes the convening authority to
waive "any and all of the forfeitures of pay and allowances . .
. for a period not to exceed six months." The statute does not
place a time limit on the convening authority's decision, or
require that it be included in the formal action approving the
findings or sentence. Air Force Instruction (AFI) 51-201,
Administration of Military Justice, P 9.7.3 (3 October 1997),
in effect at the time of this trial, provided that the convening
authority. may waive automatic forfeitures any time prior to
acting on the sentence. AFI 51-201, § 9.8.4 provided that
approval of a waiver "should be" memorialized in the
convening authority's action. This language is permissive
rather than mandatory. We conclude that the action of the
convening authority is not the instrument that effects an
approved waiver of automatic forfeitures, rather it is a means
of memorializing the event. The failure to note the approved
waiver of automatic forfeitures in the action does not
invalidate an otherwise proper action.
Conclusion
The findings are correct in law and fact, and no error
prejudicial to the substantial rights of the appellant occurred.
Accordingly, the findings and sentence are
AFFIRMED.
SCHLEGEL, Senior Judge (dissenting in part):
54a
I would hold that the judge erred in failing to suppress
the evidence obtained from the stop and search of the
appellant and his car. As a result, I would set aside the
findings of guilty and dismiss Charge I and its specifications.
This case turns on the Florida Supreme Court's decision in
State v. Riley, 638 So. 2d 507 (Fla. 1994), Officer
Jennewein's trial testimony about why he stopped the
appellant, and federal case law concerning traffic stops.
The defendant in Riley was the passenger in a car that
was stopped for failing to use a turn signal pursuant to Fla.
Stat. § 316.155 (1999), which provides that:
(1) No person may turn a vehicle from a direct
course upon a highway unless and until such
movement can be made with reasonable safety,
and then only after giving an appropriate signal
in the manner hereinafter provided, in the event
any other vehicle may be affected by the
movement.
During the stop, the police discovered the defendant had
some marijuana. The trial court, in suppressing the
marijuana, found that the police officers, who were engaged
in drug enforcement operations, had no basis to stop the car
because no other cars were affected by the driver's failure to
signal before turning. The Florida Supreme Court, in
affirming the lower court, held,
If no other vehicle is affected by a turn from the
highway, then a signal is not required by the
statute. If a signal is not required, then a traffic
stop predicated on failure to use a turn signal is
illegal and any evidence obtained as a result of
that stop must be suppressed.
Id. at 508. While I disagree with the Florida Supreme
Court's interpretation of the plain meaning of that paragraph
55a
of the statute, they are the ultimate authority on the scope
and construction of their own state statutes. United States v.
Allen, 27 M.J. 234, 238 (C.M.A. 1988).
In the case sub judice, Officer Jennewein testified that
his probable cause for the stop was the appellant's turn
without signaling. Officer Jennewein said there was
moderate traffic on the street that night, including men
cruising through the area in their cars looking for prostitutes. -
However, he could not say that any other vehicle was
affected by the appellant's turn, including his own.
"The Fourth Amendment requires that searches and
seizures be reasonable. A search or seizure is ordinarily
unreasonable in the absence of individualized suspicion of
wrongdoing." City of Indianapolis v. Edmond, 531 U.S. 32,
37 (2000) (citing Chandler v. Miller, 520 U.S. 305, 308
(1997)); United States v. McCarthy, 38 M.J. 398, 402
(C.M.A. 1993) (citing United States v. Thatcher, 28 M.J. 20,
22 (C.M.A. 1989) and United States v. Middleton, 10 M.J.
123, 127 (C.M.A. 1981)). The decision to stop a motorist is
reasonable when a law enforcement officer has probable
cause to believe that a traffic violation has occurred.
Delaware v. Prouse, 440 U.S. 648, 659 (1979); Pennsylvania
v. Mimms, 434 U.S. 106, 109 (1977) (per curiam). The actual
motivation of a law enforcement officer who detains a
motorist based on probable cause is irrelevant. Whren v.
United States, 517 U.S. 806, 810-13 (1996).
The rule articulated by the Supreme Court in
Whren provides law enforcement officers broad
leeway to conduct searches and _ seizures
regardless of whether their subjective intent
corresponds to the legal justifications for their
actions. But the flip side of that leeway is that
the legal justification must be objectively
grounded.
56a
United States v. Miller, 146 F.3d 274, 279 (Sth Cir. 1998).
See also United States v. Lopez-Soto, 205 F.3d 1101 (9th Cir.
2000); United States v. Lopez-Valdez, 178 F.3d 282 (Sth Cir.
1999).
In Miller, the accused drove his motor home through an
intersection with his left turn signal on, without turning or
changing lanes. A deputy sheriff stopped him for the purpose
of issuing a warning citation for improper use of the turn
signal pursuant to Tex. Transp. Code § 547.305(c) (Vernon
Supp. 1997). During the stop, the accused consented to the
warrantless search of his vehicle and the police found
marijuana. The District Court denied defendant's motion to
suppress the evidence, and he was convicted of possession of
marijuana with intent to distribute. The Court of Appeals for
the Fifth Circuit held that the lower court erred in admitting
the marijuana into evidence because it found that flashing a
turn signal without turning or changing lanes was not a
violation of Texas law. As a result, there was no probable
cause for the stop.
In Lopez-Soto, the accused was stopped by a San Diego
police officer while driving a car that displayed license plates
from Baja California, Mexico. The police officer conducted
the stop because he mistakenly believed that Baja California
required motorists to affix a visible registration sticker on the
rear of the car. During the stop, the officer discovered 400
kilograms of marijuana in the car. The District Court denied
defendant's motion to suppress the evidence and the accused
entered a conditional plea of guilty to possession of the
marijuana with the intent to distribute. In reversing the
accused's conviction, the Court of Appeals for the 9th Circuit
found that even though the defendant's vehicle had no valid
registration sticker, the officer's mistaken understanding of
the law did not provide an objectively reasonable basis for
the stop.
In Lopez-Valdez, the accused was driving on a public
highway in Texas near the Mexican border. Traveling in the
S7a
opposite direction, a Texas state trooper and a border patrol
agent noticed her car had numerous passengers. They
suspected that she was smuggling aliens. When the trooper
looked in his rearview mirror, he saw the accused's brake
lights come on and noticed a hole in the right taillight. The
trooper decided to stop the accused because he believed that
a broken taillight constituted a traffic infraction. After the
stop, the trooper and agent discovered that most of the
passengers were illegal aliens. The accused unsuccessfully
sought to suppress this evidence and was convicted of
willfully transporting illegal aliens. On appeal she argued
that the trooper and agent lacked reasonable suspicion and
probable cause for the stop. The Court of Appeals for the
Fifth Circuit agreed with her and found that the presence of
people in the car alone did not raise a reasonable suspicion of
wrongdoing and that under Texas law a broken taillight did
not justify a traffic stop. The court held that the stop of the
accused's car also did not pass muster under the good faith
exception to the exclusionary rule.
Like the other police officers in the cited cases, Officer
Jennewein was mistaken about the law. As a result, the stop
of the appellant was not objectively grounded in the law. The
majority holds that despite this disconnect, the stop was still
permissible based upon reasonable suspicion. I agree that a
traffic stop may be based on reasonable suspicion. However,
a stop under this theory must be based upon observations
that the person stopped has committed, is committing, or is
about to commit a crime. See Lopez-Soto, 205 F.3d at 1104
(citing Berkemer v. McCarty, 468 U.S. 420, 439 (1984)).
Officer Jennewein testified that shortly after midnight, he
was on routine patrol for suspicious persons in a high crime
area of Melbourne, Florida. He spotted the appellant's car
parked in a dirt lot next to the home of a "convicted felon,
crack user and small, middle dealer. He sells a lot of cocaine
to the prostitutes." Officer Jennewein ran the license plate
number and discovered the car was registered to an address
58a
on Patrick Air Force Base (AFB), Florida. He examined the
car and found Patrick AFB stickers indicating the owner was
a noncommissioned officer. Officer Jennewein testified he
parked across the street to see if anybody came to the car "so
I could check, you know, it could have been a military
spouse, their children, something like that, down here in the
drug area. And it's not a kosher place for a member or a
family member to be." (Before becoming a police officer for
the city of Melbourne, Officer Jennewein had been an Air
Force security policeman, stationed at Patrick AFB.) After
waiting for 10 or 15 minutes for someone to return to the car,
Officer Jennewein was called away to another area. Later,
while sitting in his patrol car in a parking lot, some distance
from where he originally noticed the appellant's car,
watching people and cars, he saw the car drive by. Officer
Jennewein pulled onto the street approximately 150 feet
behind the appellant's vehicle. Almost simultaneously, the
appellant made a right turn into an alley. Officer Jennewein
initiated a traffic stop of the appellant because he failed to
signal for the turn.
In my opinion, these facts are insufficient to justify a stop
based upon reasonable suspicion that criminal activity was
afoot. Initially, there was nothing distinctive about the car
except that it was parked near public housing in a high crime
area of the city. It was close to the home of a convicted felon
who sold cocaine to prostitutes. Officer Jennewein learned
that the car was registered to a noncommissioned officer
stationed at Patrick AFB. However, he never saw anyone
from the car enter or exit the felon's home. No individual
was seen using or possessing cocaine or drinking alcohol
before operating the car. In fact, but for Officer Jennewein's
misunderstanding about traffic laws in the state of Florida,
he never observed the car being operated in an unlawful
manner.
59a
Under the majority's theory, Officer Jennewein would
have been justified stopping any car parked near the felon's
house or operating in that high crime area early in the
morning. I would hold that Officer Jennewein violated the
Fourth Amendment when he stopped the appellant and that
the evidence obtained as a result of the stop should have
been suppressed by the judge. See Wong Sun v. United
States, 371 U.S. at 484-85. Since all of the evidence
concerning the drug offenses was obtained or derived from
the stop, I would set aside and dismiss Charge I and its
specifications.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.