Volume XXX, No. XX
12, December, 2003
5 Reasons Defense
Attorneys Should Be
Thankful
It's the holiday season, and the defense community certainly has
received its share of gifts from the Illinois legislature. Death penalty
reform, recorded confessions in homicide cases, racial profiling laws -the legislature has merited its share of sincere "Thank You" notes.
So what has the defense received from the Illinois Supreme Court?
Over the past 12 months the court issued a remarkable series of five
decisions that seriously limits the authority of police during traffic
stops. These decisions make it much more difficult for police to turn
minor traffic stops into fishing expeditions for drugs and weapons
violations. The Fab Five are:
- People v. Cox, 202 Ill.2d 462 (2002).
- People v. Gonzalez, 204 Ill.2d 220 (2003).
- People v. Bunch, 207 Ill.2d 7 (2003).
- People v. Caballes, No. 91547 (Nov. 20, 2003).
- People v. Harris, No. 92783 (Nov. 20, 2003).
These five cases make up what I call the Disneyland Doctrine.
Here's why.
The story really starts back in 1996 with the U.S. Supreme Court's decision in Whren v. U.S., 517 U.S.
806 (1996). There the court held that a police officer's subjective reasons -- even if they were
blatantly racist reasons -- for making a traffic stop were irrelevant under the Fourth Amendment.
The only relevant consideration under a Fourth Amendment analysis is whether a police officer
objectively "could have" made such a stop.
Whren thus meant that a police officer could use the most trivial of traffic offenses as a pretext for
stopping a minority motorist -- without running afoul of the Fourth Amendment.
Has there been an increase in minority drivers being stopped for trivial -- and pretextual -- traffic
offenses?
Well, consider that the five cases under review include such dastardly offenses as lack of a rear
license plate light (Cox); driving 71 mph in a 65-mph zone (Caballes); and a defective brake light
(which turned out not to be defective!) (Bunch). And, although race and ethnic background is not
always clear from the cases, Bunch dealt with an African-American; Gonzalez concerned an
Hispanic passenger; and Caballes involved a driver who, in the words of his attorney, was Filipino
but looked Hispanic. See "Court Bars Drug Dog Use in Routine Traffic Stops," Chicago Tribune, Nov.
21, 2003, section 2, pp. 1 and 10.
So what has the Illinois Supreme Court done in these cases? The court has in effect told police
"Look, under Whren we will let you pull over minority drivers for trivial offenses for which you
would probably never pull over a white. But don't even think of expanding the stop into anything
more extensive. You want to waste your time handing out tickets to African-Americans for defective
lights over rear license plates? Fine. But issue the citation and move on!"
I call this the Disneyland Doctrine because the Illinois Supreme Court lets officers enforce all the
Mickey Mouse infractions they want. But the court will not allow the police to become Goofy.
Consider the Harris case. There the police stopped a driver for an illegal left turn. The police
determined that the driver's license had been suspended or revoked.
Raymond Harris was a passenger in the car. The officer testified that Harris' behavior had aroused
no suspicion. But he testified that his normal practice was to determine if a passenger could drive
the car. Yet instead of simply asking Harris this question, the officer asked Harris for identification.
The officer then ran Harris's ID through county dispatch and determined that Harris had an
outstanding warrant. The arrest and search of Harris produced a rock of cocaine. Harris then
moved to suppress the cocaine.
The court began by citing Gonzalez for the proposition that a traffic stop is limited by the principles
of Terry v. Ohio, 392 U.S. 1 (1968). In determining whether the traffic stop is reasonable, Terry uses
a dual inquiry: first, whether the officer's action in initiating the stop was justified and, second,
whether the officer's action during the stop was reasonably related in scope to the circumstances
that justified the stop in the first place. The "scope" inquiry depends on two factors: both the
duration of the stop and the manner in which the stop is conducted. The scope requirement is a
"commonsense limitation on the power of law enforcement officers... It prevents police from
transforming a limited traffic stop into a general inquisition." Harris, quoting U.S. v. Holt, 264 F.3d
1215, 1240 (10th Cir. 2001) (Murphy, J., concurring in part and dissenting in part).
Relying on its test outlined in Gonzalez, the court came to three conclusions. First, it held that
running the background check on Harris's ID bore no relation to the original reason for the stop.
Second, the court found that the officer had conceded that he ran the background check on Harris
without any reasonable suspicion of any wrongdoing on Harris' part.
Finally, it held that the background check was clearly beyond the scope of the traffic stop, for even if
it did not prolong it temporally, it certainly transformed the nature of the encounter from a routine
citation stop into a general investigation of past wrongdoing of the passenger. Thus, the court
quashed Harris' arrest and the fruits of the resulting search.
The court used a similar analysis in People v. Caballes. One state Trooper Gillette radioed the police
dispatcher that he was stopping Caballes for driving 71 mph in a 65-mph zone. A Trooper Graham
heard the broadcast and immediately proceeded to the scene of the stop with a drug-sniffing dog.
While Gillette was writing a warning ticket, Graham walked the dog around Caballes' car. The dog
alerted and the police recovered drugs from the trunk.
Again, the court relied on the second prong of the Terry inquiry. Relying on People v. Cox, it held
that the use of the drug-sniffing dog without any reasonable articulable suspicion of drugs
improperly broadened the scope of the traffic stop. The police had absolutely no grounds for
expanding a stop for speeding into an investigation for drugs. Therefore, the court suppressed the
drugs found in the trunk.
The dissents in both Harris and Caballes are fundamentally flawed. Yes, the Caballes dissent is
correct in noting that a dog-sniff is not a "search" under the Fourth Amendment (see U.S. v. Place,
642 U.S. 696 (1983)). And, yes, the Harris dissent is also correct that "background checks" do not
really implicate any reasonable expectations of privacy under the Fourth Amendment.
Yet these observations are completely beside the point. The issue is not whether the actual police
tactics -- the dog-sniff and the background check -- per se implicate the Fourth Amendment. The
point is that the police should not be able to engage in any tactic that improperly expands the scope
of a stop.
This concept is illustrated by the New Jersey Supreme Court's decision in People v. Carty, 179 N.J.
632 (2002). There, the court held that asking a driver during a routine traffic stop for consent to
search for drugs is improper unless the consent request was based on reasonable suspicion that the
car contained drugs. Although police are usually free to ask anyone for consent to search, it is
different during a traffic stop. Asking for consent -- like the dog-sniff in Caballes and the
background check in Harris -- is a tactic that improperly changes the scope of the stop and for that
reason violates the Fourth Amendment.
The Illinois Supreme Court has done an extraordinary job of preventing police from turning pretext
stops of minority motorists into fishing expeditions for drugs and weapons. Although the Illinois
legislature gave the defense some nice gifts this year, the Illinois Supreme Court may have
bestowed the best gift -- a trip to Disneyland.