EARL E.

RISER, ATTORNEY AT LAW
1620 South Michigan Avenue ‡ Unit 611 ‡ Chicago, Illinois 60616 ‡ Telephone: (312) 566-0678
To: From: Re: Date: Curt Marceille Alma McCauley Matter of juvenile C.M. s contention of State s alleged improper seizure Monday, November 2, 2009

Issue Presented: Was an officer s order for a juvenile passenger, C.M., and the driver to exit a vehicle during a traffic stop motivated by a reasonable suspicion of criminal activity or a concern for his personal safety due to the circumstances, thereby amounting to a constitutional stop within the meaning of the Fourth Amendment, or was it motivated by C.M. s hostile attitude, thus constituting an improper seizure within the meaning of the Fourth Amendment? Brief Answer: According to a similar Florida case, R.H. v. State, 671 So.2d 871 (Fla. 3d DCA 1996), an officer s testimony that he had only made a prior observation of a conversation between vehicle passengers and an African-American male, and neither was concerned for his personal safety during an apparently lawful traffic stop, rendered the officer s subsequent discovery of cocaine unconstitutional within the meaning of the Fourth and First Amendments. Facts: On January 2, 2006, Officer Jones received a 911 emergency call concerning a liquor store robbery. He responded, investigated the scene, and took the store owner s statement, including a vague description that several children driving an unknown SUV, who threatened him with a gun, were responsible for the robbery. Hours later during his shift, Officer Jones saw the 2006 Cadillac Escalade that held C.M. and three other children. Officer Jones thought the children he noticed may have been responsible for the liquor store robbery, and followed the SUV until, frustrated after observing no traffic violations (except for his later testimony that he noticed the SUV weaving on the side of the road), he pulled the vehicle over without reason to support a pretext stop. Page 1 of 3

EARL E. RISER, ATTORNEY AT LAW
1620 South Michigan Avenue ‡ Unit 611 ‡ Chicago, Illinois 60616 ‡ Telephone: (312) 566-0678 He conducted the routine protocol of checking the license, registration, and insurance of the driver alone, without any call for assistance. Officer Jones issued a citation after noticing the driver s expired license, without question or mention of the robbery that motivated the stop. He testified the angry passengers began to mouth off to him, claiming harassment, causing Officer Jones to fear for his personal safety. He ordered the front two passengers out of the vehicle, without disturbing the rear passengers. Upon opening the passenger door, Officer Jones noticed a revolver, and arrested C.M. for possession of a concealed weapon. Analysis In R.H. v. State, Florida s Appellate Court ruled an officer s discovery of cocaine on a vehicle passenger resulted from an unconstitutional search, although the traffic stop that originated the search was decidedly lawful. R.H. was a passenger in a vehicle with three other passengers. The arresting officer, Officer Orenstein, noticed a conversation between the passengers and an African-American male while stopped on the road and decided to later follow the vehicle. The driver rolled through a stop sign, and Officer Orenstein pulled them over, issuing a citation to the driver for violating his glasses requirement. R.H., a minor, complained repeatedly about unjustified harassment from the officer, and Officer Orenstein ordered him to exit the car. The officer testified that he was not concerned for his personal safety at this time. The Appellate Court concluded that the traffic stop was lawful because it was concluded after the occurrence of a traffic violation. On the other hand, the court further concluded that the passenger s subsequent negative attitude and comments were protected by the First Amendment. Additionally, the Court upheld the passenger s Motion to Suppress the cocaine because Officer Orenstein s order to exit the vehicle was motivated not by a constitutional reasonable suspicion of criminal activity or concern for the his own personal safety, but by the passenger s hostile attitude, as testified to by the officer himself, in violation of the Fourth Amendment s rules regarding what constitutes proper search and seizure. In support of C.M. s assertion that Officer Jones conducted an improper seizure within the meaning of the Fourth Amendment and the trial court erred in denying his Motion to Suppress, although Officer Jones testified that he became fearful of his personal safety after dealing with the increasingly Page 2 of 3

EARL E. RISER, ATTORNEY AT LAW
1620 South Michigan Avenue ‡ Unit 611 ‡ Chicago, Illinois 60616 ‡ Telephone: (312) 566-0678 angry children, he never attempted to employ common procedure as a result, such as requesting back up, or approaching the SUV with his gun drawn to protect himself, even when he suspected the SUV may have held four armed robbers or when the passengers obviously became increasingly angry. Instead of immediately ordering the SUV to pull over at the suspicion of robbery involvement, he followed the SUV until he decided he no longer wanted to wait to observe an occurrence of a traffic violation to lawfully stop the vehicle, making the traffic stop not pre-textual (R.H. v. State, 671 So.2d at 871). He also failed to order all four passengers out of the vehicle before commencing his unlawful search of the vehicle, leaving the two passengers in the rear of the vehicle. His order seems to have resulted from the irritation he experienced at the passengers mouthing off, and not from a reasonable suspicion of criminal activity, which may have instead caused him to be instantly fearful of his safety the very moment he suspected he was dealing with potentially armed robbers, as opposed to waiting until the children mouthed off to make such a decision. On the other hand, in support of the trial court s decision to deny C.M. s Motion to Suppress the gun in favor of the State, unlike Officer Orenstein in R.H. v. State, 671 So.2d at 872, Officer Jones noticed the four children travelling in the SUV, fitting the description provided by the liquor store owner of the armed robbers, and then observed the SUV weaving on the side of the road. The officer had a reasonable suspicion of criminal activity due to the 911 call and subsequent investigation. After the stop, he testified he became fearful of his safety when it became apparent the children were angry and started mouthing off to him. He wanted to maintain some measure of control over the situation, and ordered only the front two passengers out of the vehicle as a result. According to the Fourth Amendment, due to the robbery incident, he had a reasonable suspicion of criminal activity when he noticed the vehicle. When he noticed the erratic driving, he had enough reason to initiate a pretext stop and question the group. Once the children began to display a hostile attitude, this gave him even more reason to become fearful, leaving him to lawfully search the vehicle, seize the gun, and arrest C.M.

Page 3 of 3

Sign up to vote on this title
UsefulNot useful

Master Your Semester with Scribd & The New York Times

Special offer for students: Only $4.99/month.

Master Your Semester with a Special Offer from Scribd & The New York Times

Cancel anytime.