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Court Tells Cops Playing Hunch Roulette Is No Way To Run An Investigation

from the you're-free-to-go,-they-surrounded dept

There are many routes law enforcement can take to end up in the promised land of Probable Cause. But the point of departure matters. While a routine (read: pretextual) stop can develop into a situation where a search is justified, the same can't be said about the search at the center of this recent Seventh Circuit Court of Appeals decision. While it's true probable cause may take time to develop, it needs to be an organic process starting with reasonable suspicion, not a series of guesses being explored until one of them pays off.

No arrest was effected during this extended/distended process, but officers still keep appellant Fausto Lopez quasi-detained until they could find something to arrest him for. It all started with a questionable tip. From the decision [PDF]:

Law enforcement officers detained and frisked defendant-appellant Fausto Lopez after observing him and his brother load paper bags into Lopez’s garage. The officer who ordered the stop had a “hunch” that the bags contained drug-trafficking contraband. That hunch was wrong. It had been based on a tip the officers had obtained the previous night from an informant detained for suspected drug trafficking. The informant stopped cooperating with the officers as soon as he was out of their sight.

Ah, the reliable CI -- a person whose interest in remaining out of jail would never result in the production of bogus information. At that point, Lopez should have been free to go. The officer was wrong and there was no evidence of criminal activity. But that's not what happened.

After finding no contraband, the officer who had ordered the stop realized that his hunch had been mistaken. Nevertheless, eight officers continued to detain Lopez. At one point during this detention, the lead officer told Lopez that he was “free to go.” Yet the officers kept possession of Lopez’s cellphone and keys, effectively restraining his liberty to leave and stripping the assurance of meaning.

"Free to go" means "free to go," not "free to go but without your phone or vehicle." In this case, the "free to go" appears to have been offered up as a disclaimer -- an attempt to pre-absolve the officers for the constitutional violation that came next.

While Lopez was still detained, the officers eventually obtained his permission to search his house based on another hunch that Lopez kept drugs there. This second hunch proved correct. Officers recovered drugs and a gun from the home.

The court points out that, despite the officers' assurances Lopez wasn't being detained and was free to go, it was obvious neither of these statements were true.

The lead officer told Lopez that the police were doing an investigation but cautioned that he was not under arrest and did not have to answer the officers’ questions. The officer also told Lopez he was free to go. Still, since Lopez was already at home and the officers had taken possession of his van, his car keys, and his cellphone, it is hard to see what practical effect this assurance might have had.

The officers then obtained permission to search the garage from Lopez. Again, they failed to find any drugs, paraphernalia, money, or weapons. All this was done while Lopez was "free to go" -- in other words, enter his own home via a garage containing no less than eight police officers, one of whom still had Lopez's phone and car keys in his possession. The incongruity continued until the cops secured "consent" to search Lopez's home. At this point, drugs, money, and a gun were recovered.

The lower court found in favor of the government, somehow deciding an officer saying someone is free to go makes everything that occurs after that consensual, even if it's clear the person was never free to go. The appeals court disagrees with everything about the lower court's decision, starting with initial encounter in Lopez's garage. This first search of Lopez was predicated on a tip from an informant who immediately stopped talking to police officers (and did not answer his phone) as soon as he was cut loose from custody. Zero investigatory work was done to corroborate the tip or the tipster's reliability. What officers observed did not align at all with what the informant told them they would see if they approached Lopez's residence. Nonetheless, without even reasonable suspicion, officers searched Lopez and began questioning him.

The initial seizure of Lopez fell short of the Fourth Amendment’s requirements for Terry stops. Remember the facts in the tip: The informant said that during a typical transaction he drove a white Chevrolet Malibu into the garage, and the exchange of drugs for money took place inside the garage after closing the door. On the day of the seizure, however, the police observed a white van pull up next to the garage while the brothers exited the vehicle and unloaded paper bags into the garage from the alley. No courier; no white Malibu or similar vehicle; no concealing the vehicle inside the garage to avoid witnesses. The officers’ observations that day simply did not corroborate, even roughly, the informant’s story. The officer who decided to stop Lopez could only guess what was in the bags Lopez carried—he operated on no more than a hunch. He and his fellow officers failed to undertake “even a modicum of additional investigation” to see if the Lopezes’ or others’ actions matched the informant’s tale or to wait for Lopez’s actions to create an independent basis for reasonable suspicion.

The court goes on to point out that accepting the government's arguments would place citizens' life and liberty solely in the hands of criminal suspects hoping to avoid jail time. If officers are willing to act on tips from suspected criminals without further corroboration, it strips all reasonableness from "reasonable suspicion."

People under police investigation themselves could too easily deflect suspicion by redirecting law enforcement’s attention to others. If an unreliable and uncorroborated tip were enough to justify an immediate move to seize and question the subject, we would be restricting everyone’s liberty based on the optimistic hope that those who name names during interrogation do so in good faith. The reasonable-suspicion threshold sets a lower bar for state action than probable cause, but that bar has not slipped so low as to allow unreliable tips like this one to trigger the humiliating, involuntary seizures and sometimes violent encounters that we justify under the bland and familiar phrase “Terry stops.”

The government also argued Lopez gave consent to search the house. That may be, says the court, but it's not truly voluntary consent despite the officers' repeated (but bullshit) assertions Lopez was free to go.

[W]hile one officer was assuring Lopez that he was free to go, the other officers still had Lopez’s keys, van, and cellphone. At least eight officers remained on the scene at his garage and house. In this case, no reasonable person in Lopez’s shoes would conclude that one officer’s words meant more than all eight officers’ actions. Lopez remained in police detention for as long as officers functionally blocked his exit by the overwhelming physical presence of eight officers and by retaining his van, car keys, and cellphone. This detention violated the limited scope of intrusion that would have been permissible even if there had been reasonable suspicion for a Terry stop.

Since Lopez was being detained in violation of the Fourth Amendment, his consent to search the house cannot be deemed voluntary. No time had elapsed, there were no intervening circumstances, and the detention was not even arguably justified after the search of the garage turned up nothing incriminating.

With that, the government loses its conviction. The evidence is suppressed and Lopez's conditional guilty plea withdrawn. An invalid stop and brief detention tainted everything that came after it. The words "free to go" are supposed to mean something. In this case, the actions of the gathered officers rendered the phrase as meaningless as "stop resisting."


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Justin T Facts, 31 Oct 2018 @ 11:12am

    Techdirt again leaves out facts: alien with heroin

    A grand jury indicted Lopez for possession of heroin with intent to distribute under 21 U.S.C. 841(a)(1) and under 18U.S.C. 922(g)(5)(A) for possession of a firearm by an alien in the United States unlawfully.

    Those FACTS don't fit your bias, your slant, and how any normal reader will approach this, so Techdirt re-writer LIES by omission. (By the way, I've NO problem with the judge approaching it impartially: they're supposed to! BUT for Techdirt to leave out KEY FACTS when writing for laypersons NOT judging the merits of a claim is just -- typical.)

    The minion didn't even re-write much! Just copied from the PDF and left out what didn't fit bias.

    Again, police "hunch" is proved entirely accurate. Again, no argument over evidence. Again, known criminal alien hoping to escape by relying on lawyering to obtain the benefits of American principles while actively trying to destroy border control and health of persons within.

    And again, Techdirt is ADVOCATING the above over the margin of common sense and outside the bounds of common law.

    I ask at just what level Techdirt / fanboys would set aside their anti-police, pro-drug, pro-illegal-immigrant bias and decide that evidence found overwhelms all technical considerations? Dead seven year-old, say? Anyone want to state that if police had also found a child dead of heroin over-dose on this "hunch" you'd want the known criminal turned loose? ... No? -- OKAY, then you agree with me on the principle, are just arguing over degree.

    reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 31 Oct 2018 @ 11:19am

      Re: Techdirt again advocates Constiutional LAW

      Thanks to TD for reporting on the abuse of Constitutional Law carried out by the officers!

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Oct 2018 @ 11:23am

      Re: Techdirt again leaves out facts: alien with heroin

      I suppose if Law Enforcement followed the law when enforcing it the end result would be a criminal conviction. When they break the law their conviction gets tossed out and a "bad guy" gets away with the crime.

      reply to this | link to this | view in chronology ]

      • icon
        Chris-Mouse (profile), 31 Oct 2018 @ 1:54pm

        Re: Re: Techdirt again leaves out facts: alien with heroin

        Too bad the "bad guy" who gets away with a crime is the one wearing a uniform.

        reply to this | link to this | view in chronology ]

        • identicon
          Bruce C., 31 Oct 2018 @ 3:12pm

          Re: Re: Re: Techdirt again leaves out facts: alien with heroin

          Technically the bad guy that got away with the crime was the informant. Smart cops would detain the informant until the tip pans out, or go after him rather than force the situation based on a false tip.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Oct 2018 @ 11:25am

      Sites for that

      If you want reporting that focuses on how "illegal aliens" are poisoning your dog and forcing police to do backflips before they can do anything, then there are websites for that.

      This is not one of those websites. You want Breitbart, Fox, InfoWars, etc.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 Oct 2018 @ 11:37am

        Re: Sites for that

        Most of us don't want vigilante cops ruling the streets for whatever reason. Did those cops go after the parents of that child? Truly sad and STILL just as gut-wrenching when cops feel they have to break the law to enforce it. And then get a good faith pat on the arse by judges.

        reply to this | link to this | view in chronology ]

    • identicon
      Baron von Robber, 31 Oct 2018 @ 11:36am

      Re: Techdirt again leaves out facts: alien with heroin

      "A grand jury indicted Lopez for possession of heroin with intent to distribute under 21 U.S.C. 841(a)(1) and under 18U.S.C. 922(g)(5)(A) for possession of a firearm by an alien in the United States unlawfully."

      And that would be a great job if the police didn't f*#% things up.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Oct 2018 @ 11:53am

      Re: Techdirt again leaves out facts: alien with heroin

      Not sure what you are reading but the article does state that they found drugs and a gun. What the article was actually about was that the police violated basic rights to produce those results. Personally I am happy one less dealer on the road, but not if it breaks down a person's rights to do so. If you are so against our basic rights, would you be the first to volunteer for police to do a monthly sweep of your house to make sure you are not hiding anything illegal? Just to note, it would be hippocritcal to say no. Police can have a hunch but just do a proper investigation. Otherwise the community will start seeing the cops as the bad guys which is starting to happen.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Oct 2018 @ 12:02pm

      Re: Techdirt again leaves out facts:

      Like the fact you promised to leave forever?

      reply to this | link to this | view in chronology ]

    • icon
      JMT (profile), 31 Oct 2018 @ 3:07pm

      Re: Techdirt again leaves out facts: alien with heroin

      "I ask at just what level Techdirt / fanboys would set aside their anti-police, pro-drug, pro-illegal-immigrant bias and decide that evidence found overwhelms all technical considerations?"

      There is no level at which evidence should "overwhelm all technical considerations", because that would be illegal.

      Comments like this clearly display your ignorance of legal history and why there were laws put in place to protect the rights of the accused. There are very good reasons why there are laws covering police and prosecutorial behavior, usually centering around historic grotesque abuses of power that punished innocent people and did not serve the cause of justice. Most of these laws have been around a long time (and all around the world) because we figured out they were necessary a long time ago. They literally protect lives.

      Your allegations are completely baseless. Nobody here is defending the illegal acts that should've resulted in Lopez being punished. All criticism is directed at the illegal actions of the police that resulted in the case failing. Your ranting should be directed at them, not Techdirt.

      reply to this | link to this | view in chronology ]

      • icon
        Gary (profile), 31 Oct 2018 @ 3:43pm

        Re: Re: Techdirt again leaves out facts: alien with heroin

        JMT, it is obvious the poster doesn't understand either "Common Law" or Constitutional Rights. But it's willful ignorance.

        reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      John Smith, 31 Oct 2018 @ 4:08pm

      Re: Techdirt again leaves out facts: alien with heroin

      I completely agree. Masnick continues to strip away the rights of policemen because cops interfere with his ability to steal from content creators.

      Policemen also prevent him and his army of lawyers from making fun of me. I'm not worried though. An investigation into every anonymous coward is underway. When this site gets raped the way it richly deserves I'll be luaghing long and loud.

      reply to this | link to this | view in chronology ]

    • icon
      Coyne Tibbets (profile), 31 Oct 2018 @ 11:40pm

      Re: Techdirt again leaves out facts: alien with heroin

      Again, police "hunch" is proved entirely accurate. Again, no argument over evidence. Again, known criminal alien hoping to escape by relying on lawyering to obtain the benefits of American principles while actively trying to destroy border control and health of persons within.

      Suppose the subject was named Logan and the hunch(es) all proved wrong: Would that be okay with you? My guess is that you'd be fine with that, because if we can't trash innocent people's Rights based on weak hunches then we wouldn't be able to trash guilty people's Rights based on weak hunches.

      I mean, it just isn't reliable to go by the "he looks sort of guilty-ish" approach. If only there were some common principles that allowed us to distinguish the probably-innocent from the probably-guilty. Something like...probable cause, maybe. Hmmm...

      Say, would you mind if the cops dropped by your place tomorrow to search it based on a few weak hunches? You wouldn't want them to be unable to do the same to a Lopez, right? You wouldn't mind helping uphold the principle?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Nov 2018 @ 5:39am

      Re: Techdirt again leaves out facts: alien with heroin

      Again, police "hunch" is proved entirely accurate.

      And AGAIN, because POLICE fucked things up, their "hunch" is as worthless as your comment.

      I ask at just what level Techdirt / fanboys would set aside their anti-police, pro-drug, pro-illegal-immigrant bias and decide that evidence found overwhelms all technical considerations?

      I dunno, police doing their jobs properly and not fucking up like they did here? You know - competence.

      reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 1 Nov 2018 @ 12:24pm

        Hunches

        My understanding is that hunches cannot establish reasonable suspicion or probable cause. For protection of the public from discrimination, each and every step of escalation from increased attention to detainment to searches have to be justified by a step prior to it.

        Of course, that's not the case as it is (for many courts of law) when being nervous during a stop and not being nervous during a stop are both causes for reasonable suspicion and when going the speed limit and not going the speed limit are both causes for reasonable suspicion.

        But if we were going to be true to the intent of the fourth and fifth amendments, something wrong has to be in plain sight in order to draw the intention of law enforcement.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Oct 2018 @ 11:27am

    Its not hard to see why its very easy to dislike the cops to the point that its affecting every encounter we have with strangers in public where as once I might have made a few new friends throughout the course of a day, everyone is suspect and no one trusts anyone anymore because of SHIT LIKE THIS. I am just going to sail away from here and never look back.

    reply to this | link to this | view in chronology ]

  • icon
    Gary (profile), 31 Oct 2018 @ 11:40am

    Reporting

    Remember, when we can't always count on the courts to keep the cops legit it falls upon good faith reporting to shine a light on misuse of power like this.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 31 Oct 2018 @ 11:44am

    And the punishment for the cops is...?

    I'm guessing it'll be nothing beyond maybe some 'Be a little more subtle about it next time' ribbing from their superiors/other cops at the precinct.

    So long as the worst a cop can expect is losing a case and maybe a slap on the wrist for stuff like that it'll keep happening.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Oct 2018 @ 11:57am

      Re: And the punishment for the cops is...?

      this is why people claim there are no good cops, because if there were they would be crossing the blue line and doing the job that's left to journalists. Of course, that will never happen.

      reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 31 Oct 2018 @ 12:11pm

    have to say it..

    how many Dicks to make a Richard??

    reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 31 Oct 2018 @ 12:18pm

      Re: have to say it..

      ECA, I honestly never understand half of what you are saying. Today you have outdone yourself.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 31 Oct 2018 @ 12:49pm

        Re: Re: have to say it..

        I think ECA genuinely needs to know the answer to his question.

        The answer is two. Unless Richard is transgendered or a female or sadly lost his.

        reply to this | link to this | view in chronology ]

  • icon
    reader50 (profile), 31 Oct 2018 @ 12:21pm

    So the cops illegally seized "drugs, money, and a gun" from his home.

    I've read several of these suppression-of-evidence stories, where courts get it right. But I'm not clear on how the seizures work out. Does Lopez get his property returned?

    If the case falls apart, but the cops keep the money and sell the gun, then a perverse incentive remains. Never mind the case - do a fresh illegal search every six months. Lose the cases, keep the money, and sell the new guns.

    btw, why is money suspicious in a home? Or a gun? Are we all suspicious unless we're dead broke? Why didn't they seize only the drugs?

    reply to this | link to this | view in chronology ]

    • identicon
      Dan, 31 Oct 2018 @ 12:45pm

      Re:

      The drugs and the gun are both contraband (the drugs because they're completely illegal, the gun because it's illegal for him as an illegal alien to have it), so no, he doesn't get that back. The cash is a trickier question.

      reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 31 Oct 2018 @ 2:20pm

    Do we really have that many police?

    From what I get there's a lot of crime and few police officers, and the process of harassing Fausto Lopez over what appears to be hours by eight officers seems like super inefficient way to preserve peace and enforce law.

    Aren't these eight agents of state supposed to be doing everything in their power to assure that the next news cycle will only be about weather and sports?

    reply to this | link to this | view in chronology ]


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