Drug Roadblocks, 4th Amendment

Decided November 28, 2000

Indianapolis, et al. v. Edmond, James 99-1030: Are checkpoints
at which law enforcement officers briefly stop vehicular
traffic, check motorists' licenses and vehicle registrations,
look for signs of impairment, and walk narcotics detection dog
around the exterior of each stopped automobile unlawful under
the 4th Amendment?

By a 2-1 vote, a 7th Circuit Court of Appeals panel found fault
with the reasons Indianapolis gave for justifying its drug
roadblock program. The majority identified four situations in
which a random search might be constitutional:

1. A roadblock set up to catch a fleeing criminal, where there
is a suspect--the police have identified the criminal and have
only to find him--but it is infeasible to avoid an
indiscriminate search of others.
2. A hypothetical dynamite case, where no specific person is
under suspicion but the circumstances make it impossible to
prevent a crime without an indiscriminate search.
3. A regulatory search, the objective of which is to protect a
specific activity rather than to operate as an adjunct to
general criminal law enforcement.
4. The prevention of illegal importation of people or goods.
Text of U.S.Supreme Court Opinion: On Nov. 28, 2000, the Supreme
Court, by a 6-3 vote, affirmed, holding that because the
checkpoint program's primary purpose is indistinguishable from
the general interest in crime control, the checkpoints violate
the 4th Amendment. Appealed from 7th Circuit Court of Appeals
(183 F.3d 659)
Transcript of U.S.Supreme Court Oral Argument: Oct. 3, 2000
[PDF]

Supreme Court reaffirms that police must warn criminal suspects of Miranda rights

Decided June 26, 2000

DICKERSON v. UNITED STATES (pdf file)

The question before the Supreme Court in Dickerson v.
U.S. case is this: If a police officer forgets to recite Miranda or
a suspect talks to the police "voluntarily" before being advised of
his rights, may the confession be admitted in court?

Question: a voluntary confession may be admitted into
evidence in the government's case-in-chief under 18 U.S.C. 3501,
nothwithstanding that the confession was taken in violation of the
requirements of Miranda v. Arizona, 384 U.S. 436 (1966).

At issue is Section 3501 of the Omnibus Crime Control Act of 1968,
which says the failure to read the rights is one of several factors
in deciding whether the statement was made voluntarily. In other
words, the statute, passed just two years after Miranda, can be
construed as having been enacted to overrule Miranda.

The U.S. government has never sought to enforce Section 3501,
holding the Miranda rights to be paramount. And the constitutional
validity of Section 3501 has never been answered by the U.S. Supreme
Court, according to an independent analysis of the case by Alan
Raphael, who teaches at the Loyola University Chicago School of Law,
for the American Bar Association.
Indeed, a landmark 1996 Supreme Court ruling reaffirmed that police
must advise suspects of their right to remain silent in a decision
that linked Miranda rights to the Constitution's Fifth Amendment
protection against self-incrimination.

But last year, the 4th U.S. Circuit Court of Appeals ruled that what
Charles Dickerson told the police -- before they read him his rights
-- could be used in his 1997 trial in Virginia on bank robbery
charges.

The appeals court cited the little-used Section 3501.
The Supreme Court issued one of its most important criminal law
rulings in decades by upholding a 34-year-old decision requiring the
police to inform people being arrested of their Miranda rights. In a
7-2 vote, the nation's highest court refused to discard its 1966
Miranda decision and replace it with a less-stringent federal law
that allows voluntary confessions even when police fail to give the
warnings.

"We ... hold that Miranda and its progeny in this court govern the
admissibility of statements made during custodial interrogation in
both state and federal courts," Chief Justice William Rehnquist said
for the majority.

In short, the U.S. Supreme Court held that that Miranda, being a
constitutional decision of the Court, may not be in effect overruled
by an Act of Congress.

U.S. SUPREME COURT GIVES POLICE BROADER POWERS TO STOP AND SEARCH &
NARROWS A PERSON'S RIGHT TO AVOID CONTACT WITH POLICE
(ILLINOIS, Petitioner v. WILLIAM a/k/a SAM WARDLOW)
[January 12, 2000]

IS SUDDEN AND UNPROVOKED FLIGHT IN A HIGH CRIME AREA NECESSARILY
INDICATIVE OF ONGOING CRIMINAL ACTIVITY? SHOULD LAW ENFORCEMENT BE
ALLOWED TO MAKE TEMPORARY DETENTIONS OF ANYONE WHO FLEES AT THE MERE
SIGHT OF A POLICE OFFICER?

The State of Illinois asked the U.S.Supreme Court to announce a
"bright-line rule" authorizing the temporary detention of anyone who
flees at the mere sight of a police officer. Respondent countered by
asking the Court to adopt the opposite per se rule--that the fact
that a person flees upon seeing the police can never, by itself, be
sufficient to justify a temporary investigative stop of the kind
authorized by Terry v. Ohio, 392 U. S. 1 (1968).

The Court wisely endorsed neither per se rule. Instead, it rejected
the proposition that "flight is ... necessarily indicative of
ongoing criminal activity," adhering to the view that "[t]he concept
of reasonable suspicion . . . is not readily, or even usefully,
reduced to a neat set of legal rules," but must be determined by
looking to "the totality of the circumstances--the whole picture."
United States v. Sokolow, 490 U. S. 1, 7-8 (1989)
The United States Supreme Court held 5-4 (opinion by Rhenquist;
dissent by Stevens) that reasonable suspicion justifying a frisk
under Terry v. Ohio, 392 US 1 (1968) may arise when a person flees
at the sight of a police officer. Terry held an officer may conduct
a brief, investigatory stop when the officer has a reasonable,
articulable suspicion that criminal activity is afoot. Wardlow was
standing in a high crime area holding an opaque bag in Chicago.

After looking in the direction of two police officers, he fled and
ran into an alley where he was cornered. The Court did not adopt a
per se rule that flight always leads to reasonable suspicion, but it
found that under the circumstances, the officers did not violate the
rule set forth in Terry. The dissent agreed that a per se rule
stating either flight did or did not arise to the level of
reasonable suspicion should not be adopted, but disagreed that the
circumstances of the case rose to the level of reasonable suspicion.
Decided on 1/12/00 Oral Arguments on 11/1/99 Certiorari Granted on
5/4/99.

Are you persuaded that the mere fact that someone standing on a
sidewalk looked in the direction of a passing car before starting to
run is sufficient to justify a forcible stop and frisk?

____________________________________________________________________________________________________

Respondent Wardlow fled upon seeing a caravan of police vehicles
converge on an area of Chicago known for heavy narcotics
trafficking. When Officers Nolan and Harvey caught up with him on
the street, Nolan stopped him and conducted a protective pat-down
search for weapons because in his experience there were usually
weapons in the vicinity of narcotics transactions. Discovering a
handgun, the officers arrested Wardlow. The Illinois trial court
denied his motion to suppress, finding the gun was recovered during
a lawful stop and frisk. He was convicted of unlawful use of a
weapon by a felon. In reversing, the State Appellate Court found
that Nolan did not have reasonable suspicion to make the stop under
Terry v. Ohio, 392 U. S. 1. The State Supreme Court affirmed,
determining that sudden flight in a high crime area does not create
a reasonable suspicion justifying a Terry stop because flight may
simply be an exercise of the right to "go on one's way," see Florida
v. Royer, 460 U. S. 491.

Held: The officers' actions did not violate the Fourth Amendment.
This case, involving a brief encounter between a citizen and a
police officer on a public street, is governed by Terry, under which
an officer who has a reasonable, articulable suspicion that criminal
activity is afoot may conduct a brief, investigatory stop.

While "reasonable suspicion" is a less demanding standard than
probable cause, there must be at least a minimal level of objective
justification for the stop. An individual's presence in a "high
crime area," standing alone, is not enough to support a reasonable,
particularized suspicion of criminal activity, but a location's
characteristics are relevant in determining whether the
circumstances are sufficiently suspicious to warrant further
investigation, Adams v. Williams, 407 U. S. 143, 144, 147-148. In
this case, moreover, it was also Wardlow's unprovoked flight that
aroused the officers' suspicion. Nervous, evasive behavior is
another pertinent factor in determining reasonable suspicion, e.g.,
United States v. Brignoni-Ponce, 422 U. S. 873, 885, and headlong
flight is the consummate act of evasion. In reviewing the propriety
of an officer's conduct, courts do not have available empirical
studies dealing with inferences from suspicious behavior, and this
Court cannot reasonably demand scientific certainty when none
exists.

Thus, the reasonable suspicion determination must be based on
commonsense judgments and inferences about human behavior. See
United States v. Cortez, 449 U. S. 411, 418. Officer Nolan was
justified in suspecting that Wardlow was involved in criminal
activity, and, therefore, in investigating further. Such a holding
is consistent with the decision in Florida v. Royer, supra, at 498,
that an individual, when approached, has a right to ignore the
police and go about his business. Unprovoked flight is the exact
opposite of "going about one's business." While flight is not
necessarily indicative of ongoing criminal activity, Terry
recognized that officers can detain individuals to resolve
ambiguities in their conduct, 392 U. S., at 30, and thus accepts the
risk that officers may stop innocent people. If they do not learn
facts rising to the level of probable cause, an individual must be
allowed to go on his way. But in this case the officers found that
Wardlow possessed a handgun and arrested him for violating a state
law. The propriety of that arrest is not before the Court. Pp. 3-6.
183 Ill. 2d 306, 701 N. E. 2d 484, reversed and remanded. Rehnquist,
C. J., delivered the opinion of the Court, in which O'Connor,
Scalia, Kennedy, and Thomas, JJ., joined. Stevens, J., filed an an
opinion concurring in part and dissenting in part, in which Souter,
Ginsburg, and Breyer, JJ., joined.

FOR TEXT OF U.S. SUPREME COURT CASE GO TO: ILLINOIS v. WARDLOW

Modified Safe Neighborhoods Act: Crack down on gun crimes, unlawful
use of weapons

April 13, 2000: Ending a four-month struggle between Chicago-area
lawmakers and their Downstate counterparts in the General Assembly,
Gov. George Ryan signed into law a revamped Safe Neighborhoods Act,
which makes illegal firearms possession a felony.

The compromise set up two distinct offenses --one a misdemeanor, the
other a felony --for unlawful use of a weapon. The deal satisfied
the demands of Chicago-area lawmakers eager to crack down on gun
crimes and those of Downstate legislators who wanted to protect
hunters.

The act makes it a misdemeanor for first-time, nonviolent offenders
to improperly transport an unloaded firearm. Doing so is punishable
by up to one year in jail.
People who carry a loaded firearm or who have ammunition close at
hand will be charged with a felony, which carries a sentence of up
to three years in prison.

Also subject to felony charges are people caught carrying guns
without a valid state firearm owner's identification card, or who
are in violation of drug laws, belong to gangs, have had an order of
protection issued against them within the past two years or have
juvenile felony convictions.
It also would be a felony for those under 21 to possess a handgun
except when hunting or target shooting.

ANTI-CRIME LAW STRUCK DOWN BY ILLINOIS HIGH COURT:

The Illinois Supreme Court invalidated a state statute called the
Safe Neighborhoods law. At its core this law made possession of a
concealed weapon a Class 4 felony, established tougher penalties for
people caught within 1,000 feet of a school and made gunrunning a
felony. This "anti-crime" law also increased sentences for certain
gang-related crimes, as well as for offenses such as Aggravated
driving under the influence and defacing the identification marks on
guns. The ruling struck down provisions to treat gun running as a
felony and imprison juveniles convicted of first-degree murder.
People v. Cervantes, No. 87229 (12/2/99)

The court ruled that the law violated the Illinois Constitution's
single-subject rule by logrolling unrelated legislative items into
one bill. The purpose of the rule is to prevent lawmakers from
attaching unpopular legislation items to unrelated proposals with
popular support.

The 1994 amendment by P.A. 88-680 was effective January 1, 1995, and
will affect thousands of felony sentences. Chicago Police Supt.
Terry Hillard and Cook County State's Attorney Richard Devine said
that the court's action could put thousands of inmates back on the
streets. Devine said at least 20,000 Illinois inmates' sentences are
affected by the law being ruled unconstitutional, and he estimated
thousands might be eligible for release.

State law prohibits transporting a firearm in a vehicle unless it is
"broken down in a nonfunctioning state or not immediately
accessible." Specifically, the unlawful-use-of-a-weapon law
prohibits firearms from being carried within easy reach in a vehicle
or concealed on one's person. But it has dozens of exceptions. It
does not apply to hunters while hunting, licensed security guards,
military personnel and law enforcement officials performing their
duties or on the way to work, or to people at target ranges. In
addition, nearly all Illinois gun owners are required to hold a
firearm owner's identification card. The main exceptions are law
enforcement officials. Numerous categories of people are barred from
owning guns, including convicted felons, drug addicts, the mentally
retarded, undocumented immigrants and anyone convicted of battery,
assault, domestic assault or violating an order of protection in the
last five years.

Governor George Ryan announced a special session of the General
Assembly to redraft the law. Governor Ryan is urging state lawmakers
to re-enact the Safe Neighborhoods Act in its entirety. Speaking at
a special session of the legislature called to reconsider the
measure, which was declared unconstitutional by the Illinois Supreme
Court, Ryan noted that the court's ruling has "nothing to do with
the substance of the laws in this critical package." Ryan addressed
one of the more controversial provisions, vowing to veto any bill
that doesn't raise the illegal possession of a firearm from a
misdemeanor to a felony. "We had on the books a good law for almost
five years," Ryan said. "It's reduced crime. It's reduced
gunrunning. I want to make sure we put that law back on the books."

But state Senate President Pate Phillip and several gun groups are
against imposing the harsh penalty on first-time offenders. James
"Pate" Phillip (R-WoodDale) has vowed to oppose re -approval of a
key provision in the package that elevated the crime of unlawful
possession-use of a weapon from a misdemeanor to a felony. Phillip,
siding with the gun lobby, said the provision makes it hard for
hunters and other gun owners to transport weapons legally ."The only
argument (over the current proposal) is a very minute point for
first offenders," Philip said Tuesday. "These aren't criminals,
these aren't gangbangers. This is the first time that they've had a
crime. Once you're convicted of a felony, it's on your record. You
go try to get a loan, you're not going to get a loan. You try to get
a job, you're not going to get a job." The problem with the stricken
Safe Neighborhoods Act, Philip's spokeswoman Patty Schuh said, is
that it makes no distinction between habitual criminals who have
illegal guns and hunters or target shooters who have a firearm
identification card but improperly transport firearms in their cars."

(see 725 ILCS 5/122 and 735 ILCS 5/2-1401.)

(see 735 ILCS Sec. 5/10.101).

Meanwhile, any new law will apply only to future cases. Thousands of
convicted felons will re-petition the court to be re-sentenced as
misdemeanors (see 725 ILCS 5/122 and 735 ILCS 5/2-1401.)As to
individuals sentenced under the Act, post-conviction and/or
relief-from-judgement petitions will be filed, seeking a new
sentencing hearing--arguing that the the applicable statute of
limitations did not begin to run until the cause of action could
reasonably be discovered, ie, when the Illinois Supreme Court
decided Cervantes, 12-02-99.) As to individuals in custody for
offenses created by the Act, state habeas corpus should be filed,
seeking their immediate release(see 735 ILCS Sec. 5/10.101).

Defendants in pending cases will be sentenced under the law existing
prior to the 1995 amendments-- as misdemeanors, while others will
move to have their cases dismissed. Because of the proscription
against ex post facto laws, a defendant is entitled to elect to be
sentenced under either the law in effect at the time of the offenses
or that in effect at the time of sentencing. (People v. Hollins, 51
Ill. 2nd 68, 280 N. E. 2nd 710 (1972)

THE NATURE OF MAN: FEDERALIST PAPER No. 10. Madison warned that the causes of faction are sown in the nature of man. Their zeal for different opinions have divided them into parties, inflamed them with mutual animosity, and rendered them much more likely to vex and oppress each other than to cooperate for their common good. Does a pure democracy avoid this problem or did Madison propose a different form of government?

FEDERAL WHITE COLLAR CRIME - By Solomon L. Wisenberg. This outline will focus on the operational basics of defending an individual (as opposed to corporate) client during the pre-trial and trial stages of a federal white collar investigation. Though the focus is federal, many of the principles discussed apply with equal weight at the state level. Later outlines will deal with substantive federal white collar criminal offenses, the federal sentencing guidelines, and civil enforcement statutes.

Computer Crime and Intellectual Property Section (CCIPS) of the Criminal Division of the Department of Justice

COOK COUNTY CASE MONITORING: Do you practice in the Circuit Court of Cook County? Through the Cook County Circuit Clerk's website you can register for a FREE case monitoring service. Sign up at http://www.uscourts.com/states/illinois/Cook.Asp and the Clerk will send you an e-mail every time there's any activity in one of your cases.

EXPERT EVIDENCE: The second edition of Reference Manual on Scientific Evidence has been published and distributed to federal judges. Guess what--you, too, can obtain this valuable resource FREE with the click of a mouse! The manual can be downloaded in Adobe Acrobat format at http://air.fjc.gov/public/fjcweb.nsf/pages/16