Wednesday, May 25, 2005

Second Circuit Criticizes Supreme Court Rationale in Hodari D.

U.S. v. Swindle, Docket No. 03-1773 (2d Cir. May 11, 2005) (Feinberg, Cardamone, and Parker)(Op. by Feinberg)

In a refreshingly frank decision, the Second Circuit upheld the denial of a suppression motion, finding that it was "constrained by relevant Supreme Court precedent" in affirming the legality of a seizure. In doing so, the Court was highly critical of that precedent -- California v. Hodari D., 499 U.S. 621 (1991) -- finding no "principled basis" for the decision.

The facts of Swindle are straightforward. While on patrol in an unmarked car in Buffalo, police were searching for a suspect whose physical description did not match that of the defendant, Swindle. While patrolling, they saw Swindle exit a "known drug house" that the suspect had supplied in the past, get in a car that resembled a car that the suspect had "been seen near" and drive away. The officers followed the car for a short time and then flashed their lights and attempted to pull him over. Swindle disobeyed the order, continued to drive, committed several traffic infractions, tossed a bag of crack cocaine outside the car, and fled on foot after eventually pulling over. The police caught him and charged him with possessing the crack.

The Court held that the police officer's initiation of the flashing lights constituted an order to stop. The Court further found that the police had no basis under Terry to initiate such a stop. Mr. Swindle did not match the description of the suspect they were looking for, he was not driving the same car as the suspect's (only a similar make to a car the suspect had "been seen near") and he had not committed any traffic infractions. In sum, "Swindle was simply a black man in a high-crime area driving a car that the wanted fugitive had previously been seen 'near." The Court was strongly critical of the officers conduct, calling it "a clear abuse of police authority." The Court thus had "no difficulty concluding that the officers acted unreasonably in ordering Swindle to pull over."

Unfortunately for Mr. Swindle, the Court felt constrained by Hodari D. in finding that the conduct to be evaluated for judging probable cause for a seizure includes the defendant's conduct after the unreasonable order to stop but before he was actually seized. Thus, even though the initial order to stop (by flashing police lights) was unreasonable and without cause, Mr. Swindle's subsequent conduct of violating traffic laws, tossing the drugs and fleeing on foot, did provide the officers with probable cause for the seizure. The Court did suggest, however, that Mr. Swindle might have a civil remedy for the abusive police conduct: "Although we are precluded from from holding that the officers' unreasonable order violated the Fourth Amendment, we believe that it was an abuse of authority for which Swindle and others like him might seek redress under a source of authority such as the Fourteenth Amendment or some provision of state law."

Mr. Swindle also argued that the initial order to stop was itself a seizure. While the Court was sympathetic to this argument, it once again felt constrained by Supreme Court precedent. In addition to Hodari D., the Court cited County of Sacramento v. Lewis, 523 U.S. 833 (1998) holding that "a police pursuit in attempting to seize a person does not amount to a 'seizure' withing the meaning of the Fourth Amendment." The Court was clearly troubled by this rule, noting that "a substantial argument could be made that a broader definition of 'seizure' -- or some other remedy -- is required to adequately protect Fourth Amendment values from the harms flowing from police initiation of Terry stops without reasonable suspicion."

The Court concluded with a final lament about the Hodari D. line of cases:

"Even if the kind of order given in Swindle's case is rare -- and we do not suggest that it is -- we see no persuasive reason for the law to tolerate it. In view of what we believe to be the controlling cases, however, we must affirm a conviction that was achieved with evidence obtained by an abuse of police power. A remedy for Swindle's Fourth Amendment complaint can come only from higher authority."

Whether that "higher authority" refers to SCOTUS or some other more-ethereal being, it would appear that Mr. Swindle's chances of ever receiving satisfaction from his Fourth Amendment claim are equally poor.

Posted by David Patton


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