The Fourth Amendment is soft on crime

Sometimes the bad guy goes free. In this case, the Court of Appeals reluctantly says the police overreached in searching a motorist who was connected with a robbery conspiracy. The Court says it had no choice; the Fourth Amendment compels this result.

The case is United States v. Cunningham, decided on August 31. Defendant hung around some bad people. A few months after they committed a heinous robbery, the police stopped defendant's car as he was on his way to commit another robbery. Defendant was driving with a guy named Scott when they ran a red light. The police approached the car. This is what they saw: Defendant's arm was moving up and down in the middle console area. When the police approached, defendant was talking on his cellphone and would not put it down when the police told him to do so. Defendant then fumbled around the console looking for his license and registration. Eventually, pursuant to the policeman's directive, defendant exited the car. Defendant was frisked, and a legal pocketknife turned up on his person. The other officer saw Scott's body move "too far left into the middle area [of the car] where you would not be seated." As one of the officers continued his search of the car, defendant became fidgety and repeatedly looked over his shoulder. The police eventually found illegal weapons in the car.

The weapons are suppressed, the Court of Appeals (Lohier, Calabresi and Lynch) holds, reversing the district court, which upheld the search. The Second Circuit feels bad about this, noting its high regard for the trial judge. But the law is the law. Under Supreme Court authority, the police may search a stopped vehicle upon "a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant to officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons." This is like a Terry stop (or a "stop and frisk") on the highway.

The defendant and his passenger may have acted a little strange, but there was not enough "reasonable and articulable suspicion of danger justifying the search of Cunningham's car as protective." While the Court of Appeals suspects the defendant and Scott "were hiding something and up to no good," that does not mean the police have the right to search the vehicle. As for the funny arm movements, "We are hard pressed to see how a driver in a high crime area in the Bronx (or anywhere else, for that matter) moving his right arm and hand around the center console to retrieve a smartphone can reasonably suggest that danger lurks any more than a suburban father or mother reaching for a smartphone from the center console after a traffic stop to call a spouse or relative could be considered dangerous." As for defendant's delayed reaction to the officer's initial directives, while a little fishy, it was not enough to show defendant was dangerous. And Scott's contorted seating position was also insufficient to prove he was hiding something dangerous.

The Court of Appeals is repeatedly apologetic about this holding, even offering a hypothetical about two women or businessmen acting as defendant and Scott did. "Virtually everyone will agree that the police officer under those circumstances would have overstepped if they conducted a protective search of the passenger compartment on the ground that the women (or the businessmen) were dangerous and might gain immediate control of a weapon."