Court says police search was illegal, prompting impassioned concurrence about police misconduct

A traffic stop that revealed the defendant had a gun and drugs results in a split Second Circuit ruling that declares the search illegal while the concurring judge bemoans the state of Fourth Amendment jurisprudence, stating there is not enough case law to protect the victims of police misconduct.

The case is United States v. Weaver, issued on September 15. This case arose in Syracuse, where the police saw Weaver in a high-crime area stare at a passing police car, adjust his waistband and, once he entered a vehicle as a passenger, squirming in his seat as if he were trying to hide something. The car was pulled over on a traffic violation (failure to properly signal). So things started to go downhill after the police pulled over the car and focused on the passenger, Weaver, who pressed his pelvic area toward the vehicle in a non-subtle effort to prevent the police from completing the search. When the police completed the search, they found a gun and drugs.

Writing for the majority, Judge Pooler says this search violated the Fourth Amendment because, while the police had reasonable suspicion to believe that Weaver was hiding something, the police had no reason to know he was hiding a firearm. That is the majority's interpretation of Terry v. Ohio, 392 U.S. 1 (1968), the landmark Supreme Court ruling that authorizes warrantless pat-frisk searches if the police have reasonable suspicion that criminal activity is afoot. Judge Pooler focuses on the cases holding that the reasonable suspicion in the automobile context should focus on officer safety. Hence, the weapons emphasis.

In dissent, Chief Judge Livingston challenges the majority's "startling and untenable conclusion," stating that Terry "does not limit protective frisks to circumstances in which the officer knows that a suspect is armed and dangerous, but permits frisks based on the reasonable belief that a suspect may pose such a threat, even when the suspect's conduct is ambiguous and susceptible of an innocent explanation." On this record, Judge Livingston says, the officer had such reasonable suspicion.

The main event here is Judge Calabresi's concurrence, finding that Judge Pooler's analysis is correct and that Judge Livingston would take Fourth Amendment jurisprudence a step too far, although he acknowledges that the dissent "does not stretch the law all that much" in light of pre-existing case law. The problem, Judge Calabresi says, is that this appears to be a close case because many unlawful police stops are never litigated and therefore do not produce the case law that would confirm that this search was illegal. Not only have courts upheld questionable searches in order to prevent felons from walking free (an understandable tactic, Judge Calabresi recognizes), but the cases that would provide the right precedents in cases like this are often not even worth litigating because, in the civil context (whose cases may inform criminal cases as well) the victims of police misconduct do not sue because their potential lawyers will only take the case on contingency. The potential lawyer's judgment is influenced by qualified immunity jurisprudence under Section 1983 that allows appellate courts to excuse the officers' behavior because they did not violate clearly-established case law which, by the way, never develops into a robust Fourth Amendment jurisprudence because the courts in those cases often do not delineate what the law should be in future cases, even though they have the option to do so. So we have a scenario where much of the police misconduct case law favors the police and litigants have a difficult time proving that the officers violated the Fourth Amendment. Judge Calabresi concludes:

I write this concurrence in sadness and in hope. It is not for me or for other judges to find a way out of our current dilemma, hence my sadness. Yet recent events have  focused  attention  on  the  qualified  immunity doctrine. And  some have even suggested alternatives to the exclusionary rule. Finding an answer will not be easy. It will require careful and coordinated thought by the political branches, by the academy, and by judges as well. But we must do better.  The noxious effects of our current approach are all too obvious, and  are  manifested  both  broadly,  in  the  current  protests,  and  narrowly,  in  the instant case.