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

Legal Issues

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.”

Filed Under: 7th circuit, fausto lopez, hunches, law enforcement, police, pretextual stops, probable cause