Thursday, February 25, 2010

Arrest illegal, search legal, conviction stands

Here is an odd twist for you. Be certain that you not only remember your right to remain silent, but that your friends and passengers do as well.

Law enforcement set up in a local establishment's parking lot to review the entry procedures for a warrant they were going to execute upon X's house for alleged drug offenses. As law enforcement spread out their maps on the hood of their vehicle and suited up for the big raid, along came X in his sport utility vehicle. X pulled up into the stall next to the plain clothes entry team. Law enforcement quickly gathered their items, jumped into their vehicles and began to watch.

A few minutes later, my client, "Y," pulled up in a car and parked next to X. Y was a passenger, with his girlfriend driving. Officers testified that Y got out of the vehicle and entered X's vehicle. Officers observed Y bend down while in X's vehicle. A few seconds later, Y exited X's vehicle and re-entered his girlfriend's car. Officers did not observe drugs, nor money exchange hands.

As Y and his girlfriend left, law enforcement stopped the vehicle as it was exiting the parking lot. Law enforcement then pulled out Y at gunpoint, handcuffed him and had him sit on the curb. Y's girlfriend then told law enforcement officers that Y had just purchased narcotics and the drugs were in his sock.

The district court ruled that the stop, arrest and search were all legal. The Appellate Court took a slightly different view, but the result was the same. The Court of Appeals found that the stop was legal as officers had a reasonable, articulable suspicion of criminal activity to justify the investigatory stop. Detectives had watched a suspected drug dealer under investigation stop in a large commercial parking lot far from the store entrance in a vehicle that he had driven to three recent controlled buys and that was subject to an active search warrant for drugs. Y had stopped next to the drug dealer's car, entered the drug dealer's car, reached down and returned to his own car in less than one minute. Therefore the stop was legal according to the Court of Appeals.

However, the arrest is a different story. The Appellate Court found that the officer did not have enough probable cause to arrest the Y. The court reasoned that the circumstances easily justified the stop and Y's girlfriend told detectives that Y had purchased drugs and that the drugs were in Y's sock. However, the Court found that these statements and subsequent discovery of the drugs occurred only after Y's arrest (being pulled out of the car at gunpoint) and therefore cannot establish probable cause for that arrest. Certainly the statements and circumstances are suspicious, but a person cannot be arrested "merely because he is found in suspicious circumstances." Therefore, the Court of Appeals ruled the arrest to be illegal.

That should end the inquiry, right? Well, not quite. The Court then stated that while I was correct and the arrest was illegal, that did not mean that the evidence found on Y's person needed to be suppressed. The Court did not agree that this evidence in Y's sock was fruit of the poisonous tree and that it was not evidence seized in violation of the Constitution, which would call for suppression. Instead, according to the court, the discovery was not the product of any police illegality but of a valid stop that resulted in his girlfriend affirming a sale and the location of drugs. Therefore, the conviction stands.

If only the girlfriend would have remembered her Constitutional Right to remain silent, we may have won this case. If you are ever found in this situation, be sure to request an attorney and invoke your right to remain silent.

Patrick Flanagan

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