To some cops, there’s nothing more inherently-suspicious than the invocation of rights. It appears they believe only guilty people do this. The innocent have no need for rights because if they have nothing to hide then they have nothing to fear.
It takes a court to remind officers that rights are rights everyone has, whether or not they’re guilty of anything. This case deals with an officer who treated someone’s invocation of his rights as the Constitutional approval he needed to search him. He was wrong. (via FourthAmendment.com)
It all started with a traffic stop that really wasn’t a traffic stop. Two officers staking out a “high-crime area” decided to follow a van that drove by them. After discovering the plate on the van actually belonged to a Chevy Silverado, the officers decided to initiate a stop. But it was too late. The van had already reached its destination and was parked in a driveway. The officers pulled up behind it and parked, exiting their car to speak to the driver. By the time they did this, the passenger, Antonio Arrington, had already exited the vehicle and headed towards the house.
While passengers can be questioned and searched in vehicles during traffic stops, Arrington was no longer in the van when the cops pulled up behind the vehicle to perform their “stop.” Arrington argued the officers had no reasonable suspicion to detain him and question him — acts that led to the discovery of drugs and a weapon.
Arrington is right, the court says [PDF]:
The Court agrees and makes two critical findings: (1) by the time Fryt initiated the traffic stop, Arrington was no longer a passenger in the van, was on private property doing nothing suspicious, and should never have been subject to an investigation in connection with the traffic stop; and (2) even if Arrington was still a passenger when the traffic stop was initiated, Norris admitted the only focus of his investigation was to investigate Arrington for other criminal activity. For this, he did not have the reasonable, articulable suspicion necessary for a continued investigatory detention.
The court says the traffic stop (such as it were) was justified. And that could have encompassed Arrington if he had still been in the vehicle. But the Supreme Court’s Rodriguez decision doesn’t just affect drivers. It also affects passengers. The speedy, but unrelated, criminal investigation is still a violation of rights, even if did not “unreasonably” prolong the stop. It’s the expansion that’s the problem.
In sharp contrast to Stepp, this Court knows exactly what Norris – the backup officer – was doing: he admittedly did not ask any questions about the traffic investigation. While not prolonged by the addition of time, the original traffic investigation was certainly unreasonably expanded. Rodriguez cautions that the reasonableness of the stop depends on what the police officer in fact does. Rodriguez, 575 U.S. at 357 (citing Knowles, 525 U.S. at 115-17). Norris – in fact – engaged in an investigation unrelated to the traffic stop.
Officer Norris tried to argue he did have reasonable suspicion to detain Arrington.
In concluding that Arrington was engaged in criminal activity, Norris testified that he relied upon only three things: (1) Arrington attempted to divert attention from himself by speaking loudly; (2) Arrington would not tell Norris what was in his pockets; and (3) Norris noticed an “irregular bulge” in Arrington’s pocket.
But the first of those three things was Arrington loudly telling the officer to leave him alone because he (correctly) knew his rights.
Officer Norris did not testify that Arrington became noticeably more nervous as time progressed. In fact, Arrington’s agitation with officers seemed to result from his repeated requests that they terminate his encounter when he informed them that he understood his legal rights.
That’s not acceptable, says the court.
Just as numerous courts have stated nervousness cannot be a reliable indicator of criminal activity, loudly asserting one’s right to terminate an encounter with officers does not provide reasonable suspicion for continued investigation of suspected criminal activity.
And, in a but-for-video twist, Norris’ own body camera made it clear the officer’s sworn assertions about Arrington’s behavior during the stop were untrue.
While Officer Norris testified that Arrington failed to comply with his commands, body camera video indicates otherwise. Arrington adhered to officers’ requests: (1) for his name; (2) for his relation to the property owner; (3) to see items in his pocket; and (4) to lift up his sweatshirt so officers could see that he did not have a weapon concealed in his waistband. This sequence of events substantially discounts the assertion that Arrington failed to follow basic commands or attempted to divert Norris’ attention from his pockets. Accordingly, the Court gives little weight to this in the reasonable suspicion calculus.
Everything seized during this stop is now gone, as if it had never been discovered. Considering this end result, the officer would have been better off listening to Arrington and deciding not to violate the rights he correctly invoked. Reasonable suspicion only exists when it’s reasonable, and here it was anything but.
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