Carpundit on Gut Feelings

Carpundit (echoed by daleynews) disagrees with my gut feeling post as to the "every day" version I blogged about. He begins by laying out the path to an arrest as he sees it:

Observation
   Suspicion
      Reasonable Suspicion
         Probable Cause
            Arrest

It's a fairly accurate layout of what is supposed to happen. While he says gut feeling is somewhere between Observation and Suspicion I'd put gut feeling right there with Suspicion (but that's a quibble not worthy of actual argument).

He's correct in that an officer should not be able to do much of anything with a mere gut feeling. Unfortunately, that's often not the way it works in the real world.

In my primary jurisdiction here is a fairly typical "gut feeling" stop. The police are in a pack - an unmarked car, a marked car, and the car with the dog. A young male drives down Jeff Davis Highway (the local red light district) and the marked car pulls out behind him. The uniformed officer looks for a reason (3 mph over the limit, 10 mph under the limit, air freshener on the rear view mirror, tinting on windows, cracks in the windshield, lights that are burnt out, a crack on a turnsignal cover, weaving 2 time within the lines of the lane, &cetera) and since everyone is breaking the law in some manner at all times has little trouble finding a reason to stop the car. The uniformed officer takes the license and registration and runs a check. Often the young man is pulled out of his car and patted down for officer safety purposes - this always happens if there are two or more in the car. The plain clothes guys watch the young man while the uniformed officer runs his papers. By this time the dog shows up and walks around the car performing a magical non-search to find out if anything is in the car. And just to be on the safe side they'll run the dog past the young man too. Then they arrest him or send him on his way "with a warning." I have no idea how often they do that and come up snake-eyes. I do know the above stop happens to a lot of my clients (each stop with its own variation of course).

This stop is sanctioned by the Supreme Court under Whren. Carpundit characterizes Whren: "where the lawful motor vehicle stop is pretextual, it is not pretext for an arrest, but pretext for the opportunity to develop such further specific and articulable facts as the officer may." This is true as far as it goes. However, the pretext is for something wider than just an ability to potentially develop evidence. It is a pretext for a clearly unconstitutional seizure in violation of the 4th Amendment. Without the Supreme Court's sanction of this sort of thinly veiled constitutional violation the officer would generally not be able to develop anything above generalized suspicion (a technical term meaning gut feeling). Nobody believes the fictional reason given for the stop but the courts pretend that the reason given was the actual reason for the seizure.

"[W]hat would we do with Whren? Would we say an officer cannot stop a motor vehicle law violator unless that is the only reason for the stop? That is, a motor vehicle stop may only be made if the officer has no reason to think anything criminal is afoot beyond the broken taillight lens?

As a Defense Attorney who sees violation after violation of the Constitution swept under the rug - all in the name of Whren - I could tell you what I'd like to see done with it: 8th Circle - Hypocrites. However, as a mere mortal I must settle for less. I'd take what the Court should have said the first time:

"An officer may not exceed the parameters of the stop. No proactive steps may be taken to expand the scope of the stop beyond the original purpose. Therefore, no dog or physical tool may be used to scan the car for things not plainly noticeable. No questions may be asked which would further investigation of a potential crime for which the officer has not developed reasonable articulable suspicion.

Of course, an officer cannot be expected to ignore that which his senses tell him is present. If he sees an illicit item in plain view or smells something which indicates illicit activity he may and must act. However, at trial the judge must find, to a prepoderance standard, that the stop was not a pretext to enable the officer to unconstitutionally seize the suspect in order to develop evidence outside of the parameters of the stop."

And I offer that quote free of charge for whichever Supreme Court Justice is brave enough to write that opinion (the footnote would probably guarantee me business for life).

I'm not even going to start on the Terry abuses today. They're as bad as Whren, if not worse (especially the "pat downs"). I've been here writing far too long already today and Terry would take several more hours.

I don't have a problem with "gut feelings" per se. As I pointed out in my first post, they are unavoidable and often based on experiential biases which have come into place for logical reasons. Still if an officer cannot articulate individualized reasonable suspicion he should not be saved by a technicality when he acts in a manner which clearly violates the prohibition against unreasonable searches and seizures.