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Dec. 2 — Several judges on Seventh Circuit seemed receptive at oral argument Nov. 30 to the suggestion that a special street-crimes unit in Milwaukee violated a car passenger’s rights when they used a suspected parking infraction as a pretext to pounce on the vehicle in SWAT-team fashion in the hope of discovering “bigger and better things” ( United States v. Johnson, 7th Cir., No. 15-1366, argued 11/30/16, on rehearing in 823 F.3d 408).
“There’s a lot of dislike of the police and you can understand why when they overreach like this,” Judge Richard A. Posner said at the en banc hearing.
It sounds like the government wants us to adopt a rule that gives police authority to go down rows of parked cars in our major cities and demand that all passengers get out whenever it appears a car has “overstayed its welcome at the parking meter,” said Chief Judge Diane P. Wood.
A three-judge panel last May rejected by a 2-1 vote Randy Johnson’s argument that the police violated the Fourth Amendment because they hadn’t observed the car long enough to discern whether it was illegally parked or whether it was lawfally discharging passengers in front of a liquor store at 7:25 p.m.
Officers don’t need to negate every possible defense before investigating a reasonable suspicion that a traffic offense is being committed, the panel said in an opinion by Judge Frank H. Easterbrook.
In dissent, Judge David F. Hamilton predicted that allowing police to stop and frisk minorities for suspected parking violations will only encourage police to investigate motorists for “parking while black.”
That phrase didn’t resurface during the hour-long argument, however. The judges instead wrestled with the question of whether the same broad latitude that officers have in traffic stops should be extended to the investigation of parking infractions.
Johnson was charged with being a felon in possession of a firearm after officers noticed him making furtive movements and trying to conceal a gun when the officers lit the car up with spotlights.
One of the officers admitted that that part of the crime unit’s job was to “look for smaller infractions and hope that possibly they may lead to bigger and better things.”
Joseph A. Bugni, of the Federal Defender Services of Wisconsin, told the court that the officers’ conduct here didn’t qualify as a reasonable Terry stop because the officers didn’t take any steps to verify that there was a violation that needed investigating.
Bugni conceded that the car was idling outside a liquor store in apparent violation of Wis. Stat. § 346.53, which makes it illegal to park within 15 feet of a crosswalk. But the police pounced without making any effort to figure out whether the car was receiving or discharging cargo or passengers, which is an exception to the statute.
“You can’t come in with five police officers in two squad cars and box someone in after just five to 10 seconds of observation,” Bugni said.
They could’ve parked and waited, they could’ve walked up and initiated a low-key encounter or they could’ve driven around the block to see if the car was still there when they returned, Bugni said.
Judge Diane F. Sykes, echoing Easterbrook’s opinion in the panel decision, suggested that the police didn’t need to do any of those things.
“Under well-established case law officers aren’t required to negate any explanation that might prove the conduct is innocent,” Sykes said.
Easterbrook suggested at oral argument that the court didn’t even need to reach Johnson’s constitutional claim because it seemed clear that the gun would be admissible anyway under the inevitable discovery doctrine.
Keith S. Alexander, of the Department of Justice, Washington, told the judges that this case wasn’t a Terry stop case, but was instead controlled by Whren v. United States, 517 U.S. 806 (1996), which held that the Fourth Amendment allows pretext traffic stops so long as the officers have an objectively reasonable basis to make a stop.
He also cited Maryland v. Wilson, 519 U.S. 408 (1997), which clarified that officers have the authority to routinely order motorists to get out of their cars, even in the absence of case-specific indicators of dangerousness.
Are you saying the level of government interest, which is clearly minimal here, plays no role in the analysis and that any intrusion is reasonable? asked Chief Judge Wood.
Judge Hamilton pointed out that Whren and Wilson both involved traffic stops and that the U.S. Supreme Court has never stretched those cases to include investigations of suspected parking violations.
“That would be an extraordinary extension in terms of what can happen on the streets of our cities,” he said.
“Every circuit that has addressed this issue has applied Whren to parking violations,” Alexander replied.
Are you saying there are no limits? Wood asked.
Your position, then, is that the police can be as stupid as they want and can’t be required to be reasonable when they deploy force, Posner interjected.
Well, Alexander said, Whren makes clear that a balancing test might be appropriate if the search or seizure was conducted in an “extraordinary manner.”
What would qualify as “extraordinary”? Wood wondered.
“If the officer shot all the tires or threw a grenade in, that would be considered extraordinary,” Alexander answered.
This prompted one of the judges to mutter into her microphone, “Oh my God.”
To contact the reporter on this story: Lance J. Rogers in Washington at LRogers@bna.com
To contact the editor responsible for this story: C. Reilly Larson at email@example.com
The oral argument can be heard at http://src.bna.com/krh.
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