Police Response to Parked Car Upheld, Dissent Says Motivated by Race

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By Bernie Pazanowski

Police had probable cause to approach a parked car for violating a Milwaukee parking law and then search it, the full U.S. Court of Appeals for the Seventh Circuit said Oct. 27 in a case that prompted a sharp dissent saying officers were motivated by race ( United States v. Johnson , 7th Cir., No. 15-1366, 10/27/17 ).

A gun that found in the car was therefore admissible against the occupant, who was charged with possession of firearm by a felon, the court said in an opinion by Judge Frank H. Easterbrook.

Dissenting Judge David F. Hamilton, joined by Judges Ilana Rovner and Ann C. Williams, argued that five officers in two squad cars pulling up to a car parked too close to a crosswalk was overkill and that the facts presented a classic “driving while black” case. The tactics in this case violated the Fourth Amendment, he said.

The traffic violation created probable cause to approach the car, regardless of any possible ulterior motive by the officers, the majority said. It added that even if a state exception for loading and unloading passengers applied, the Fourth Amendment only requires searches and seizures to be reasonable—it doesn’t require them to resolve all possible exceptions before approaching a stopped car.

The defendant “has never contended that the police considered the race of the car’s occupants when deciding to approach it, or when deciding to use two cruisers rather than one,” the majority said. It therefore refused to consider “whether, and if so when, using racial criteria to select among potential targets of investigation would require the suppression of evidence.”

The Office of the U.S. Attorney represented the government. Federal Defender Services of Wisconsin Inc. represented the defendant.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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