You Decide Answers
Chapter 2: The Sources of Criminal Procedure

Chapter 3: Searches and Seizures
You Decide 3.1
People v. Triggs, 506 P.2d 232 (Cal. 1973).
On the afternoon of December 19, 1970, Los Angeles Police Officer Richard Aldahl was on plainclothes patrol in Arroyo Seco Park in the City of Los Angeles. Accompanying Officer Aldahl were two fellow plainclothed officers. Officer Aldahl observed defendant enter the men’s room in the park. About 10 min later, David Crockett was observed entering the same men’s room. Defendant had not yet reappeared. About 5 min after Crockett’s entry into the men’s room, the three officers entered the “plumbing access area” of the park’s restroom building. From a vantage point connected with this area, Officer Aldahl was able to observe defendant orally copulating Crockett, while both Crockett and defendant were within a doorless toilet stall.
Officer Aldahl testified at the preliminary hearing that he had entered the plumbing access area at the park about 50 times for the purpose of ascertaining if any criminal conduct was occurring in the adjacent men’s room. Other than entering the restroom at a 10-min interval, a circumstance the officer had seen many times before in an innocent context, neither defendant nor Crockett had committed any suspicious acts. Officer Aldahl agreed with defense counsel that he had entered the plumbing access area on this occasion “to make an observation in case there was a crime committed.”
In Bielicki, a policeman used a pipe running through the ceiling to the roof to observe homosexual conduct inside the fully enclosed stall of a pay toilet in an amusement park restroom. The pipe had been installed purely for observational purposes in response to the park owner’s complaint to the vice squad. The policeman’s observation in Bielicki was held by a unanimous court to be a search. We held that such constituted a search because only by means of the clandestine vantage point had the policeman “secretly observed activities of petitioners which no member of the public could have seen, as they were carried on within the confines of toilet booths each enclosed by three walls and a door.” It was “undisputed that the activities of petitioners witnessed by [the arresting officer] were not ‘in plain sight’ or ‘readily visible and accessible’ . . . ” We further held that the search was unreasonable because the officer had begun his observations on the night in question with “no reasonable cause to arrest these petitioners. . . . [He] spied on innocent and guilty alike. Such a practice amounts to a general exploratory search conducted solely to find evidence of guilt, a practice condemned both by federal law [citations omitted] and by the law of this state. Lest Bielicki receive too restrictive a reading this court, again acting unanimously, decided Britt 5 months after Bielicki. The facts in Britt were substantially identical to those presented in the case at bench. The arresting officer had been stationed in the space between the ceiling of a department store restroom and the floor above. He was able to look down through two vents in the ceiling upon the toilet stalls in the men’s room below. Each stall was enclosed by partitions and a door, but the enclosures stopped 8–12 in. from the floor. The arresting officer observed from his position an act of oral copulation by Britt and his codefendant who occupied adjacent stalls and committed the crime from kneeling positions through the gap between the partitions and the floor.
The people attempted to distinguish Britt from Bielicki on three points: First, the vents in Britt through which the officer peered had originally been installed for a legitimate purpose; second, the toilets in Britt were free rather than pay toilets; and third, the activities observed in Britt were in “plain view” because of the gap between the partitions and the floor. These arguments were rejected: “The crucial fact in Bielicki was neither the manner of observation alone nor the place of commission alone, but rather the manner in which the police observed a place--and persons in that place--which is ordinarily understood to afford personal privacy to individual occupants.” Because the decisions in Bielicki and Britt were justified in part as protecting “expectations of privacy,” several subsequent appellate decisions have treated the presence or absence of a door to a toilet stall in which criminal conduct occurs as determinative of the legality of clandestine observation of that stall. Under such a concept of the law, it was reasoned that there is a presumption that conduct which could have been viewed by an officer from a place where the public had a right to be could not reasonably have been expected to be private. Language to the contrary in Britt which placed as much emphasis on the means of observation as on the place observed has been disregarded, and Bielicki has been limited to its facts in this line of. In Crafts, the last of these “doorless stall” cases, the court concluded that denials of petitions for hearings by this court of such cases indicated our acquiescence in their results and our consequent retreat from Britt. Crafts was the principal authority relied upon by the court below in denying defendant’s motion to suppress.
The people here urge us to hold that clandestine observation of doorless stalls in public restrooms is not a “search” and hence is not subject to the Fourth Amendment’s prohibition of unreasonable searches. This would permit the police to make it a routine practice to observe from hidden vantage points the restroom conduct of the public whenever such activities do not occur within fully enclosed toilet stalls and would permit spying on the “innocent and guilty alike.” Most persons using public restrooms have no reason to suspect that a hidden agent of the state will observe them. The expectation of privacy a person has when he enters a restroom is reasonable and is not diminished or destroyed because the toilet stall being used lacks a door.
Viewed in the light of Katz, the standard for determining what is an illegal search is whether defendant’s “reasonable expectation of privacy was violated by unreasonable governmental intrusion.” We do not retreat from our decisions in Bielicki and Britt, and under the rationale of those opinions, the suppression of the evidence used to convict defendant in the case at bench is required. As previously noted, Bielicki holds not only that general exploratory searches for evidence of guilt are violative of basic constitutional guarantee but also that clandestine observations of the interior of toilet stalls are searches subject to Fourth Amendment strictures because occupants of toilet stalls can reasonably expect their activities within them to be private. We added in Britt that such observation remained a search and hence subject to the Fourth Amendment’s ban against exploratory searches, even if the interior of the stall might have been open to view from areas accessible to the public.
We must remember in this regard that “both the U.S. Constitution and the California Constitution make it emphatically clear that important as efficient law enforcement may be, it is more important that the right of privacy guaranteed by these constitutional provisions be respected. [The] contention that unreasonable searches and seizures are justified by the necessity of bringing criminals to justice cannot be accepted. It was rejected when the constitutional provisions were adopted and the choice was made that all the people, guilty and innocent alike, should be secure from unreasonable police intrusions, even though some criminals should escape.” In seeking to honor reasonable expectations of privacy through our application of search and seizure law, we must consider the expectations of the innocent as well as the guilty. When innocent people are subjected to illegal searches--including when, as here, they do not even know their private parts and bodily functions are being exposed to the gaze of the law--their rights are violated even though such searches turn up no evidence of guilt. Save through the deterrent effect of the exclusionary rule, there is little courts can do to protect the constitutional right of persons innocent of any crime to be free of unreasonable searches.
Having concluded the clandestine observation challenged in the case at bench was a search, we reach the issue of the legality of that search. We may assume, without deciding, that the search fell within one of the limited class of searches for which a warrant is not required. Nevertheless, “[in] enforcing the Fourth Amendment’s prohibition against unreasonable searches and seizures, the [Supreme] Court has insisted upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution.” Probable cause exists when at the moment officers make an arrest or conduct a search “the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [defendant] had committed or was committing an offense. In the instant case, it was conceded by the arresting officer that prior to embarking upon the search defendant had given authorities no cause to suspect him of criminal conduct aside from his prolonged stay in the restroom. It was also conceded that even this arguably suspicious behavior was susceptible to an innocent explanation. Since we have held that “events . . . as consistent with innocent activity as with criminal activity” are insufficient to support the legality of an investigative detention. Common] rumor or report, suspicion, or even ‘strong reason to suspect’” have historically been inadequate to establish probable cause, and “that principle has survived to this day” in the law of the Fourth Amendment and the law of this state. Officer Aldahl therefore lacked probable cause to search the toilet stall occupied by defendant. His clandestine observation of defendant, “‘prompted by a general curiosity to ascertain what, if anything’,” was going on within the restroom, was “manifestly exploratory in nature, and violates both the letter and spirit of the Fourth Amendment.” Officer should have been excluded at trial.

You Decide 3.2
United States v. Jaimez, 15 F. Supp. 3d 1338 (N.D. Ga. 2013).
On June 7, 2011, Defendant Jaimez pulled into his driveway at 6174 Kemp Drive in Acworth, GA, followed immediately by Deputy Pope and Cherokee County law enforcement officer Agent Reynolds. Deputy Pope and Agent Reynolds exited their vehicle as Jaimez exited his. Deputy Pope then asked Jaimez if he minded if the officers stepped inside the residence to talk. Jaimez agreed. Unbeknownst to Jaimez, Deputy Pope carried a warrant for Jaimez’s arrest.
Before questioning Jaimez, Deputy Pope asked if the officers could search his home for drugs or weapons, and Jaimez said they could. Deputy Pope then explained to Jaimez that several other officers would enter the home and begin the search. 
Over the course of the next 3–4 hr, at least nine police officers went through Jaimez’s home searching for drugs or weapons. Each officer was dressed in civilian clothes, and each carried a concealed weapon. During the search of Jaimez’s home, Jaimez’s wife continued to cook in the kitchen, and his teenage children continued watching television. None of the officers touched Jaimez or any of his family members, except when they handcuffed Jaimez at the end of his interview. Likewise, none of the officers threatened Jaimez or forced him to make any promises. The atmosphere in Jaimez’s home was generally relaxed, Jaimez was cooperative, and the officers’ conduct was not coercive or threatening.
The law enforcement officers then searched places in the home where drugs or weapons might be found. During the course of the search, the officers seized several cellular phones and a large amount of packaged currency. 
The law enforcement officers also seized six spiral notebooks found in Jaimez’s master bedroom closet. Each notebook bore the normal, nondescript plastic cover of most spiral notebooks, and no writing was visible on the exterior of the notebook. With Jaimez present, Deputy Pope then opened the notebooks and inspected their pages. He noticed certain numbers corresponding to what he believed to be the cost of a kilogram of cocaine in Cherokee County and several names of individuals associated with these values. Based on the written contents of some of the pages and Deputy Pope’s 3 years of experience investigating drug cases, Deputy Pope surmised that the notebooks evidenced drug activity. Deputy Pope had become familiar with “owe-me” lists, handwritten notes, and lists that drug dealers keep. According to Pope, owe-me lists typically memorialize drug transactions by the name of the buyer or seller, the amount of drugs, and the value of the sale. And after physically opening and perusing each notebook, Deputy Pope determined that these notebooks contained such owe-me lists. Deputy Pope then relied, in part, on these owe-me lists to question Jaimez. 
https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=eaac1d21-90fb-4590-abfb-b25caf554e50&ecomp=x_Jg&prid=e63f9d82-49b1-48a5-a108-b7f5d3a5f0bcAs an initial matter, the Court, having conducted a de novo review of the facts and legal principles at play here, adopts the magistrate judge’s findings and conclusions of law regarding the voluntariness and limited scope of Jaimez’s consent to search his home. Accordingly, the Court finds that Jaimez’s consent was voluntary and the product of an “essentially free and unconstrained choice.” As the magistrate judge found, Jaimez consented, however, only to a search of his home for drugs or weapons. Thus, the law enforcement officers were limited to searching only places where drugs or weapons might be found. Here, however, the law enforcement officers seized items other than drugs or weapons. Thus, the question is whether the seizure of these items is consistent with the strictures of the Fourth Amendment’s protection from unlawful seizure. The relevant principle is the plain view doctrine.
https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=eaac1d21-90fb-4590-abfb-b25caf554e50&ecomp=x_Jg&prid=e63f9d82-49b1-48a5-a108-b7f5d3a5f0bc“An officer may seize evidence that is in plain view despite the failure to obtain a search warrant if two elements are satisfied: (1) lawful access to the object seized and (2) the incriminating nature of the object seized is immediately apparent.” “[O]bjects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.”. All of the items seized were located in a place where the officers were lawfully present. In addition, the Court agrees with the magistrate judge that the incriminating nature of the cellular phones was immediately apparent. https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=eaac1d21-90fb-4590-abfb-b25caf554e50&ecomp=x_Jg&prid=e63f9d82-49b1-48a5-a108-b7f5d3a5f0bcIndeed, Deputy Pope testified that he knew the investigation resulting in Jaimez’s indictment included wiretaps, and here, he came across not one but several cellular phones, suggesting in this context that the phones were used for drug sales. Likewise, the magistrate judge correctly determined that the incriminating nature of the packaged cash was immediately apparent. Deputy Pope testified that, based on his experience investigating similar drug crimes, the large amount of packaged currency indicated that the money was intended for cross-border shipment, likely for the purposes of the drug trade. https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=eaac1d21-90fb-4590-abfb-b25caf554e50&ecomp=x_Jg&prid=e63f9d82-49b1-48a5-a108-b7f5d3a5f0bcAnd courts routinely hold that in contexts such as this one, this large amount of packaged cash is inherently incriminating. Thus, the Court adopts the magistrate judge’s findings of fact and conclusions of law regarding Jaimez’s motion to suppress the cellular phones and currency.
The magistrate judge erred, however, when she concluded that the incriminating nature of the spiral notebooks was immediately apparent. The magistrate judge implicitly found that the written contents of these notebooks were in plain view. “During the consent search, the deputy stated that he observed such ‘owe-me’ lists that particularly caught his attention because the amounts on the lists coincided with the price of a kilogram of cocaine.” The facts as illuminated at the April 15, 2013, hearing before the Court, however, show otherwise.
https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=eaac1d21-90fb-4590-abfb-b25caf554e50&ecomp=x_Jg&prid=e63f9d82-49b1-48a5-a108-b7f5d3a5f0bc“The ‘immediately apparent’ requirement is a vital constraint on the plain view doctrine exception to the Fourth Amendment warrant requirement.” This constraint prevents law enforcement officers from engaging in a general “exploratory search,” obviating the Fourth Amendment requirement of a particularized warrant. “The purpose of the immediately apparent requirement is to prevent general, exploratory rummaging in a person’s belongings.” Accordingly, courts should avoid diminishing the strength of this requirement at the risk of “jeopardize[ing] fundamental Fourth Amendment principles.” Id.
https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=eaac1d21-90fb-4590-abfb-b25caf554e50&ecomp=x_Jg&prid=e63f9d82-49b1-48a5-a108-b7f5d3a5f0bc“The incriminating nature of an item is ‘immediately apparent’ if the officers have ‘probable cause’ to believe that the item is either evidence of a crime or contraband.” If, however, the police lack probable cause to believe that an object in plain view is [evidence of a crime or] contraband without conducting some further search of the object--that is, if its incriminating character [is not] immediately apparent--the plain view doctrine cannot justify its seizure. 
Jaimez has moved to suppress the collection of spiral-bound notebooks seized from his home during a search for drugs or weapons. https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=eaac1d21-90fb-4590-abfb-b25caf554e50&ecomp=x_Jg&prid=e63f9d82-49b1-48a5-a108-b7f5d3a5f0bcHowever, the incriminating nature of the notebooks was not apparent until Deputy Pope opened and searched their contents--a search that lacked probable cause. Each of these notebooks bore normal, nondescript covers, and the government put forth no testimony upon which the Court can conclude that the contents of any of the notebooks were visible. Thus, like the notebooks in Silva, the notebooks here “had no markings on the cover[s] and nothing to suggest [their] contents.” At first glance, the notebooks appear to be the type of books used for school, business, or personal writing. One might likely conclude that the notebooks belonged to Jaimez’s school-aged children. https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=eaac1d21-90fb-4590-abfb-b25caf554e50&ecomp=x_Jg&prid=e63f9d82-49b1-48a5-a108-b7f5d3a5f0bcThus, the incriminating nature of these notebooks was not immediately apparent for purposes of the plain view doctrine. Accordingly, by opening and perusing the notebooks, Deputy Pope engaged in an additional search requiring probable cause. 
https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=eaac1d21-90fb-4590-abfb-b25caf554e50&ecomp=x_Jg&prid=e63f9d82-49b1-48a5-a108-b7f5d3a5f0bcIn a case such as this one, “an officer may not inspect a book or document beyond reading what is plainly visible unless he or she has probable cause to proceed with the search, independent of the justification for the initial intrusion.” The evidence before the Court shows that Deputy Pope only had probable cause to believe the notebooks were owe-me lists when he began flipping through their pages. Deputy Pope’s conduct and testimony shows that he in fact did not assess the incriminating nature of the notebooks until he opened them. 
The Court finds that the incriminating nature of the notebooks was not immediately apparent, and Deputy Pope lacked probable cause to search their contents. Accordingly, the Court grants Jaimez’s motion to suppress this documentary evidence. 

You Decide 3.3
State v. Whitaker, 820 F.3d 849 (7th Cir. 2016). 
Acting on information that drugs were being sold from a certain apartment in Madison, WI, law enforcement obtained the permission of the apartment property manager and brought a narcotics-detecting dog to the locked, shared hallway of the apartment building. The dog alerted to the presence of drugs at a nearby apartment door and then went to the targeted apartment where Whitaker was residing. After the officers obtained a search warrant, Whitaker was arrested and charged with drug and firearm crimes based on evidence found in the apartment. At the time of his arrest, Whitaker was serving a term of supervised release, a conviction for being a felon in possession of a firearm. After the district court denied his pretrial motions challenging the search and the dog’s reliability, Whitaker entered a conditional guilty plea that preserved his right to appeal the district court’s ruling.
On appeal, Whitaker . . . argues the use of the dog was a search under the Fourth Amendment and Florida v. Jardines. 
  In October 2013, Dane County Sheriff’s Deputy Joel Wagner met with a confidential informant about drug dealing at 6902 Stockbridge Drive, Apartment 204, in Madison, WI. The informant told Wagner that “Javari” lived in Apartment 204, drove a black Cadillac Escalade, and carried a handgun in his waistband. The informant reported seeing Javari and another individual selling drugs in the apartment.
   On October 14, 2013, Wagner met with the property manager for 6902 Stockbridge Drive and learned that Apartment 204 was leased to Ruthie Whitaker. The property manager took Wagner to the underground parking garage, where Wagner observed a black Cadillac Escalade in the parking stall for Apartment 204. The license plate showed that the Escalade was registered to Ruthie Whitaker.
   Over a month later, on November 25, 2013, the same informant sent Wagner a text message. The text message indicated that one of the individuals dealing drugs contacted the informant and told the informant that the individual was back in town and was at the apartment with a lot of “h.” The informant knew “h” to mean heroin. On December 4, 2013, the property manager signed a consent form, authorizing a K9 search of 6902 Stockbridge Drive. On December 17, 2013, Wagner received an anonymous complaint concerning drug activity at 6902 Stockbridge Drive. The anonymous informant did not specifically mention Apartment 204 but indicated that the person who was selling out of 6902 Stockbridge Drive drove a black Cadillac Escalade.
    On January 7, 2014, Wagner and Deputy Jay O’Neil, with his drug-sniffing K9 partner, “Hunter,” went to 6902 Stockbridge Drive. Hunter first alerted on the Escalade parked in the space for Apartment 204. Upon a later search of the Escalade, no drugs were found. The officers took Hunter to the second floor of the apartment building and into its locked hallway, where there were at least six to eight apartments. According to his police report, O’Neil took Hunter on a quick walk through the hallway in order to get used to any people or animal smells. During the first pass, Hunter showed extreme interest in Apartment 204 but did not alert. Hunter then alerted to the presence of drugs at the door of nearby Apartment 208. Wagner told O’Neil that it was not the targeted apartment. On a secondary sniff, Hunter alerted on Apartment 204.
    After obtaining the search warrant, the officers recovered cocaine, heroin, and marijuana in Apartment 204. Whitaker was the sole occupant at the time the warrant was executed, and, in a postarrest interview, he admitted he lived there. He also told officers about a handgun in his apartment and consented to the officers’ reentry to retrieve it.
   On April 11, 2014, Whitaker filed a motion to suppress the evidence seized during the search. He also requested a . . . hearing and the production of Hunter’s training records. On May 19, 2014, the Magistrate Judge issued a Report and Recommendation, recommending that Whitaker’s motions be denied. On June 16, 2014, the district court adopted the Report and Recommendation. On October 9, 2014, Whitaker was sentenced to consecutive terms of 12 months’ imprisonment on Count 1, possession with intent to distribute heroin and cocaine, and 60 months’ imprisonment on Count 3, use of a firearm in furtherance of a drug-trafficking crime. On November 14, 2014, the district court revoked Whitaker’s supervised release . . . and sentenced him to a term of 18 months’ imprisonment to run consecutively with the sentence given for Count 3 and concurrently with the sentence given for Count 1. 
      Whitaker contends that the district court erred in holding that he had no expectation of privacy in the apartment building’s common hallway and denying his motion to suppress the evidence gathered from his apartment.
   In Florida v. Jardines, the Supreme Court held that the government’s use of a trained police dog to investigate a home and its immediate surroundings was a search under the Fourth Amendment. The Court explained that the defendant had an expectation of privacy in his porch, which is part of the home’s curtilage and “enjoys protection as part of the home itself.” This is because the curtilage “is ‘intimately linked to the home, both physically and psychologically,’ and is where ‘privacy expectations are most heightened’.” The Court was clear that its holding was based on the trespass to the defendant’s curtilage, not a violation of the defendant’s privacy interests. Therefore, when the police physically intruded onto the defendant’s property to gather evidence without a warrant or consent, they had conducted a search without a license to do so, in violation of the Fourth Amendment. 
Whitaker argues that Jardines should be extended to the hallway outside his apartment door because the law enforcement took the dog to his door for the purpose of gathering incriminating forensic evidence. The use of a drug-sniffing dog here clearly invaded reasonable privacy expectations, as explained in Justice Kagan’s concurring opinion in Jardines. The police in Jardines could reasonably and lawfully walk up to the front door of the house in that case to knock on the door and ask to speak to the residents. The police were not entitled, however, to bring a “supersensitive instrument” to detect objects and activities that they could not perceive without its help. The police could not stand on the front porch and look inside with binoculars or put a stethoscope to the door to listen. Similarly, they could not bring the supersensitive dog to detect objects or activities inside the home. As Justice Kagan explained, viewed through a privacy lens, Jardines was controlled by Kyllo, which held that police officers conducted a search by using a thermal-imaging device to detect heat emanating from within the home, even without trespassing on the property. 
Kyllo held that where “the government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” That rule reflects a concern with leaving “the homeowner at the mercy of . . . technology that could discern all human activity in the home.” A dog search conducted from an apartment hallway comes within this rule’s ambit. A trained drug-sniffing dog is a sophisticated sensing device not available to the general public. The dog here detected something (the presence of drugs) that otherwise would have been unknowable without entering the apartment.https://www.casemine.com/judgement/us/59145c37add7b049341e7402 - a942bdcN1 
There is little doubt that a highly trained drug-detecting dog is a “supersensitive instrument” under Kyllo. Kyllo described a category of “sense-enhancing technology” that is “not available to public use.” A trained dog’s nose is a detection device capable of alerting the handler to the presence of odors at almost nonexistent levels. Like any technology, it is a tool that must be deployed in a particular way by a trained handler to be effective. And like other sophisticated detection tools, the results and accuracy of dog searches are subject to detailed research and analysis.

   Indeed, the fact that this was a search of a home distinguishes this case from dog sniffs in public places in Place and in Caballes. Neither case implicated the Fourth Amendment’s core concern of protecting the privacy of the home. It is true that Whitaker did not have a reasonable expectation of complete privacy in his apartment hallway. Whitaker’s lack of a reasonable expectation of complete privacy in the hallway does not also mean that he had no reasonable expectation of privacy against persons in the hallway snooping into his apartment using sensitive devices not available to the general public.
     Whitaker’s lack of a right to exclude did not mean he had no right to expect certain norms of behavior in his apartment hallway. Yes, other residents and their guests (and even their dogs) can pass through the hallway. They are not entitled, though, to set up chairs and have a party in the hallway right outside the door. Similarly, the fact that a police officer might lawfully walk by and hear loud voices from inside an apartment does not mean he could put a stethoscope to the door to listen to all that is happening inside. Applied to this case, this means that because other residents might bring their dogs through the hallway does not mean the police can park a sophisticated drug-sniffing dog outside an apartment door, at least without a warrant. 
   The practical effects of Jardines also weigh in favor of applying its holding to dog sniffs at doors in closed apartment hallways. Distinguishing Jardines based on the differences between the front porch of a stand-alone house and the closed hallways of an apartment building draws arbitrary lines.
   First, there is the middle ground between traditional apartment buildings and single-family houses. How would courts treat a split-level duplex? Perhaps even one that had been converted from a house into apartments? Does the number of units in the building matter, or do all multiunit buildings lack the protection Jardines gives to single-family buildings? And what about garden apartments whose doors, like houses, open directly to the outdoors?
   Second, a strict apartment versus single-family house distinction is troubling because it would apportion Fourth Amendment protections on grounds that correlate with income, race, and ethnicity. For example, according to the Census’s American Housing Survey for 2013, 67.8% of households composed solely of Whites living in one-unit detached houses. For households solely composed of Blacks, that number dropped to 47.2%. And for Hispanic households, that number was 52.1%. The percentage of households that live in single-unit, detached houses consistently rises with income. At the low-end, 40.9% of households that earned less than $10,000 lived in single-unit, detached houses, and, at the high-end, 84% of households that earned more than $120,000 did so. See U.S. Census Bureau, American Housing Survey, Table Creator, http://sasweb.ssd.census.gov/ahs/ahstablecreator.html (allowing the breakdown of housing type by race and income).
The police engaged in a warrantless search within the meaning of the Fourth Amendment when they had a drug-sniffing dog come to the door of the apartment and search for the scent of illegal drugs.
    At the time of this search, there was no recognized expectation of privacy in the common areas of a multiunit apartment building. However, no appellate decision specifically authorizes the use of a supersensitive instrument, a drug-detecting dog, by the police outside an apartment door to investigate the inside of the apartment without a warrant. Moreover, Kyllo was decided before the search of Whitaker’s apartment. The logic of Kyllo should have reasonably indicated by the time of this search that a warrantless dog sniff at an apartment door would ordinarily amount to an unreasonable search in violation of the Fourth Amendment.
   Accordingly, we reverse the denial of Whitaker’s motion to suppress and remand for proceedings consistent with this opinion.

You Decide 3.4
United States v. Scott, 975 F.2d 927 (1st Cir. 1992).
Appellee was suspected by the Internal Revenue Service (IRS) of involvement in a scheme to defraud the United States through the filing of false income tax returns. IRS agents systematically seized and combed through garbage bags left for collection in front of appellee’s house. Their search revealed numerous shredded documents reduced to 5/32 in strips, which when painstakingly pieced together produced incriminating evidence. The agents then used this evidence as the basis for establishing probable cause to request various search warrants. The search warrants were issued and executed, and the searches garnered additional evidence used to secure appellee’s 47 count indictment. Appellee moved to suppress the reconstructed documents as well as the evidence seized pursuant to the search warrants. Appellee argued that by shredding the documents, he had manifested an objectively reasonable expectation of privacy in the shredded remnants which was protected by the Fourth Amendment, a contention that convinced the district court. Both parties to this appeal as well as the district court rely on the same case as authority for their respective positions, California v. Greenwood, supra. This seminal case decided that the Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home, except “if respondents [have] manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable.” We start out with the obvious proposition that what we are dealing with here is trash. More important is the fact that at the time the challenged evidence came into the hands of the authorities, it was public trash. That is, irrespective of whether appellee intended to keep secret the contents of the documents in question by shredding them, there can be no doubt that appellee also intended to dispossess himself of those documents once they were shredded and to place their fractured remnants in a public area accessible to unknown third parties. The shredded documents were deposited in a public place and in the control of third parties, without any limitation as to their use. Trash collectors and others were at liberty to dispose of the trash in any manner they saw fit. They were also free to rummage through the garbage and explore its contents, whatever that might be. Any analysis of the expectation of privacy in the contents of the garbage must take into consideration these realities. Thus, it is appropriate to call the evidence at issue “public” trash because it was trash left for collection in a public place and over which its producer had relinquished possession. Greenwood recognizes that the search of trash left for collection in a public place does not offend societal values. Id. Therefore, appellee should have been forewarned that he did not have a legitimate expectation of privacy once his private garbage went into a public place because the contents of the garbage bags would not be exempt from public scrutiny. As the Court stated in Greenwood:
[H]aving deposited their garbage in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it (citation omitted), respondents could have had no reasonable expectation of privacy in the inculpatory items that they discarded.
In our view, a person who places trash at a curb to be disposed of or destroyed by a third person abandons it because “[i]mplicit in the concept of abandonment is a renunciation of any reasonable expectation of privacy in the property abandoned.” The fact that the abandoned property was partially destroyed by shredding, although constituting evidence of appellee’s subjective desire or hope that the contents be unintelligible to third parties, does not change the fact that it is as a result of appellee’s own actions that the shredded evidence was placed in the public domain. Had the shredded remnants been placed in a pile on the curb in front of the house, or even more doubtfully, had an errant breeze blown shredded documents from appellee’s desk into the street into the open window of a passing police car, the government would certainly have been free to seize the incriminatory evidence without a warrant and to use its contents without limitation against appellee. What we have here is a failed attempt at secrecy by reason of underestimation of police resourcefulness, not invasion of constitutionally protected privacy. There is no constitutional protection from police scrutiny as to information received from a failed attempt at secrecy. Appellee here thought that reducing the documents to 5/32 in. pieces made them undecipherable. It turned out he was wrong. He is in no better position than the citizen who merely tears up a document by hand and discards the pieces into the sidewalk. Can there be any doubt that the police are allowed to pick up the pieces from the sidewalk for use of the contents against that person? Should the mere use of more sophisticated “higher” technology in attempting destruction of the pieces of paper grant higher constitutional protection to this failed attempt at secrecy? We think not. There is no constitutional requirement that police techniques in the detection of crime must remain stagnant while those intent on keeping their nefarious activities secret have the benefit of new knowledge. A person who prepares incriminatory documents in a secret code [or for that matter in some obscure foreign language], and thereafter blithely discards them as trash, relying on the premise or hope that they will not be deciphered [or translated] by the authorities, could well be in for an unpleasant surprise if his code is “broken” by the police [or a translator is found for the abstruse language], but he cannot make a valid claim that his subjective expectation in keeping the contents private by use of the secret code [or language] was reasonable in a constitutional sense. In our view, shredding garbage and placing it in the public domain subjects it to the same risks regarding privacy, as engaging in a private conversation in public where it is subject to the possibility that it may be overheard by other persons. Both are failed attempts at maintaining privacy whose failure can only be attributed to the conscious acceptance by the actor of obvious risk factors. In the case of the conversation, the risk is that conversation in a public area may be overheard by a third person. In the disposal of trash, the risk is that it may be rummaged through and deciphered once it leaves the control of the trasher. In both situations, the expectation of privacy has been practically eliminated by the citizen’s own action. Law enforcement officials are entitled to apply human ingenuity and scientific advances to collect freely available evidence from the public domain. The mere fact that appellant shredded his garbage before he placed it outside of his home does not create a reasonable heightened expectation of privacy under the Fourth Amendment. Appellant still discarded this garbage in an area particularly suited for public inspection and consumption. At most, appellant’s actions made it likely that most third parties would decline to reconstitute the shredded remnants into a legible whole. The Fourth Amendment, however, does not protect appellant when a third party expends the effort and expense to solve the jigsaw puzzle created by shredding. The test for determining legitimacy of an expectation of privacy “is not whether the individual chooses to conceal assertedly private activity, but instead whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.” The ultimate question in this respect is “whether, if the particular form of [conduct] practiced by the police is permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with the aims of a free and open society.” For the reasons stated, and, we believe, following the strictures of Greenwood, such dangers are not found in the present case.

You Decide 3.5
United States v. Swindle, 407 F.3d 562 (2nd Cir. 2005).
The officers in this case, although lacking reasonable suspicion of Swindle’s criminal activity, ordered him to pull his car over. He did not immediately do so, subsequently breaking two traffic laws and throwing a bag of drugs out of his window before being apprehended while fleeing on foot. Swindle argues that the police seized him the moment they ordered him to pull over, and that the drugs therefore should have been suppressed as the fruit of an unconstitutional seizure. The government argues that the officers did not seize Swindle until they physically apprehended him, and that his behavior by then furnished ample grounds for his arrest. Constrained by relevant Supreme Court decisions, we affirm the judgment of the district court. Four Buffalo police officers assigned to an FBI career criminal task force were patrolling the city in an unmarked car on June 11, 2002, in search of Kenneth Foster-Brown, a fugitive wanted for dealing drugs. All four officers had on previous occasions encountered Foster-Brown, a Black man who was 5'8" tall and at the time weighed 145 pounds. Defendant–appellant Swindle, also a Black man, is 6'1" tall and in June 2002 weighed 215 pounds. During their patrol, the officers saw a black Pontiac Bonneville, a model of car that Foster-Brown had previously been seen “near” but had never been known to drive. The officers saw the car come to a halt in front of a known drug house that Foster-Brown had supplied in the past. The officers stopped their car and watched as a Black man got out of the Bonneville, entered the house, left a short time later, and drove away. The officers were unable to tell whether the man was Foster-Brown. In fact, the man in the Bonneville was Swindle. Thinking that he might be Foster-Brown, the officers followed in their car. Within a minute, by activating their police strobe light, they ordered Swindle to pull over. Swindle disobeyed the officers’ order to stop and kept driving. As he did, he violated two traffic laws by crossing a double yellow lane divider and driving the wrong way on a one-way street. Swindle also reached into the visor above the driver’s seat, attempted to throw something out of the window, and ultimately succeeded in throwing a plastic bag out of the car. The bag was found to contain 33 smaller bags of crack cocaine. Swindle eventually pulled over and fled on foot. The police apprehended him in a yard and placed him under arrest. He was charged with unlawful possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Swindle moved to suppress the drugs on the ground that they were the fruit of an illegal seizure. A magistrate judge held a hearing at which one of the arresting officers and Swindle testified. According to the officer, the man who entered the drug house was a “dark-skinned Black male, approximately 6 ft tall, wearing a white muscle shirt, T-shirt.” The officer admitted that he knew Foster-Brown to be a “5'8", 150 pound[] . . . Black male.” The officer also conceded that when Swindle was ordered to pull over, Swindle “had violated no Vehicle and Traffic law at that time.” Moreover, when asked whether he had seen Swindle “do anything illegal in any way, shape, or form that day,” the officer answered: “not prior to activating the courtesy light.” Further, the officer was asked “what was . . . your reason, the sole reason you activated your emergency light at that point?” He answered: “To ascertain if, in fact, Mr. Swindle was, in fact, Kenneth Foster-Brown.” Swindle testified that he was 24 years old, 6'1" tall and weighed 215 pounds on June 11. The government did not rebut or attempt to discredit this testimony. On appeal, Swindle argues that the drugs he threw from his car should have been suppressed as the fruit of an illegal seizure. Swindle claims that he was seized at the “moment the emergency overhead lights went on” in the officers’ vehicle, at which time the police lacked reasonable suspicion to order a stop. The government argues that Swindle was not seized for Fourth Amendment purposes until the officers “physically grabbed him in the yard,” by which time Swindle’s behavior had generated probable cause for an arrest. The district court ruled for the government, finding that Swindle was not “seized” within the meaning of the Fourth Amendment until the officers physically apprehended him. Accordingly, the court ruled that the drugs Swindle discarded prior to his capture were admissible. Swindle asserts--and the government does not dispute--that the officers initiated a Terry stop of Mr. Swindle when, with overhead emergency lights activated, they tried to pull over his vehicle. We agree that any reasonable driver would understand a flashing police light to be an order to pull over, although the Supreme Court has said that such an order would not give rise to a “stop” unless the driver submitted to the order or was physically apprehended. The “[t]emporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of [the Fourth Amendment].” An “automobile stop is thus subject to the constitutional imperative that it not be ‘unreasonable’ under the circumstances.” In other words, “the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” The magistrate judge--whose recommendations the district court adopted in their entirety--concluded that Swindle’s presence at a known [drug] house for a short period of time, failure to pull over upon activation of police emergency lights, act of reaching into the fabric material between the roof of the driver’s compartment of the car over the windshield and thereafter attempting to discard an object from the vehicle, and then actually discarding a knotted off clear sandwich bag, provided the officers with reasonable suspicion to stop the defendant. . . . With the exception of Swindle’s entering the drug house, all of the events on which the magistrate judge relied in finding reasonable suspicion occurred after the officers initiated the Terry stop by ordering Swindle to pull over. The order to pull over was indeed unreasonable. Although we cannot say that the Fourth Amendment requires a police officer to have reasonable suspicion that criminal activity is afoot before ordering a person to stop, we believe that the order in Swindle’s case was a clear abuse of police authority. At the moment they ordered Swindle to stop, the officers had merely observed an unidentified Black man drive up to the drug house in a Bonneville (a model the police associated with Foster-Brown), enter the house, leave a short while later, and then drive away. This is not enough information on which to reasonably order a person to stop. First, the fact that Swindle drove a Pontiac Bonneville, a model of car that Foster-Brown had previously been seen “near,” is insignificant given that the government failed to show that Foster-Brown drove a Bonneville or even that the one Swindle drove was the one Foster-Brown had been seen near. Second, Swindle’s entering a known drug house does not itself suggest that a crime was afoot. As the Supreme Court has noted, an “individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” Ultimately, the officers ordered Swindle to stop because they believed him to be “a Black male meeting the description of Foster-Brown” and wished to “confirm or dispel their suspicions that the Bonneville’s driver was Foster-Brown.” The officers certainly may have suspected Swindle of being Foster-Brown, but the relevant question is whether that suspicion was reasonable. Under the government’s argument, Swindle maintains, the “officers could have stopped any African American or dark-skinned person exiting the house . . . whether he was 6' tall and over 200 lbs or 5' tall and merely 100 pounds. . . . The only thing Mr. Swindle had in common with Foster-Brown is that they were both dark skinned.” Indeed, we are puzzled by the government’s assertion that Swindle was a man “meeting the description of Foster-Brown.” On the day in question, as already indicated, Swindle was 5 in. taller--and 70 pounds heavier--than Foster-Brown.                                                 
It appears that the only obvious physical characteristic the men shared was the color of their skin. But courts agree that race, when considered by itself and sometimes even in tandem with other factors, does not generate reasonable suspicion for a stop.                             
Having considered the “‘totality of the circumstances’ . . . to see whether the detaining officer ha[d] a ‘particularized and objective basis’ for suspecting legal wrongdoing,” we have no difficulty concluding that the officers acted unreasonably in ordering Swindle to pull over. Swindle was simply a Black man in a high-crime area driving a car that the wanted fugitive had previously been seen “near.” As the officers conceded, Swindle had not been observed to break any law or do anything else to warrant a stop. Although we are precluded from holding that the officers’ unreasonable order violated the Fourth Amendment, we believe that it was an abuse of authority for which Swindle and others like him might seek redress under a source of authority such as the Fourteenth Amendment or some provision of state law.                                                                              
Swindle does not dispute the government’s claim that the officers had probable cause to arrest him by the time he was physically apprehended. Instead, Swindle argues that he was seized when the officers activated their police light because no reasonable driver would have felt free to ignore that order to stop. . . . [W]e must conclude that Swindle was not seized until the police physically apprehended him and therefore that the drugs did not have to be suppressed as the fruit of a poisonous tree. Regardless of how unreasonable it was for the officers to order him to pull over, and regardless of how reasonable it was for Swindle to have felt restrained in the face of the flashing police strobe light, there was no immediate “physical force” applied or “submission to the assertion of authority.” A seizure thus requires “either physical force . . . or, where that is absent, submission to the assertion of authority.” Therefore, no seizure immediately occurred. The drugs that Swindle abandoned before being apprehended were thus not the product of a Fourth Amendment seizure. A substantial argument could be made that a broader definition of “seizure”--or some other remedy--is required to adequately protect Fourth Amendment values from the harms flowing from police initiation of Terry stops without reasonable suspicion. Even if the kind of order given in Swindle’s case is rare--and we do not suggest that it is--we see no persuasive reason for the law to tolerate it. In view of what we believe to be the controlling cases, however, we must affirm a conviction that was achieved with evidence obtained by an abuse of police power. A remedy for Swindle’s Fourth Amendment complaint can come only from higher authority. As we are compelled to hold that Swindle was seized only when the police physically apprehended him--at which time the officers had probable cause for an arrest--we must conclude that the drugs Swindle discarded prior to his apprehension were not the fruit of a Fourth Amendment seizure. We therefore affirm Swindle’s conviction.

Chapter 4: Stop and Frisk
You Decide 4.1
United States v. Hall, No. CR15-0062 (N.D. Iowa, 2015).
      On July 14, 2015, Defendant Mitchell Demarcus Hall was charged by Indictment with possession of a firearm and ammunition by a felon and as an unlawful user of marijuana. Defendant appeared on July 16 and entered a plea of not guilty. On July 31, defendant  timely filed the instant motion to suppress. The government filed its resistance on August 7. Following the suppression hearing on August 12, defendant gave notice of his intent to enter a conditional plea of guilty. A plea change hearing was held on August 27, and the trial was canceled.

    At approximately 2:30 p.m. on May 23, 2015, a call was received on the 911 emergency line regarding a man with a gun. The caller reported a “young man walking on 16th and 4th with a gun.” The caller reported she wanted to remain anonymous. According to the caller, the subject was getting into a black Ford station wagon and was “running in and out of a house.” The subject was described as “light-skinned with dreads.” When asked what the subject was wearing, the caller responded: “I don’t know, but I know he usually like he had a gun in his pocket.” When the dispatcher asked the caller which way the subject was walking, the caller became annoyed and said she “must have made a mistake” by calling. She added that “somebody will be dead.” The caller became agitated and stated again that she wanted to be anonymous. When the dispatcher asked do you still see him, the caller hung up. The call lasted for 1 min 30 s.
    Officer Antoine Smith of the Cedar Rapids Police Department testified that he was approximately two blocks away from the scene when a call came through from the dispatcher, reporting a light-skinned Black male with dreads driving a black station wagon, and who was in possession of a gun. According to Smith, he saw three black station wagons as he proceeded to the scene. The first station wagon was parked and unoccupied. The second station wagon was going north on 15th Street with multiple occupants, none of whom matched the description given in the 911 call. When Smith stopped at a four-way stop at the corner of 15th Street and Bever Avenue, however, he saw a black station wagon being driven by a subject matching the description given in the 911 call. Smith turned to follow the subject and then initiated a traffic stop. 
After the vehicle was stopped, Officer Smith identified defendant as the driver and sole occupant of the vehicle. According to Smith, defendant could not provide a current driver’s license and instead produced either an Iowa or Illinois identification card. In addition, defendant could not produce proof of insurance or name his insurance company. Defendant was then informed he would be given a citation and his car would be impounded. Other officers arriving on the scene reported a smell of marijuana coming from the car. Upon a search of the car, officers found 11 bags of marijuana, a loaded .32 caliber Smith and Wesson handgun, and a replica handgun. Defendant denied that the marijuana and guns belonged to him, but conceded that he smoked marijuana and his fingerprints could be found on the marijuana container.

     In his motion to suppress, defendant argues the vehicle stop was violative of the Fourth Amendment. That is, defendant asserts the anonymous 911 call did not provide the requisite probable cause or reasonable suspicion necessary to justify the stop. The government argues the vehicle stop was justified by the information received in the 911 call. 
    https://advance.lexis.com/search?crid=01bd5148-d3b4-4136-b480-f6e7856ac3b5&pdsearchterms=united+states+v.+Hal+2015+U.s.Dist.+LEXIS+128631&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A6%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A11&pdsearchtype=dynand&pdmfid=1000516&pdisurlapi=trueThe law regarding traffic stops is well-established. The Fourth Amendment prohibits “unreasonable searches and seizures.” “A traffic stop constitutes a seizure of a vehicle’s occupants, including any passengers.” Accordingly, a traffic stop “must be supported by reasonable suspicion or probable cause.” “The Fourth Amendment is satisfied if the stop is supported by reasonable suspicion to believe that criminal activity ‘may be afoot’.” “The ‘reasonable suspicion’ necessary to justify such a stop ‘is dependent upon both the content of information possessed by police and its degree of reliability’.” https://advance.lexis.com/search?crid=01bd5148-d3b4-4136-b480-f6e7856ac3b5&pdsearchterms=united+states+v.+Hal+2015+U.s.Dist.+LEXIS+128631&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A6%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A11&pdsearchtype=dynand&pdmfid=1000516&pdisurlapi=trueThe level of suspicion necessary to conduct a traffic stop is “‘considerably less than proof of wrongdoing by a preponderance of the evidence’ and ‘obviously less’ than is necessary for probable cause.”
     https://advance.lexis.com/search?crid=01bd5148-d3b4-4136-b480-f6e7856ac3b5&pdsearchterms=united+states+v.+Hal+2015+U.s.Dist.+LEXIS+128631&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A6%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A11&pdsearchtype=dynand&pdmfid=1000516&pdisurlapi=trueThe Supreme Court recently addressed the issue of whether an anonymous 911 call provided reasonable suspicion to justify a traffic stop in Navarette, supra. In a 5-4 opinion, the Court concluded that the indicia of reliability in that 911 call was “sufficient to provide the officer with reasonable suspicion that the driver of the reported vehicle had run another vehicle off the road.” In reaching that conclusion, the Court discussed at length two previous cases in which it addressed reasonable suspicion based on anonymous calls: A resolution of the motion in this case requires close examination of Navarette, White, and J.L.
    https://advance.lexis.com/search?crid=01bd5148-d3b4-4136-b480-f6e7856ac3b5&pdsearchterms=united+states+v.+Hal+2015+U.s.Dist.+LEXIS+128631&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A6%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A11&pdsearchtype=dynand&pdmfid=1000516&pdisurlapi=trueIn Alabama v. White, authorities received a telephone call from an anonymous person “stating that Vanessa White would be leaving 235-C Lynwood Terrace Apartments at a particular time in a brown Plymouth station wagon with the right taillight lens broken, that she would be going to Dobey’s Motel, and that she would be in possession of about an ounce of cocaine inside a brown attache case.” Officers proceeded to Lynwood Terrace Apartments, where they observed a station wagon meeting the description given by the caller in the parking lot in front of the 235 building. Officers observed a woman leave the 235 building (with nothing in her hands) and enter the station wagon. The officers then followed the vehicle as it drove directly toward Dobey’s Motel. The vehicle was stopped just short of Dobey’s Motel. Id. During a consent search of the vehicle, officers found a locked brown attache case containing marijuana. A small amount of cocaine was found in White’s purse.
   https://advance.lexis.com/search?crid=01bd5148-d3b4-4136-b480-f6e7856ac3b5&pdsearchterms=united+states+v.+Hal+2015+U.s.Dist.+LEXIS+128631&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A6%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A11&pdsearchtype=dynand&pdmfid=1000516&pdisurlapi=trueIn a 6-3 opinion, the Court concluded that the anonymous tip “exhibited sufficient indicia of reliability to justify the investigatory stop.” The Court noted that “if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.” The Court found it important   that the details provided by the caller were not limited to “facts and conditions existing at the time of the tip” but also predicted the subject’s “future actions.”
   https://advance.lexis.com/search?crid=01bd5148-d3b4-4136-b480-f6e7856ac3b5&pdsearchterms=united+states+v.+Hal+2015+U.s.Dist.+LEXIS+128631&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A6%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A11&pdsearchtype=dynand&pdmfid=1000516&pdisurlapi=trueThe fact that the officers found a car precisely matching the caller’s description in front of the 235 building is an example of the former. Anyone could have “predicted” that fact because it was a condition presumably existing at the time of the call. What was important was the caller’s ability to predict respondent’s future behavior because it demonstrated inside information--a special familiarity with respondent’s affairs.
    https://advance.lexis.com/search?crid=01bd5148-d3b4-4136-b480-f6e7856ac3b5&pdsearchterms=united+states+v.+Hal+2015+U.s.Dist.+LEXIS+128631&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A6%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A11&pdsearchtype=dynand&pdmfid=1000516&pdisurlapi=true; https://advance.lexis.com/search?crid=01bd5148-d3b4-4136-b480-f6e7856ac3b5&pdsearchterms=united+states+v.+Hal+2015+U.s.Dist.+LEXIS+128631&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A6%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A11&pdsearchtype=dynand&pdmfid=1000516&pdisurlapi=trueIn Florida v. J.L., authorities received an anonymous call that “a young Black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun.” Two officers responded to the scene some time later and saw three Black males “just hanging out there.” Id. One of the men (J.L.) was wearing a plaid shirt. “The officers did not see a firearm, and J.L. made no threatening or otherwise unusual movements.” One of the officers approached J.L., told him to put his hands up, frisked him, and seized  a gun from J.L.’s pocket.
https://advance.lexis.com/search?crid=01bd5148-d3b4-4136-b480-f6e7856ac3b5&pdsearchterms=united+states+v.+Hal+2015+U.s.Dist.+LEXIS+128631&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A6%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A11&pdsearchtype=dynand&pdmfid=1000516&pdisurlapi=trueIn a unanimous decision, the Court concluded that an anonymous tip lacking indicia of reliability “does not justify a stop and frisk whenever and, however, it alleges the illegal possession of a firearm.” The Court recognized that “there are situations in which an anonymous tip, suitably corroborated, exhibits ‘sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop’.” The Court concluded, however, that the tip in J.L. lacked the “moderate” indicia of reliability found in White--i.e., the caller’s accurate prediction of the subject’s future movements--which were “essential” to the Court’s decision in White. 
   The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant’s knowledge or credibility. https://advance.lexis.com/search?crid=01bd5148-d3b4-4136-b480-f6e7856ac3b5&pdsearchterms=united+states+v.+Hal+2015+U.s.Dist.+LEXIS+128631&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A6%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A11&pdsearchtype=dynand&pdmfid=1000516&pdisurlapi=trueThat the allegation about the gun turned out to be correct does not suggest that the officers, prior to the frisks, had a reasonable basis for suspecting J.L. of engaging in unlawful conduct: The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search. All the police had to go on  in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L. If White was a close case on the reliability of anonymous tips, this one surely falls on the other side of the line. https://advance.lexis.com/search?crid=01bd5148-d3b4-4136-b480-f6e7856ac3b5&pdsearchterms=united+states+v.+Hal+2015+U.s.Dist.+LEXIS+128631&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A6%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A11&pdsearchtype=dynand&pdmfid=1000516&pdisurlapi=trueIt should be noted that the Court also rejected Florida’s argument that there should be a “firearm exception” to standard Terry analysis.
    https://advance.lexis.com/search?crid=01bd5148-d3b4-4136-b480-f6e7856ac3b5&pdsearchterms=united+states+v.+Hal+2015+U.s.Dist.+LEXIS+128631&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A6%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A11&pdsearchtype=dynand&pdmfid=1000516&pdisurlapi=trueIn Navarette v. California, an anonymous 911 caller reported a vehicle “as having run  her off the road.” The caller identified the make, model, and color of the offending vehicle, together with its license plate. The caller also identified the pickup truck’s location and direction of travel. A highway patrolman spotted the truck a short time later and pulled it over. According to the dissent, the officers followed the truck for 5 min before pulling it over, and during that time, the defendant’s “driving was irreproachable.”
   https://advance.lexis.com/search?crid=01bd5148-d3b4-4136-b480-f6e7856ac3b5&pdsearchterms=united+states+v.+Hal+2015+U.s.Dist.+LEXIS+128631&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A6%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A11&pdsearchtype=dynand&pdmfid=1000516&pdisurlapi=trueThe Navarette court acknowledged that “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.” An anonymous tipster’s veracity is “by hypothesis largely unknown and unknowable.” “But under appropriate circumstances, an anonymous tip can demonstrate sufficient indicia of reliability to provide reasonable suspicion to make an investigatory stop.”
   https://advance.lexis.com/search?crid=01bd5148-d3b4-4136-b480-f6e7856ac3b5&pdsearchterms=united+states+v.+Hal+2015+U.s.Dist.+LEXIS+128631&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A6%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A11&pdsearchtype=dynand&pdmfid=1000516&pdisurlapi=trueIn concluding the information provided in the Navarette 911 call established reasonable suspicion to believe the subject was driving drunk, the majority   focused on three things: (1) “the caller necessarily claimed eyewitness knowledge of the alleged dangerous driving,” (2) the timeline of events suggested the caller was making a “contemporaneous report” of her observations, and (3) an “indicator of veracity is the caller’s use of the 911 emergency system.” The Court found that eyewitness knowledge “lends significant support to the tip’s reliability.” In addition, contemporaneous reports “are especially trustworthy because ‘substantial contemporaneity of event and statement negates the likelihood of deliberate or conscious misrepresentation’.” Finally, because a 911 call can be traced and the identity of the caller determined, “a reasonable officer could conclude that a false tipster would think twice before using such a system.” https://advance.lexis.com/search?crid=01bd5148-d3b4-4136-b480-f6e7856ac3b5&pdsearchterms=united+states+v.+Hal+2015+U.s.Dist.+LEXIS+128631&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A6%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A11&pdsearchtype=dynand&pdmfid=1000516&pdisurlapi=trueIn a vigorous dissent, Justice Scalia--who was in the majority in White--rejected the majority’s arguments, fearing that “[a]ll the malevolent 911 caller need to do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police.”
   https://advance.lexis.com/search?crid=01bd5148-d3b4-4136-b480-f6e7856ac3b5&pdsearchterms=united+states+v.+Hal+2015+U.s.Dist.+LEXIS+128631&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A6%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A11&pdsearchtype=dynand&pdmfid=1000516&pdisurlapi=trueAlso instructive is the Eighth Circuit’s  decision in United States v. Wheat. There, a 911 caller reported a tan and cream-colored Nissan Stanza or “something like that,” whose license plate began with the letters WOC, being driven erratically. The caller provided the location of the vehicle and its direction of travel. https://advance.lexis.com/search?crid=01bd5148-d3b4-4136-b480-f6e7856ac3b5&pdsearchterms=united+states+v.+Hal+2015+U.s.Dist.+LEXIS+128631&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A6%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A11&pdsearchtype=dynand&pdmfid=1000516&pdisurlapi=trueA short time later, an officer observed a tan Nissan Maxima, whose license plate began with the letters WOC, stopped at an intersection. The Nissan made a right turn, and the officer stopped it immediately, without having observed any incidents of erratic driving. https://advance.lexis.com/search?crid=01bd5148-d3b4-4136-b480-f6e7856ac3b5&pdsearchterms=united+states+v.+Hal+2015+U.s.Dist.+LEXIS+128631&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A6%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A11&pdsearchtype=dynand&pdmfid=1000516&pdisurlapi=trueWheat argued that the anonymous 911 call could not give rise to reasonable suspicion sufficient to justify an investigatory stop. After a lengthy discussion of White, J.L., and other state and federal decisions addressing this issue, the Court concluded that the 911 call provided the officer with reasonable suspicion to conduct a valid traffic stop.
    https://advance.lexis.com/search?crid=01bd5148-d3b4-4136-b480-f6e7856ac3b5&pdsearchterms=united+states+v.+Hal+2015+U.s.Dist.+LEXIS+128631&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A6%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A11&pdsearchtype=dynand&pdmfid=1000516&pdisurlapi=trueAs the Supreme Court has recognized more than once, determining whether an anonymous 911 call provides reasonable suspicion to conduct an investigatory stop is often a “close case.” Each case is fact intensive, and the Court must consider “the totality of the circumstances--the whole picture” in determining   whether reasonable suspicion exists.
    https://advance.lexis.com/search?crid=01bd5148-d3b4-4136-b480-f6e7856ac3b5&pdsearchterms=united+states+v.+Hal+2015+U.s.Dist.+LEXIS+128631&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A6%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A11&pdsearchtype=dynand&pdmfid=1000516&pdisurlapi=trueFirst, I note that this case does not involve the kind of predictive behavior which, according to the Court in J.L., was “essential” to the Court’s decision in White. In White, the caller stated that a woman would be leaving a particular apartment at a particular time and drive a particular vehicle to a particular location. https://advance.lexis.com/search?crid=01bd5148-d3b4-4136-b480-f6e7856ac3b5&pdsearchterms=united+states+v.+Hal+2015+U.s.Dist.+LEXIS+128631&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A6%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A11&pdsearchtype=dynand&pdmfid=1000516&pdisurlapi=trueThe White Court concluded the caller’s ability to predict the subject’s future behavior was important, “because it demonstrated inside information--a special familiarity with respondent’s affairs.” This makes the tipster more reliable. Here, however, the 911 caller did not provide information which was predictive of the subject’s future behavior, or otherwise demonstrate any “inside information” or “special familiarity” with the subject’s affairs.
   https://advance.lexis.com/search?crid=01bd5148-d3b4-4136-b480-f6e7856ac3b5&pdsearchterms=united+states+v.+Hal+2015+U.s.Dist.+LEXIS+128631&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A6%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A11&pdsearchtype=dynand&pdmfid=1000516&pdisurlapi=trueSecond, unlike the circumstances in Navarette and Wheat, the caller in the instant case did not provide information regarding the basis for her claim that the subject was engaged in unlawful activity. In those cases, the caller claimed eyewitness knowledge of the subject’s erratic driving, giving rise to a reasonable suspicion of drunk driving. In its brief, the government asserts  that the caller in this case “saw the man with the gun and was describing this to the 911 operator nearly contemporaneously with the event.” I have listened to the 911 call repeatedly, however, and the caller does not say she saw the gun or state how she knew the subject had a gun. That is, there is no indication she was an “eyewitness” to the gun. Rather, the caller states in conclusory fashion that there was “a man walking with a gun.” Similarly, in J.L.--where the Court found reasonable suspicion had not been established--the caller “neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L.”
    https://advance.lexis.com/search?crid=01bd5148-d3b4-4136-b480-f6e7856ac3b5&pdsearchterms=united+states+v.+Hal+2015+U.s.Dist.+LEXIS+128631&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A6%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A11&pdsearchtype=dynand&pdmfid=1000516&pdisurlapi=trueThird, in Navarette and Wheat, the 911 callers were contemporaneously describing their observations of erratic driving, which was readily observable to the public, thus “lend[ing] significant support to the tip’s reliability.” In Navarette, the Court focused on the caller making a “contemporaneous report” of her “eyewitness knowledge.” The Navarette Court contrasted the facts in J.L., “where the tip provided no basis for concluding that the tipster had actually seen the gun.”  Similarly, the 911 caller in the instant action does not claim she saw a gun or provide the basis for her claim that the subject was armed.
https://advance.lexis.com/search?crid=01bd5148-d3b4-4136-b480-f6e7856ac3b5&pdsearchterms=united+states+v.+Hal+2015+U.s.Dist.+LEXIS+128631&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A6%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A11&pdsearchtype=dynand&pdmfid=1000516&pdisurlapi=trueThe anonymous 911 caller in this case did not claim a contemporaneous eyewitness observation of the alleged illegal activity. Instead, the caller claimed “I know he usually like he had a gun in his pocket,” without providing the basis for that knowledge. I believe the facts in this case are more akin to those in J.L., where an anonymous caller stated that “a young Black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun.” Substitute “black station wagon and dreads” for “bus stop and plaid shirt,” and the information provided by the caller in this case was almost identical to that provided by the caller in J.L. In unanimously concluding that there was no reasonable suspicion to stop and frisk J.L., the Court noted that “[a]ll the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L.” Here, the anonymous caller reported that a light-skinned Black male  with dreads driving a black station wagon was in possession of a gun. She did not explain how she knew about the gun and did not supply any basis for believing she had inside information. In both cases, authorities had no information regarding the caller, and no information was provided regarding the basis of the tipster’s knowledge.
I believe this is a close case. After reviewing all of the facts and circumstances, however, I conclude that the quality and quantity of information provided by the 911 caller in this case did not rise to the level required by the Fourth Amendment to conduct an investigatory stop. Nothing in the Navarette case suggests that the Court is turning away from its unanimous decision in J.L., entered just 15 years ago. Because I believe the facts in this case are virtually indistinguishable from those in J.L., I believe the motion to suppress should be granted.

You Decide 4.2
Nebraska v. Rodriguez, 852 N.W.2d 705 (Neb. 2014).
Lucio A. Rodriguez III appealed his conviction in the district court for Scotts Bluff County for driving under the influence (DUI) with a concentration of more than 0.15–1 g of alcohol per 210 liters of breath, third offense, to the Nebraska Court of Appeals. He claimed that the district court erred when it (1) overruled his motion to suppress evidence obtained from a traffic stop that he asserted was based on an anonymous tip without corroboration and (2) overruled his motion for a mistrial based on the State’s failure to dismiss another pending charge which the State knew prior to trial it could not prove. The Court of Appeals affirmed Rodriguez’s conviction and sentence. We granted his petition for further review. We reverse the decision of the Court of Appeals and remand the cause to the Court of Appeals with directions to reverse Rodriguez’s DUI conviction and remand the cause to the district court for a new trial.
II. Statement of Facts
In its memorandum opinion, the Court of Appeals described the facts of this case for which we find support in the record as follows:
On April 28, 2012, the Scotts Bluff County 911 emergency dispatch center received notification of a possible disturbance near a rental car business. When the dispatch center communicated this information to Officer Aaron Kleensang, the dispatcher noted that the caller stated that he had been pushed out of a moving vehicle. The dispatcher also stated that the caller identified the vehicle as a green GMC Envoy and stated that this vehicle left the area heading westbound on Highway 26.
At the time Kleensang received the dispatch, he was near the vicinity of the reported activity. [He did not see the caller at the rental car business, however, he soon] observed a vehicle matching the description he received from the dispatch center traveling westbound on Highway 26. Kleensang made two turns, followed the vehicle onto 17th Avenue and 20th Street, and observed it stop on its own. The vehicle moved to the side of the road and parked before Kleensang activated his patrol car’s emergency lights. Kleensang testified that he activated the lights to signal the driver that Kleensang wanted to talk with him.
Kleensang approached the driver and began to question him about the reported disturbance. Rodriguez was identified as the driver. Kleensang had other officers in the area make contact with the caller, and the caller was eventually brought to a nearby location. No other evidence was adduced about the caller, and there was apparently no further action taken in regard to the disturbance. While discussing the reported disturbance with Rodriguez, Kleensang made several initial observations. He detected a strong odor of alcohol and noticed that Rodriguez had a flushed face, slurred speech, and bloodshot, watery eyes. After administering three field sobriety tests, Kleensang believed Rodriguez was heavily intoxicated. Kleensang arrested Rodriguez following a preliminary breath test and transported him to the detention center in Scotts[b]luff, Nebraska. Rodriguez then submitted to a “DataMaster” test at the detention center, and his breath tested at 0.226 g of alcohol per 210 liters of breath.
During the booking process, Rodriguez’s wallet was taken from him and inventoried. Kleensang testified this is the standard procedure whenever he takes someone to jail. When the wallet was opened, two clear plastic baggies containing apparent controlled substances were discovered at the bottom. Preliminary tests were conducted on these substances at the jail. Subsequent tests at the Nebraska State Patrol crime laboratory revealed that one substance was cocaine and that the other substance was not a controlled substance.
On May 10, 2012, the State filed an information charging Rodriguez with DUI with a blood alcohol level greater than .15, third offense; possession of methamphetamine; and possession of cocaine. Rodriguez moved to suppress any evidence gathered from the stop and subsequent search, contending that the stop was not based on reasonable and articulable suspicion that a crime had been committed or was about to be committed.
The district court overruled the motion to suppress. In its order, the court noted that the stop was justified under two separate analyses. First, the court concluded that the stop could be considered to be a “‘first-tier’ contact” for which no Fourth Amendment protections apply. The court found Kleensang had not used emergency lights or a siren to cause Rodriguez to stop. Thus, the court determined that a reasonable person would not have believed he was required to stop or that his movement was impeded in any way before Kleensang activated his patrol car’s emergency lights. Second, analyzing the stop as a “tier-two” encounter, the court determined reasonable suspicion existed for the stop because Kleensang had corroborated the information from the dispatch center.
On December 18, 2012, the case proceeded to a jury trial. Despite having received laboratory reports demonstrating that Rodriguez did not possess methamphetamine on the night he was arrested, the State did not dismiss the charge in advance of trial. Rodriguez’s motions for mistrial based on this failure to dismiss were denied, but the court entered a directed verdict in his favor on the possession of methamphetamine charge at the close of the State’s evidence. https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueThe jury convicted Rodriguez of DUI but acquitted him of the possession of cocaine charge. The court sentenced Rodriguez to 60 days in jail and a term of probation, suspended his license for 5 years, and ordered him to pay court costs.
Rodriguez appealed his DUI conviction to the Court of Appeals. He claimed that the district court erred when it (1) analyzed the traffic stop as a first-tier police contact; (2) overruled his motion to suppress, despite a lack of corroboration of the anonymous tip; and (3) overruled his motion for a mistrial based on the State’s failure to dismiss the methamphetamine charge.
The Court of Appeals affirmed Rodriguez’s conviction and sentence. With regard to the assignment of error related to a first-tier police contact, the Court of Appeals noted that the State did little to challenge Rodriguez’s argument that he was seized when Kleensang activated his patrol car’s lights and that the contact was therefore a second-tier traffic stop requiring reasonable suspicion. The Court of Appeals determined that the State had conceded that the contact was a traffic stop and concluded that because the district court had alternatively concluded that there was reasonable suspicion to support a traffic stop, it was unnecessary for the Court of Appeals to address the first assignment of error related to a first-tier stop.
With regard to whether there was reasonable suspicion for a traffic stop, the Court of Appeals cited Nebraska precedent and concluded that the content of the dispatch and Kleensang’s observations consistent with the dispatch gave Kleensang a reasonable suspicion to justify the traffic stop.
https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueWith regard to Rodriguez’s motion for a mistrial, the Court of Appeals disapproved of the county attorney’s failure to dismiss the methamphetamine charge prior to trial and stated that such conduct was “improper in the course of conducting a fair trial because it may tend to expose a jury to irrelevant and [883] prejudicial matters.” Although it disapproved of the prosecution’s conduct, the Court of Appeals determined that such conduct did not reach a level requiring the declaration of a mistrial. The Court of Appeals concluded that the district court did not abuse its discretion when it overruled Rodriguez's motion for a mistrial. The Court of Appeals affirmed. 
We granted Rodriguez' petition for further review.
Rodriguez first claims that the Court of Appeals erred when it determined that the traffic stop was justified and that the motion to suppress was properly overruled. We conclude on the record of admitted evidence before us that the anonymous tip in this case did not justify the stop. Therefore, the district court erred when it overruled Rodriguez' motion to suppress and the Court of Appeals erred when it affirmed this ruling.
https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueBecause the stop was based on information supplied by a caller, the reliability of such information is key to determining whether there was reasonable suspicion. As discussed below, Fourth Amendment case law indicates that an important factor in assessing the reliability of such information is the distinction between whether the person supplying the information is known to law enforcement or the information comes from an anonymous source.
Both the district court and the Court of Appeals treated the call in this case as an anonymous tip. Upon our review of the record, we note that there was no evidence received in the district court that indicates the name of the caller was known to law enforcement at the time Kleensang initiated the traffic stop. The State acknowledges in its appellate briefs that no evidence was received by the district court establishing the identity of the caller prior to the stop, and the State suggests that the call be treated as an anonymous tip for purposes of Fourth Amendment analysis. We agree.
https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueAlthough the district court and the Court of Appeals both treated the caller as anonymous, neither court relied on certain relevant precedent from the U.S. Supreme Court regarding anonymous tips in the context of Fourth Amendment analysis. In Bowley, we noted that the factual basis for a traffic stop need not arise from the officer’s personal observation, but may be supplied by information acquired from another person. https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueWe further noted that when the factual basis is supplied by another, the information must contain sufficient indicia of reliability, and we stated that a citizen informant who has personally observed the commission of a crime is presumptively reliable. We concluded that the investigatory stop in Bowley was reasonable, and in making this determination, we noted that “[w]hile the informants were unidentified until after [the defendant] was stopped, they did remain and identify themselves to police.”
https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueBased on its reading of Bowley, the Court of Appeals rejected Rodriguez' argument to the effect that, in the absence of identification of the caller, there was not sufficient indicia of the caller’s reliability to support the stop. The Court of Appeals recited that the caller reported having been pushed from a moving vehicle, and it therefore reasoned that the caller should be treated as a citizen informant whose personal observation of the commission of a crime was presumptively reliable under Bowley. The Court of Appeals appeared to determine that the caller’s reliability was enhanced through corroboration when “Kleensang personally observed a vehicle which matched the description in the dispatch and was heading in the direction indicated by the caller to dispatch.”
Since our decision in Bowley in 1989, the U.S. Supreme Court has decided key Fourth Amendment cases involving anonymous tips, but we have not had occasion to discuss these cases. We therefore review the development of relevant Fourth Amendment law regarding anonymous tips since we decided Bowley before applying such law to this case.
https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueAlthough the caller in the instant case did not supply predictive behavior of the defendant, the district court cited the case of Alabama v. White, as support of its conclusion that “the anonymous tip was sufficiently corroborated to furnish reasonable suspicion.” In White, the U.S. Supreme Court determined that an anonymous tip from a telephone caller provided justification for a traffic stop when certain details provided by the caller were corroborated by police observation. The caller stated that the defendant would leave a particular location at a particular time in a particular vehicle, that she would go to another particular location, and that she would be in possession of cocaine. Officers’ personal observations corroborated that the defendant left the general location during the general time frame indicated by the caller, that she got into the particular vehicle identified by the caller, and that she proceeded on the most direct route toward the location indicated by the caller. The officers stopped the defendant’s vehicle prior to reaching that location.
https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueIn considering whether the stop in White was justified, the U.S. Supreme Court noted that the caller’s ability to predict the defendant’s future behavior demonstrated inside information and a special familiarity with her affairs which, the Court determined, gave the police reason to believe that the caller was also likely to have access to information about her illegal activity. The Court described the decision in White as “a close case” but concluded that “under the totality of the circumstances the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify the investigatory stop.”
https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueNeither the district court nor the Court of Appeals in this case cited Florida v. J.L., in which the Court held that an anonymous tip lacked sufficient indicia of reliability to establish reasonable suspicion for an investigatory stop. The anonymous caller in J.L. reported that “a young Black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun.” Officers were instructed to respond to the tip, and when they arrived at the indicated location, they saw three Black males, one of whom was wearing a plaid shirt. They made no other observation that would indicate illegal activity; nevertheless, one of the officers approached the man, told him to put his hands up on the bus stop, frisked him, and seized a gun from his pocket.
https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueThe Court in J.L. compared the facts of the case to those in White and determined that “[t]he tip in [J.L.] lacked the moderate indicia of reliability present in White and essential to the Court’s decision in that case.” The Court noted that the call in J.L. “provided no predictive information” as was present in White. The Court in J.L. rejected Florida’s argument that the tip was reliable because the defendant met the anonymous informant’s description of a particular person at a particular location; the Court stated that “[s]uch a tip . . . does not show that the tipster has knowledge of concealed criminal activity” and that “reasonable suspicion . . . requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueThe Court in J.L. described its decision in White as “borderline” and stated that “[i]f White was a close case on the reliability of anonymous tips, this one surely falls on the other side of the line.”
https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueAfter the Court of Appeals’ decision in this case, and after oral argument on further review to this court, the U.S. Supreme Court filed another opinion involving the Fourth Amendment and anonymous tips, Navarette v. California. At this court’s direction, the parties filed supplemental briefs. In Navarette, the U.S. Supreme Court concluded that under the totality of the circumstances in that case, an anonymous tip regarding reckless driving gave police reasonable suspicion that justified a traffic stop. In Navarette, an unidentified 911 emergency dispatch caller reported that another vehicle had run her vehicle off the road. The caller gave her location and a description of the other vehicle, including the license plate number. A police officer in the reported area saw a vehicle meeting the description and, without personally observing reckless driving or other violation of law, pulled the defendant’s vehicle over. A second officer, who had separately responded to the report, also arrived on the scene. As a result of the stop, the officers found 30 pounds of marijuana in the vehicle, which evidence the defendant sought to suppress on the basis that it had been obtained as the result of a traffic stop that was not supported by reasonable suspicion.
https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueThe U.S. Supreme Court stated that the initial question in its Fourth Amendment analysis was whether the anonymous tip was reliable. Under the facts in Navarette, the immediate focus was whether the call was sufficiently reliable to credit the allegation that the defendant’s vehicle had run the caller off the road. The majority in Navarette determined that due to certain factors, the call did bear adequate indicia of reliability. The factors on which the majority in Navarette relied were: (1) eyewitness knowledge, that is, the caller necessarily claimed to have personally observed the alleged dangerous driving; (2) contemporaneous reporting, that is, the caller reported the incident soon after it occurred; and (3) the caller’s use of the 911 emergency dispatch system, which system allows for identifying and tracing callers, thus providing some safeguard against false reports.
https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueAfter determining that the anonymous tip was a reliable report of having been run off the road, the majority in Navarette stated that “[e]ven a reliable tip will justify an investigative stop only if it creates reasonable suspicion that ‘criminal activity may be afoot’.” The majority therefore found it necessary to determine whether the anonymous caller’s tip created a “reasonable suspicion of an ongoing crime such as drunk driving as opposed to an isolated episode of past recklessness.” Id. The majority concluded that the reported behavior of the defendant driver, viewed from an objective standpoint, amounted to a reasonable suspicion of drunk driving. The majority in Navarette stated that rather than a conclusory allegation of drunk or reckless driving, the caller alleged a specific and dangerous result of the driver’s conduct which resembled “paradigmatic manifestations of drunk driving.” https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueIn concluding that there was reasonable suspicion to justify the traffic stop in Navarette, the majority acknowledged that, like the decision in White, the decision was a “close case.”
https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueJustice Scalia, joined by three other justices, dissented in Navarette. The dissent found fault with the factors relied on by the majority as indicia of reliability. With regard to the caller’s report that the defendant’s vehicle had run her vehicle off the road, the dissent stated that “the police had no reason to credit that charge and many reasons to doubt it, beginning with the peculiar fact that the accusation was anonymous.”
https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueThe dissent in Navarette did agree with the majority that the traffic stop “required suspicion of an ongoing crime, not merely suspicion of having run someone off the road earlier.” However, the dissent maintained that the caller’s report, at best, indicated careless or reckless driving rather than drunk driving and that “driving while being a careless or reckless person, unlike driving while being a drunk person, is not an ongoing crime.”
https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueWe apply the above-discussed U.S. Supreme Court precedent to the facts of this case. We note first that the district court relied on White to conclude that the anonymous tip in this case was sufficiently corroborated to supply reasonable suspicion for the traffic stop. This reliance was misplaced. The information supplied by the caller in this case is more similar to the corroborated information that the Court concluded in Florida v. J.L., did not supply reasonable suspicion. The information provided by the caller and corroborated by Kleensang in this case was merely a description of the vehicle and its general location. https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueThere was no prediction of future behavior as was present in Alabama v. White. Under J.L., corroboration of a description of the defendant and the defendant’s general location did not supply reasonable suspicion; instead, the Court stated that the caller’s information regarding illegal activity needed to be reliable.
https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueIn Navarette and White, the investigatory stops were approved, but both were seen as “close cases” by the U.S. Supreme Court. Because there are important differences in the totality of the circumstances between the present case and relevant precedent, we reach a different outcome. In particular, although the indicia of reliability in this case bear a similarity to those noted in Navarette, we believe there are two important factors explored below that lead to a different result: (1) Kleensang had reason to doubt the reliability of the anonymous caller’s report of illegal activity and (2) the anonymous caller in this case did not report an ongoing crime.
The majority in Navarette noted the following as indicia of reliability: (1) eyewitness knowledge, (2) contemporaneous reporting, and (3) the caller’s use of the 911 emergency dispatch system. In the present case, the caller claimed eyewitness knowledge of the event and made the call soon after it occurred. The record also indicates that the call was made to law enforcement through 911 or a similar emergency dispatch system.
Unlike the facts of Navarette, the officer in the present case made observations that raised doubts regarding the reliability of the caller’s report. Kleensang testified at the suppression hearing that before he saw Rodriguez' vehicle, he drove past the location where the person reported having been pushed out of the vehicle. Upon inspection, Kleensang did not see anyone at that location. The fact that Kleensang did not see anyone at the location claimed by the caller was a contraindication of reliability and weakened the value of the anonymous tip in establishing reasonable suspicion to stop Rodriguez' vehicle. The anonymous tip in this case bore weaker indicia of reliability than the tip in Navarette.
https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueAs we have explained above, the fact that the reported crime was seen as ongoing was critical to the outcome in Navarette v. California. Even though the majority and the dissent disagreed on whether the report of driving another vehicle off the road indicated ongoing drunk driving, the majority and the dissent agreed that the officer needed reasonable suspicion of an ongoing crime to justify an investigatory stop. In this regard, it has been stated that “an anonymous 911 call reporting an ongoing emergency is entitled to a higher degree of reliability and requires a lesser showing of corroboration than a tip that alleges general criminality.”
In the present case, the caller indicated only that he had been pushed from the described vehicle. There was nothing in the content of the call that indicated that the driver was driving drunk or that the driver posed a threat of public harm by driving recklessly. The caller did not report an ongoing crime and instead indicated an isolated past episode. The majority in Navarette found that the anonymous caller reported an ongoing crime, which finding was key to its decision. Such factor is not present in this case.
Keeping in mind that the decision in Navarette that the stop was justified was, in the words of the Court, a “close case,” we determine that the important differences present in the instant case as compared to Navarette are sufficient to tip the reasonable suspicion analysis in the other direction. The fact that Kleensang saw no one at the location where the caller reported having been thrown from a vehicle created doubt as to the anonymous caller’s reliability. Furthermore, the caller did not report an ongoing crime, which under Navarette and other case law is necessary to support the finding of reasonable suspicion justifying a traffic stop.
We conclude that on the record presented to the district court in this case, the court erred when it determined that there was reasonable suspicion to justify the traffic stop and overruled Rodriguez' motion to suppress. Therefore, the Court of Appeals committed reversible error when it affirmed the overruling of the motion to suppress and affirmed Rodriguez' conviction of DUI.
We conclude that the district court erred when it overruled Rodriguez' motion to suppress evidence obtained as a result of the traffic stop and that the Court of Appeals erred when it affirmed this ruling and Rodriguez' DUI conviction. We reverse the decision of the Court of Appeals and remand the cause to the Court of Appeals with directions to reverse the DUI conviction and remand the cause to the district court for a new trial. With regard to the State’s failure to dismiss the possession of methamphetamine count prior to the trial, we share the Court of Appeals’ disapproval of the State’s conduct. We conclude, however, that it is not necessary for us to decide the correctness of the lower courts’ decisions to the effect that a mistrial was not warranted for the misconduct because it will not be repeated upon remand for a new trial.
Reversed and remanded with directions.

Heavican, C.J., dissenting.
I respectfully dissent from the majority’s determination that the district court erred in overruling Rodriguez' motion to suppress. I would conclude that the stop of Rodriguez' vehicle was supported by reasonable suspicion.
https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueThe principles of law are well-established. As the U.S. Supreme Court noted in Navarette v. California. 
The Fourth Amendment permits brief investigative stops--such as the traffic stop in this case--when a law enforcement officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” . . . The “reasonable suspicion” necessary to justify such a stop “is dependent upon both the content of information possessed by police and its degree of reliability.” . . . The standard takes into account “the totality of the circumstances--the whole picture.” . . . Although a mere “hunch” does not create reasonable suspicion . . . , the level of suspicion the standard requires is “considerably less than proof of wrongdoing by a preponderance of the evidence,” and “obviously less” than is necessary for probable cause.
https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueAnd these principles “apply with full force to investigative stops based on information from anonymous tips.” While an anonymous tip, standing alone, “seldom demonstrates the informant’s basis of knowledge or veracity,” in the right circumstances, “an anonymous tip can demonstrate ‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop’.”
In my view, and considered in light of Navarette, the anonymous tip received by law enforcement was sufficiently reliable to provide law enforcement with reasonable suspicion to stop Rodriguez.
https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueFirst, the caller in this case reported that he had been pushed out of a moving vehicle. The Court in Navarette noted that the caller in that case, who had reported her vehicle’s being run off the road by a particular vehicle, “claimed eyewitness knowledge” of the incident and that such lends “significant support to the tip’s reliability.”
In addition, the caller was able to describe the vehicle in which he had been riding as a dark-colored GMC Envoy and to further report that the vehicle was heading westbound on Highway 26. Kleensang testified that he was about one to one and a half miles away from the location of the incident at the time of the dispatch and that he proceeded directly to Highway 26. Kleensang testified that about a quarter of a mile away from the site of the incident, he observed a green GMC Envoy westbound on Highway 26 getting ready to exit the highway. Thus, the distances and time involved suggest that the caller’s report of the incident was relatively contemporaneous with the incident. The Court in Navarette noted that such a report “has long been treated as especially reliable.” 
https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueFurthermore, the caller here, like the caller in Navarette, used the 911 system, or a similar dispatch system. Such lends further reliability to the caller’s tip because the safeguards and identification features of the system are such that “a reasonable officer could conclude that a false tipster would think twice before using” it. 
I am not concerned, as the majority is, that no one was at the place of the incident when Kleensang originally drove past it. In my view, in this circumstance, the fact that a person who had just been pushed out of a moving vehicle did not stay at the scene of the incident does not affect the reliability of that person’s report.
Nor am I concerned about any lack of additional suspicious conduct by Rodriguez following this anonymous report. The Court in Navarette noted that https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=truethe absence of additional suspicious conduct [did not] dispel the reasonable suspicion of drunk driving. . . . Once reasonable suspicion of drunk driving arises, “[t]he reasonableness of the officer’s decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques.” . . . This would be a particularly inappropriate context to depart from that settled rule because allowing a drunk driver a second chance for dangerous conduct could have disastrous consequences. 
In the same way, once Kleensang had a report that an individual had been pushed out of a moving vehicle, the failure to follow up on that report, especially when faced with a vehicle that matched the report’s description, defies reason and “could have disastrous consequences.” 
https://advance.lexis.com/search?crid=0c877816-1265-480c-96a8-67030bd0bfd5&pdsearchterms=288%20Neb.%20878&pdmfid=1000516&pdtypeofsearch=urlapi&pdfiltertext=urn%3Ahlct%3A5%2Curn%3Ahlct%3A15%2Curn%3Ahlct%3A1%2Curn%3Ahlct%3A2%2Curn%3Ahlct%3A3%2Curn%3Ahlct%3A10%2Curn%3Ahlct%3A4%2Curn%3Ahlct%3A12%2Curn%3Ahlct%3A13%2Curn%3Ahlct%3A9%2Curn%3Ahlct%3A8%2Curn%3Ahlct%3A7%2Curn%3Ahlct%3A16%2Curn%3Ahlct%3A14%2Curn%3Ahlct%3A18%2Curn%3Ahlct%3A6&pdsearchtype=dynand&pdisurlapi=trueI do acknowledge, of course, that this case is slightly different from Navarette. There, the Court noted that the caller’s “claim that another vehicle ran her off the road . . . necessarily implies that the informant knows the other car was driven dangerously,” while in this case, whatever crime that occurred as of the time Rodriguez allegedly pushed the caller out of the vehicle was arguably over. And I would agree that the act here is perhaps less predictive of drunk driving than the reckless driving in Navarette.
Still, on these facts, I ultimately see no reasonable distinction between hitting another vehicle or object and pushing an individual out of a moving vehicle. In my view, using the common sense we all hope law enforcement uses, it was reasonable for Kleensang to conclude that a driver who had been accused of pushing a passenger out of a moving vehicle might pose other threats while driving.
In sum, the caller in this case used the 911 emergency dispatch system to report that he had been pushed out of a moving vehicle. He described that vehicle and indicated the direction that vehicle had been traveling. Law enforcement found a [898] vehicle matching that description in the area where the caller said the vehicle was headed. Taken together, this is sufficient to create a reasonable suspicion to support Kleensang’s stop of Rodriguez' vehicle. I would affirm.

You Decide 4.3
City of St. Paul v. Uber, 450 N.W.2d 623 (Minn. Ct. App. 1990).
Appellant’s pickup truck was stopped by Officer David Mathison on January 31, 1989. Following the stop, Mathison ascertained that appellant’s driver’s license was revoked and expired.
At the time, Mathison had been employed as a police officer for approximately 18 months and was assisting the vice unit of the St. Paul Police Department. He first observed appellant at approximately 2:15 a.m. on January 31st when appellant was driving near the intersection of Kent Street and Charles Avenue in St. Paul. At that time, Mathison was working on another stop. Mathison next saw appellant at approximately 2:45 a.m. when he observed appellant’s vehicle make a left turn from University and proceed northbound on Mackubin. Mathison testified that he knew it was the same truck because he recognized the driver. Mathison radioed in the license plate numbers and learned that the vehicle was registered to a person in Mounds View, MN, a metro suburb located approximately 20 miles northwest of St. Paul. Upon learning that the vehicle was registered to someone in Mounds View, Mathison decided to stop appellant’s pickup. On cross-examination, Mathison conceded that he did not observe appellant exhibit any erratic driving behavior or engage in any illegal activity. Mathison also admitted that he did not have any outside information that appellant was suspected of involvement in any criminal activity. The officer testified that appellant was traveling around the posted speed at all times. Mathison did not observe appellant circle the block, make a stop, or pick up anyone. Appellant did not slow down, stop his vehicle, or engage in conversation with anyone who might be a prostitute. Also, at the time appellant’s vehicle was stopped, there is no evidence that any known or suspected prostitutes were near the vehicle. Nevertheless, upon ascertaining that appellant’s vehicle was registered to a Mounds View address, the officer made a decision to stop the vehicle because he thought appellant was engaging in suspicious criminal activity relative to prostitution.
Mathison testified that the Summit-University area is well-known as an area in which prostitution flourishes. Therefore, Mathison stated: 
Vehicles that do not normally belong in the area are stopped, driving privileges are checked, and we inquire as to why they are in the area.

Officer Mathison testified that certain characteristics are typical of persons looking for prostitutes. These include: one person in a [vehicle], the time of day, how often a vehicle is seen in the area, if it stops frequently, and if it picks up anybody.

The officer’s observations are not in dispute and have been reported near verbatim in this opinion. The trial court in its findings correctly noted the officer’s observations as being: one person in the vehicle, early morning hours 2:30–3:00 a.m., the vehicle being seen twice in the same general area within approximately 30 min, and a license plate check revealing registration to a person with a Mounds View address. The trial court accepted the officer’s allegation that these facts were similar to characteristics typical of customers frequenting prostitutes in the Summit-University area of St. Paul. Thus, we must examine the constitutional validity of “profile stops.” These stops generally involve a series of individual acts which are innocent and unrelated to criminal activity when examined separately, but which may form the basis for a reasonable suspicion of criminal activity when taken together. A “profile stop” (as with any vehicle stop based on suspicion of criminal activity) must conform to the constitutional protections afforded citizens by the Fourth Amendment2 of the Bill of Rights.
An investigatory stop may be undertaken without violating the Fourth Amendment, if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot.
Appellant was driving alone but in an area that is a main artery between Minneapolis and St. Paul, an area where after hours drivers can expect to find all night gas stations, fast-food places, 24-hr superettes, and an area of light industrial, retail/commercial activity, and literally thousands of residents. The Minneapolis/St. Paul metropolitan area is home to dozens of businesses with hundreds of manufacturing and service-type jobs that routinely employ late and midnight shifts. Any professional person working late, any person associated with custodial or maintenance work in a metro office building, manufacturing shift workers, late night personnel such as police officers, firefighters, taxicab drivers, etc, who live to the north or south of University Avenue in one of the many suburbs surrounding the Twin Cities, as appellant did, could easily find themselves in the vicinity of University Avenue after midnight looking for a particular business or residential address and not finding it on the first try. Standing alone, the fact that appellant was by himself in a vehicle in the general area of University Avenue after midnight is virtually meaningless. The next observable fact is that appellant was seen twice, but only twice, in the same general area within a 30-min time span. The arresting officer conceded that appellant was not seen circling the same block, was not observed stopping or slowing down in the vicinity of any known prostitutes, did not attempt to engage anyone in conversation, and, as stated above, testified that no erratic driving behavior of any kind nor any evasive activity was observed. Thus, the heart of our analysis rests, as the officer so testified, upon the fact that appellant’s vehicle was registered6 to a person in Mounds View, a metropolitan suburb of the Twin Cities. It is significant that the officer did nothing based on appellant’s driving conduct. It is not until he ran a radio check of appellant’s license plate and found out that the vehicle was registered to a person in Mounds View that he acted. In the officer’s mind that completed the “profile” of a male adult from out of the Summit-University area coming there to look for a prostitute.
We know of no authority that requires a resident of the State of Minnesota to have any reason to be on the public streets of another town as long as that person does not breach the peace or in any other way engage in improper behavior. No one from any suburb needs to justify his or her lawful presence on a public street in Minneapolis or St. Paul, or for that matter, on the public street of any other town. There simply needs to be something more than driving your own car in a proper and legitimate manner on the public streets of a town “other than the one you live in” before the authorities can stop citizens. What we do find is the officer’s assumption that appellant was seeking prostitution, upon learning that appellant’s vehicle was licensed to a resident of Mounds View, to be an inadvertent, but nevertheless invidious, form of discrimination.
We would not tolerate the blatant discriminatory proposition that any member of a minority group found on a public street in Edina7 after midnight had better live there or be required to stop and justify his or her presence to the authorities. Yet we have a similar proposition here. Mounds View is a predominately white suburb, as are all of the suburbs ringing Minneapolis and St. Paul. The Summit-University area is a mixed neighborhood containing Caucasians and people of color. Once we clear away the smoke from this case, it is clear that the stop of appellant, which only took place after his probable residence was ascertained, is premised on the belief that after midnight, Caucasian males from the suburbs are only in the Summit-University area for no good, and that after midnight, no good is all the Summit-University area has to offer. Neither the residents of Mounds View nor the residents of Summit-University deserve the implications of this case. It may be true that Summit-University has a higher incidence of prostitution than Mounds View, but simply being on a public street in an area where one “might” find a prostitute or a drug dealer does not, without more, meet any constitutional standard for a stop by the authorities.
The stop of appellant’s vehicle was not based upon reasonable articulable suspicion of criminal activity; thus, the evidence obtained from the stop must be suppressed, and appellant’s conviction for driving with an expired and revoked license must be vacated.

You Decide 4.4
United States v. Robinson, 846 F.3d 964 (9th Cir. 2017).
:
  This appeal presents the question of whether a law enforcement officer is justified in frisking a person whom the officer has lawfully stopped and whom the officer reasonably believes to be armed, regardless of whether the person may legally be entitled to carry the firearm. Stated otherwise, the question is whether the risk of danger to a law enforcement officer created by the forced stop of a person who is armed is eliminated by the fact that state law authorizes persons to obtain a permit to carry a concealed firearm.
  After receiving a tip that a man in a parking lot well-known for drug-trafficking activity had just loaded a firearm and then concealed it in his pocket before getting into a car as a passenger, Ranson, West Virginia police stopped the car after observing that its occupants were not wearing seat belts. Reasonably believing that the car’s passenger, Shaquille Robinson, was armed, the police frisked him and uncovered the firearm, leading to his arrest for the possession of a firearm by a felon.
   During his prosecution, Robinson filed a motion to suppress the evidence recovered as a result of the frisk, contending that the frisk violated his Fourth Amendment rights. The officers, he argued, had no articulable facts demonstrating that he was dangerous since, as far as the officers knew, the State could have issued him a permit to carry a concealed firearm. After the district court denied the motion to suppress, Robinson pleaded guilty to the illegal possession of a firearm, reserving the right to appeal the denial of his motion to suppress.
   On appeal, Robinson contends again that the information that police received from the tip described seemingly innocent conduct and that his conduct at the time of the traffic stop also provided no basis for officers to reach the conclusion that he was dangerous. He argues that “under the logic of the district court, in any state where carrying a firearm is a perfectly legal activity, every citizen could be dangerous, and subject to a Terry frisk and pat down.”
   We reject Robinson’s argument and affirm concluding that an officer who makes a lawful traffic stop and who has reasonable suspicion that one of the automobile’s occupants is armed may frisk that individual for the officer’s protection and the safety of everyone on the scene. The Fourth Amendment does not “require . . . police officers [to] take unnecessary risks in the performance of their duties.” And it is inconsequential that the person thought to be armed was a passenger. It is also inconsequential that the passenger may have had a permit to carry the concealed firearm. The danger justifying a protective frisk arises from the combination of a forced police encounter and the presence of a weapon, not from any illegality of the weapon’s possession. 
    The material facts in this case are not disputed. At about 3:55 p.m. on March 24, 2014, an unidentified man called the Ranson, West Virginia Police Department and told Officer Crystal Tharp that he had just “witnessed a Black male in a bluish greenish Toyota Camry load a firearm [and] conceal it in his pocket” while in the parking lot of the 7–Eleven on North Mildred Street. The caller advised Officer Tharp that the Camry was being driven by a White woman and had “just left” the parking lot, traveling south on North Mildred Street.
    The 7–Eleven on North Mildred Street is adjacent to the Apple Tree Garden Apartments, and the area constitutes the highest crime area in Ranson. One officer who testified said that in his short one and a half years as a state trooper, he had experience with at least 20 incidents of drug trafficking in the 7–Eleven parking lot. Another officer testified that “when [she] was doing drug work[,] . . . [she] dropped an informant off to buy drugs” at the 7–Eleven parking lot and observed “three other people waiting for drugs in that parking lot.” She added that she had personally received “numerous complaints” of people running between the parking lot and the apartment complex, making drug transactions. Another officer testified that “[a]nytime you hear Apple Tree or 7–Eleven, your radar goes up a notch.” Accordingly, when the Ranson Police Department received the tip about someone loading a gun in the 7–Eleven parking lot, its officers’ “radar [went] up a notch,” and the officers went “on heightened alert.”
    While still on the telephone with the caller, Officer Tharp relayed the information to Officer Kendall Hudson and Captain Robbie Roberts. Hudson immediately left the station to respond to the call, and Roberts left soon thereafter to provide backup.
   When Officer Hudson turned onto North Mildred Street a short time later, he observed a blue-green Toyota Camry being driven by a White woman with a Black male passenger. Noticing that they were not wearing seat belts, Hudson effected a traffic stop approximately seven blocks, or three-quarters of a mile, south of the 7–Eleven. He estimated that the traffic stop took place 2–3 min after the call had been received at the station.
    After calling in the stop, Officer Hudson approached the driver’s side of the vehicle with his weapon drawn but carried below his waist and asked the driver for her license, registration, and proof of insurance. He also asked the male passenger, the defendant Robinson, for his identification but quickly realized that doing so was “probably not a good idea” because “[t]his guy might have a gun[,] [and] I’m asking him to get into his pocket to get his I.D.” Instead, Officer Hudson asked Robinson to step out of the vehicle.
    At this point, Captain Roberts arrived and opened the front passenger door. As Robinson was exiting the vehicle, Captain Roberts asked him if he had any weapons on him. Instead of responding verbally, Robinson “gave [Roberts] a weird look” or, more specifically, an “‘oh, crap’ look[ ].” Roberts took the look to mean, “I don’t want to lie to you, but I’m not going to tell you anything [either].” At this point, Captain Roberts directed Robinson to put his hands on top of the car and performed a frisk for weapons, recovering a loaded gun from the front pocket of Robinson’s pants. After conducting the frisk, Roberts recognized Robinson, recalled that he had previously been convicted of a felony, and arrested him.
   After Robinson was charged with the illegal possession of a firearm by a felon. He filed a motion to suppress the evidence of the firearm and ammunition seized during the frisk, arguing that the frisk violated his Fourth Amendment rights.
The district court denied the motion, concluding that the officers possessed reasonable suspicion to believe that Robinson was armed and dangerous. The court concluded that the anonymous caller’s eyewitness knowledge and the contemporaneous nature of the report indicated that the tip was sufficiently reliable to contribute to the officers’ reasonable suspicion. The court explained that the “anonymous tip that [Robinson] [had] recently loaded a firearm and concealed it on his person in a public parking lot in a high-crime area,” as well as Robinson’s “weird look and failure to verbally respond to the inquiry whether he was armed,” gave rise to a reasonable suspicion that Robinson was armed and dangerous.
     Robinson thereafter pleaded guilty to the firearm possession charge, reserving his right to appeal the district court’s denial of his suppression motion, and the district court sentenced him to 37 months’ imprisonment. Robinson appealed the denial of his motion to suppress, and a panel of this court reversed the district court’s decision denying Robinson’s motion to suppress and vacated his conviction and sentence. By order dated April 25, 2016, we granted the government’s petition for rehearing en banc, which vacated the panel’s judgment and opinion. 
    Robinson’s appeal is defined as much by what he concedes as by what he challenges. Robinson rightfully acknowledges that the Ranson police had the right to stop the vehicle in which he was a passenger after observing a traffic violation and also that they had the authority to direct him to exit the vehicle during the valid traffic stop. He also correctly concedes that the anonymous tip received by the Ranson Police Department was sufficiently reliable to justify the officers’ reliance on it. An anonymous 911 call “bore adequate indicia of reliability for the officer to credit the caller’s account” in large part because, . . . the caller “claimed eyewitness knowledge of the alleged [conduct],” and the call was a “contemporaneous report” that was “made under the stress of excitement caused by a startling event.” Finally, and most importantly, Robinson does not contest the district court’s conclusion that the police had reasonable suspicion to believe that he was armed.
     Robinson’s argument focuses on whether the officers could reasonably have suspected that he was dangerous. He argues that while the officers may well have had good reason to suspect that he was carrying a loaded concealed firearm, they lacked objective facts indicating that he also was dangerous, so as to justify a frisk for weapons, since an officer must reasonably suspect that the person being frisked is both armed and dangerous. Robinson notes that at the time of the frisk, West Virginia. And, because the police did not know whether or not he possessed such a license, the tip that a suspect matching his description was carrying a loaded firearm concealed in his pocket was, he argues, a report of innocent behavior that was not sufficient to indicate that he posed a danger to others. Moreover, he argues, his behavior during the stop did not create suspicion--“he was compliant, cooperative, [and] not displaying signs of nervousness.” In these circumstances, he concludes, the officer’s frisk was not justified by any reasonable suspicion that he was dangerous.
Robinson’s argument presumes that the legal possession of a firearm cannot pose a danger to police officers during a forced stop, and it collapses the requirements for making a stop with the requirements for conducting a frisk. It thus fails at several levels when considered under the Supreme Court’s “stop-and-frisk” jurisprudence. 
First, Robinson confuses the standard for making stops--which requires a reasonable suspicion that a crime or other infraction has been or is being committed--with the standard for conducting a frisk--which requires both a lawful investigatory stop and a reasonable suspicion that the person stopped is armed and dangerous. Second, he fails to recognize that traffic stops alone are inherently dangerous for police officers. Third, he also fails to recognize that traffic stops of persons who are armed, whether legally or illegally, pose yet a greater safety risk to police officers. And fourth, he argues illogically that when a person forcefully stopped may be legally permitted to possess a firearm, any risk of danger to police officers posed by the firearm is eliminated.
    We begin by noting that the Supreme Court has repeatedly recognized that whenever police officers use their authority to effect a stop, they subject themselves to a risk of harm. This holds true whether the temporary detention is a traditional, “on-the-street” Terry stop to investigate an officer’s reasonable suspicion “that the person apprehended is committing or has committed a criminal offense,” or a stop of a motor vehicle and all of its occupants to enforce a jurisdiction’s traffic laws. The Supreme Court has explained that “the risk of a violent encounter in a traffic stop setting ‘stems not from the ordinary reaction of a motorist stopped for a speeding violation but from the fact that evidence of a more serious crime might be uncovered during the stop’.” Indeed, the Court has concluded that traffic stops are “especially fraught with danger to police officers.” And the Court has also observed that when the stop involves one or more passengers, that fact “increases the possible sources of harm to the officer,” as “the motivation of a passenger to employ violence . . . is every bit as great as that of the driver.”
     In Wilson, the Court observed that “[i]n 1994 alone, there were 5,762 officer assaults and 11 officers killed during traffic pursuits and stops,” prompting the Court to conclude that the public interest in police officer safety during traffic stops is “both legitimate and weighty,” and more recent statistics, unfortunately, remain as grim. Of the 51 law enforcement officers feloniously killed in the line of duty in 2014, 9 officers (or 18%) were fatally injured during traffic pursuits or stops. 
  To be clear, the general risk that is inherent during a traffic stop does not, without more, justify a frisk of the automobile’s occupants. But the risk inherent in all traffic stops is heightened exponentially when the person who has been stopped--a person whose propensities are unknown--is “armed with a weapon that could unexpectedly and fatally be used against” the officer in a matter of seconds. As such, when the officer reasonably suspects that the person he has stopped is armed, the officer is “warranted in the belief that his safety . . . [is] in danger,” thus justifying a Terry frisk.
   In Terry, Officer McFadden “seized” Terry on the street and subjected him to a “search” without probable cause to believe that he had committed or was committing a crime or that he was armed. The Court was thus confronted with two distinct constitutional issues: first, whether a person could be stopped (seized) on suspicion of criminal conduct that fell short of probable cause; and second, whether the officer could conduct a protective frisk or “pat down” for weapons (search) during the stop. The Court readily concluded that Terry’s seizure was “reasonable” under the Fourth Amendment because the officer reasonably believed that criminal conduct was afoot. The Court then turned its attention to the legality of the frisk, stating, “We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him.”
   The concern--i.e., the danger--was thus found in the presence of a weapon during the forced police encounter. Indeed, the Court said as much, noting in approving Officer McFadden’s frisk of Terry that “a reasonably prudent man would have been warranted in believing petitioner” was armed and thus presented a threat to the officer’s safety. In this manner, the Court adopted the now well-known standard that an officer can frisk a validly stopped person if the officer reasonably believes that the person is “armed and dangerous.” 
   The Supreme Court applied Terry to circumstances analogous to those before us in Mimms, where an officer, after making a routine traffic stop, “noticed a large bulge” under the defendant’s jacket and therefore conducted a frisk. Holding that the frisk was clearly justified, the Mimms Court explained that “[t]he bulge in the jacket permitted the officer to conclude that Mimms was armed and thus posed a serious and present danger to the safety of the officer,” adding that “[i]n these circumstances, any man of ‘reasonable caution’ would likely have conducted the ‘pat down’.” The only evidence of Mimms’ dangerousness was the bulge indicating that he was armed. It was thus Mimms’ status of being armed during a forced police encounter (the traffic stop) that posed the danger justifying the frisk, and we have previously relied on Mimms for that precise principle. 
  In short, established Supreme Court law imposes two requirements for conducting a frisk but no more than two: First, that the officer have conducted a lawful stop, which includes both a traditional Terry stop as well as a traffic stop; and second, that during the valid but forced encounter, the officer reasonably suspect that the person is armed and therefore dangerous. In both Terry and Mimms, the Court deliberately linked “armed” and “dangerous,” recognizing that the frisks in those cases were lawful because the stops were valid and the officer reasonably believed that the person stopped “was armed and thus” dangerous. The use of “and thus” recognizes that the risk of danger is created simply because the person, who was forcibly stopped, is armed.
    In this case, both requirements--a lawful stop and a reasonable suspicion that Robinson was armed--were satisfied, thus justifying Captain Roberts’ frisk under the Fourth Amendment as a matter of law.
   Robinson argues that Mimms is distinguishable because the frisk there took place in a jurisdiction that made it a crime to carry a concealed deadly weapon. West Virginia, on the other hand, generally permits its citizens to carry firearms. From this distinction, Robinson argues that when the person forcibly stopped may be legally permitted to possess a firearm, the risk of danger posed by the firearm is eliminated. This argument, however, fails under the Supreme Court’s express recognition that the legality of the frisk does not depend on the illegality of the firearm’s possession. Indeed, the Court has twice explained that “[t]he purpose of this limited search [i.e., the frisk] is not to discover evidence of crime but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable, whether or not carrying a concealed weapon violated any applicable state law.” “[W]e have expressly rejected the view that the validity of a Terry search [i.e., a frisk] depends on whether the weapon is possessed in accordance with state law”. Robinson’s position directly conflicts with these observations.
     Notwithstanding the Supreme Court’s statements, Robinson’s position also fails as a matter of logic to recognize that the risk inherent in a forced stop of a person who is armed exists even when the firearm is legally possessed. The presumptive lawfulness of an individual’s gun possession in a particular State does next to nothing to negate the reasonable concern an officer has for his own safety when forcing an encounter with an individual who is armed with a gun and whose propensities are unknown. Accordingly, we conclude that given Robinson’s concession that he was lawfully stopped and that the police officers had reasonable suspicion to believe that he was armed, the officers were, as a matter of law, justified in frisking him and, in doing so, did not violate Robinson’s Fourth Amendment rights.
     While the lawful traffic stop of Robinson and the reasonable suspicion that he was armed justified the frisk in this case, the officers had knowledge of additional facts that increased the level of their suspicion that Robinson was dangerous.
    First, the reliable tip in this case was not just that an individual matching Robinson’s description possessed a firearm. Rather, the caller reported that he had observed an individual “load a firearm [and] conceal it in his pocket” while in the parking lot of the 7–Eleven on North Mildred Street, a location that the officers knew to be a popular spot for drug-trafficking activity. Four officers testified about the high level of drug-trafficking and other criminal activities in that particular parking lot, prompting one to explain, “[a]nytime you hear . . . 7–Eleven, your radar goes up a notch.” Knowing that the 7–Eleven parking lot was frequently used as a site for drug trafficking, a reasonable officer could legitimately suspect that an individual who was seen both loading and concealing a firearm in that very parking lot may well have been doing so in connection with drug-trafficking activity, making his possession of a firearm even more dangerous. 
    Second, when Captain Roberts asked Robinson, as he was getting out of the car, whether he was carrying any firearms, Robinson failed to respond verbally and instead gave the officer an “‘oh, crap’ look[ ],” which Roberts took to mean, “I don’t want to lie to you, but I’m not going to tell you anything [either].” Surely, Robinson’s evasive response further heightened Captain Roberts’ legitimate concern as to the dangerousness of the situation.
    While not necessary to the conclusion in this case, these facts can only confirm Captain Roberts’ reasonable suspicion that Robinson was dangerous and therefore should be frisked for the protection of the officer and all others present. Indeed, in light of all of the circumstances known to Captain Roberts, he would unquestionably have been criticized for not conducting a frisk if, after having failed to do so, something untoward had happened.
* * *
The judgment of the district court is accordingly affirmed.
Wynn, Circuit Judge, concurring in the judgment:
Defendant Shaquille Robinson concedes that law enforcement officers reasonably suspected that he was carrying a firearm. https://casetext.com/case/united-states-v-robinson-630 - idm140581656803552Defendant further concedes that the law enforcement officers lawfully stopped him for an unrelated, albeit pretextual, reason. I agree with the majority that these facts alone allowed the officers to perform a protective frisk of defendant during the stop. 
The majority states that the law enforcement officers received a “tip” that defendant was carrying a loaded firearm. Anteat 695–96.
Carrying a loaded firearm in West Virginia is presumptively lawful activity. Thus, information that an individual is engaging in presumptively lawful activity should not constitute a “tip” for purposes of this analysis.
In reaching this conclusion, the majority frames this case as a run-of-the-mill search-and-seizure case involving a traffic stop in which we must assess whether law enforcement officers had reasonable suspicion to frisk defendant based on the facts known to the officers at the time they conducted the frisk. To that end, the majority focuses on the dangers law enforcement officers face in conducting lawful stops, particularly traffic stops, and the officers’ reasonable suspicion that defendant had a “weapon.”
But this case is not about traffic stops or “weapons”--it is about firearms and the danger they pose to law enforcement officers. In particular, this case arises from the defendant’s presumptively lawful activity of carrying a firearm, which became the basis for making a pretextual, albeit lawful, stop for not wearing a seat belt. From these remarkable facts, the majority opinion reduces the issue in this case to whether the officers justifiably frisked defendant, after a lawful stop, because they had a “tip” that defendant carried a “weapon.”
By focusing on the officers’ justification--rather than defendant’s presumptively lawful decision to carry a firearm--the majority elides discussion of the two key issues in this case: (1) whether individuals who carry firearms--lawfully or unlawfully--pose a categorical risk of danger to others and police officers, in particular, and (2) whether individuals who choose to carry firearms forego certain constitutional protections afforded to individuals who elect not to carry firearms. As explained in more detail below, the majority opinion’s attempt to duck these questions is futile because its conclusion necessarily answers “yes” to both questions.
    First, the majority opinion altogether avoids addressing the first issue--whether individuals who carry firearms (lawfully or unlawfully) pose a categorical risk of danger to others--by reinterpreting the Supreme Court’s long-established test for determining whether law enforcement officers lawfully performed a protective frisk. Under that test, the question is whether the officers had “reasonable suspicion that the person subjected to the frisk is armed and dangerous.” Instead of according “dangerous” an independent meaning, the majority contends that “armed and dangerous” is a unitary concept--if law enforcement officers reasonably suspect a detainee is “armed,” they necessarily reasonably suspect he is “dangerous.” (“[T]he risk of the danger is created simply because the person, who was forcibly stopped, is armed.”) I disagree with the majority opinion’s contention that “armed and dangerous” is a unitary concept.
To be sure, from the outset, stripping “dangerous” of independent meaning violates the long-standing. That is why other Circuits have held that law enforcement officers must reasonably suspect a detainee is “both armed and a danger to the safety of officers or others” before conducting a frisk. 
   The view of the other Circuits on according “dangerous” an independent meaning makes sense because the majority opinion’s unitary meaning interpretation would allow law enforcement officers to frisk a wide swath of lawfully stopped individuals engaging in harmless activity. Indeed, by definition, an individual is “armed” if he is [e]quipped with a weapon.
    To illustrate the absurdity of the majority opinion’s unitary meaning interpretation, consider, for example, that courts have found a bottle to be a “weapon.” (Courts have held that a wine bottle can be a dangerous weapon.) Under the majority’s unitary meaning interpretation, officers informed that an individual was leaving a convenience store “armed” with a bottle of wine could, after a lawful stop, frisk that individual because, in the majority’s words, “the risk of the danger is created simply because the person, who was forcibly stopped, is armed.” 
As Justice Brennan noted, numerous everyday objects turn into “weapons” when put to appropriate use:
    A “weapon” could include a brick, a baseball bat, a hammer, a broken bottle, a fishing knife, barbed wire, a knitting needle, a sharpened pencil, a riding crop, a jagged can, rope, a screw driver, an ice pick, a tire iron, garden shears, a pitch fork, a shovel, a length of chain, a penknife, a fork, metal pipe, a stick, and so on. The foregoing only illustrates the variety of lawful objects which are often innocently possessed without wrongful intent.
Under the majority opinion’s unitary meaning interpretation, reasonable suspicion that an individual possessed any of these items would give rise to reasonable suspicion to frisk the individual, after a lawful stop, even absent any evidence the individual intended to use the object as a weapon. The Fourth Amendment does not contemplate giving law enforcement officers such wide-ranging authority to engage in warrantless frisks of detainees. 
   The majority nonetheless contends that the Supreme Court “deliberately linked ‘armed’ and ‘dangerous’” in Terry. But, when the Supreme Court has elaborated on the test for a lawful frisk, it has highlighted the independent role of “dangerousness,” holding that Terry authorizes a “frisk” of an automobile when law enforcement officers reasonably suspect “that the suspect is dangerous and the suspect may gain immediate control of weapons.” How then do we reconcile the language in Terry and Mimms, upon which the majority relies, with Long and the plain language of the test, which requires that officers reasonably suspect an individual is both armed and dangerous? The answer plainly lies in the type of “weapon” at issue.
   In Long, the officers reasonably suspected that the defendant had a knife. By contrast, in Terry and Mimms, the officers reasonably suspected the detainees had firearms. Accordingly, Terry and Mimms collapse the “armed and dangerous” test into a single inquiry only when law enforcement officers reasonably suspect that a detainee has a firearm or other inherently dangerous weapon. Such a reading ensures that the “armed” and “dangerous” prongs retain distinct meaning and places meaningful restrictions on law enforcement officers’ ability to frisk lawfully stopped individuals.
     But the majority opinion also contends that we should collapse the “armed and dangerous” test into a single inquiry--regardless of the type of “weapon” with which the detainee is “armed”--because the combination of a “forcible stop” and an armed detainee poses a “risk of danger.” Yet committing a minor traffic violation--a seat belt violation here--provides no basis to believe an individual poses any special danger warranting departure from the rule that law enforcement officers may not, as a general matter, frisk lawfully detained individuals. Likewise, as explained above, given the numerous objects that can constitute “weapons,” being “armed” does not, by itself, establish that an individual poses a danger. Rather, what the majority opinion skillfully avoids is that the “risk of danger” to the officers arose from the officers’ reasonable suspicion defendant was carrying a firearm.
                                                                                                          
   Confronting the inescapable reality that lawfully stopped individuals armed with firearms are categorically dangerous reflects the heightened danger posed by firearms. To that end, the Supreme Court has held that “a gun is an article that is typically and characteristically dangerous; the use for which it is manufactured and sold is a dangerous one, and the law reasonably may presume that such an article is always dangerous.” This Court also has recognized “the substantial risk of danger and the inherently violent nature of firearms.” Indeed, the Supreme Court’s decision in District of Columbia v. Heller--which first recognized the individual right to carry firearms--is premised on the dangerousness of carrying firearms. 
    And the widespread judicial recognition of the inherent dangerousness of firearms accords with the evidence. The Department of Justice reported that in 2011, the most recent year for which comprehensive statistics are available, a total of 478,400 fatal and nonfatal violent crimes were committed with a firearm. Likewise, firearms are a leading cause of injury-related death in the United States and have been for many years. Accordingly, as a matter of law and fact, firearms--and therefore individuals who choose to carry firearms--are inherently dangerous.
    In sum, individuals who carry firearms--lawfully or unlawfully--pose a risk of danger to themselves, law enforcement officers, and the public at large. Accordingly, law enforcement officers may frisk lawfully stopped individuals whom the officers reasonably suspect are carrying a firearm because a detainee’s possession of a firearm poses a categorical “danger” to the officers.
    Having determined that individuals who are armed with a firearm are categorically “dangerous,” we confront the second issue--whether individuals who choose to carry firearms sacrifice certain constitutional protections afforded to individuals who elect not to carry firearms. We must confront this issue because treating individuals armed with firearms--lawfully or unlawfully--as categorically dangerous places special burdens on such individuals. Today we recognize one such burden: Individuals who carry firearms elect to subject themselves to being frisked when lawfully stopped by law enforcement officers.
    I see no basis--nor does the majority opinion provide any--for limiting our conclusion that individuals who choose to carry firearms are categorically dangerous to the Terry frisk inquiry. Accordingly, the majority decision today necessarily leads to the conclusion that individuals who elect to carry firearms forego other constitutional rights, like the Fourth Amendment right to have law enforcement officers “knock and announce” before forcibly entering homes. Likewise, it is difficult to escape the conclusion that individuals who choose to carry firearms necessarily face greater restriction on their concurrent exercise of other constitutional rights, like those protected by the First Amendment. 
     The Supreme Court has long recognized that “[t]he promotion of safety of persons and property is unquestionably at the core of the State’s police power,” . . . . Thus, like most rights, the right protected by the Second Amendment--which defendant’s conduct may or may not implicatehttps://casetext.com/case/united-states-v-robinson-630 - idm140581657397824--“is not unlimited” and therefore does not amount to “a right to keep and carry any weapon whatsoever.” 
.   In sum, because the carrying of a firearm poses a categorical danger to others--in this case, law enforcement officers--the law enforcement officers lawfully frisked defendant, after lawfully detaining him, based on information that he carried a firearm. Accordingly, I concur in the majority opinion’s decision to affirm defendant’s convictions.
Pamela Harris, Circuit Judge, with whom Gregory, Chief Judge, Diana Gribbon Motz, Circuit Judge, and Davis, Senior Circuit Judge, join, dissenting:
  In many jurisdictions and for many years, police officers could assume that anyone carrying a concealed firearm was up to no good. Because public possession of guns was prohibited or tightly regulated, concealed firearms were hallmarks of criminal activity, deadly weapons carried by lawbreakers to facilitate their crimes. So it followed, without much need for elaboration, that if a suspect legally stopped by the police was carrying a gun, then he was not only “armed” but also “dangerous,” justifying a protective frisk under. 
   But that is no longer the case, at least in states like West Virginia. Today in West Virginia, citizens are legally entitled to arm themselves in public, and there is no reason to think that a person carrying or concealing a weapon during a traffic stop--conduct fully sanctioned by state law--is anything but a law-abiding citizen who poses no threat to the authorities. And as behavior once the province of lawbreakers becomes commonplace and a matter of legal right, we no longer may take for granted the same correlation between “armed” and “dangerous.”
    The majority disagrees, adopting a bright-line rule that any citizen availing himself or herself of the legal right to carry arms in public is per se “dangerous” under the Terry formulation and therefore subject to frisk and disarmament, at police discretion, if stopped for a traffic violation or some other minor infraction. It may be, as the concurring opinion suggests, that this is where we will end up--that the price for exercising the right to bear arms will be the forfeiture of certain Fourth Amendment protections. But unless and until the Supreme Court takes us there, I cannot endorse a rule that puts us on a collision course with rights to gun possession rooted in the Second Amendment and conferred by state legislatures. Nor would I adopt a rule that leaves to unbridled police discretion the decision as to which legally armed citizens will be targeted for frisks, opening the door to the very abuses the Fourth Amendment is designed to prevent. I must respectfully dissent.
   [A]s public possession and display of firearms become lawful under more circumstances, Fourth Amendment jurisprudence and police practices must adapt. Within the last decade, federal constitutional law has recognized new Second Amendment protections for individual possession of firearms, and state law has followed, providing expanded rights to carry guns in public. That states have elected to trust their citizens to carry guns safely cannot, of course, change federal Fourth Amendment law. But it does change the facts on the ground to which Fourth Amendment standards apply. And once it no longer is the case that the public carry of guns is illegal or even unusual, courts must take into account that changed circumstance in applying the familiar Terry standard. 
      We have recognized as much already when it comes to the “stop” portion of a Terry “stop and frisk,” justified on reasonable suspicion of criminal activity. In jurisdictions in which the public carry of firearms is prohibited or closely regulated, a concealed gun is indicative of criminal activity and may give rise to “reasonable suspicion” sufficient to justify an investigative stop. But when a state elects to legalize the public carry of firearms, we have held, the Fourth Amendment equation changes, and public possession of a gun is no longer “suspicious” in a way that would authorize a Terry stop. “Permitting such a justification” for a Terry stop, we explained, “would eviscerate Fourth Amendment protections for lawfully armed individuals in those states.” 
     In my view, the same reasoning compels the conclusion that in a state like West Virginia, which broadly allows public possession of firearms, reasonable suspicion that a person is armed does not by itself give rise to reasonable suspicion that the person also is dangerous, so as to justify a Terry frisk. Guns, of course, are in some sense intrinsically dangerous. But the question under Terry is whether a person carrying a gun is a danger to the police or others. And where the state legislature has decided that its citizens may be entrusted to safely carry firearms on public streets and during traffic stops, and law-abiding citizens have availed themselves of these rights, I do not see how we can presume that every one of those citizens necessarily poses a danger to the police. To be clear: As Officer Tharp testified at the suppression hearing, none of the conduct reported in the anonymous tip she received--that an African American man had loaded a gun in the parking lot of a 7–Eleven and then concealed it in his pocket before leaving in a car--was illegal under West Virginia law. Nor was there any testimony from the officers that the reported conduct was unusual, or “out of place” where it occurred. In terms of Robinson’s behavior, the officers knew nothing except that Robinson was engaging in what we must treat as a presumptively lawful exercise of his right to carry a concealed weapon. If that by itself is enough to make a person “dangerous” for Terry purposes, then the legal right to carry arms in public is perfectly self-defeating: The moment a person exercises that right--and has the misfortune to be stopped for a traffic violation or other minor infraction--he opens himself up to being frisked and disarmed, at least temporarily, by law enforcement officers.
    The majority insists that this result, putting at cross-purposes Fourth Amendment and gun possession rights, is compelled by the Supreme Court’s holdings in Terry and Mimms. According to the majority, those cases establish that if the police have reasonable suspicion that a suspect is “armed,” then they necessarily have reasonable suspicion that he is “dangerous,” as well, justifying a frisk under Terry’s “armed and dangerous” standard. In other words, when the Supreme Court says “armed and dangerous,” what it really means is “armed and therefore dangerous,” or, put more simply, “armed.”
But the Supreme Court for decades has adhered to its conjunctive “armed and dangerous” formulation, giving no indication that “dangerous” may be read out of the equation as an expendable redundancy. Indeed, until its latest filing before our en banc court, the government itself understood “armed” and “dangerous” as separate and independent conditions of a lawful Terry frisk. 
  Nobody--including Robinson--doubts that as in Mimms and Terry, a presumptively illegal concealed gun gives rise to a reasonable suspicion of dangerousness, allowing the police to conduct a protective frisk. But those cases simply do not speak to the very different circumstances presented when public gun possession is presumptively legal, and there no longer is reason to believe that a person carrying a gun during a traffic stop is anything but a perfectly law-abiding citizen.
   The problems with treating “armed and dangerous” as a “unitary” concept, go beyond the mismatch with precedent. As the concurring opinion cogently explains, the logic of Terry frisk doctrine is premised on an independent role for dangerousness: Whether a person in possession of, say, a screwdriver is deemed “armed” under Terry depends entirely on whether there is separate reason to believe he or she also is “dangerous” and thus might use that screwdriver as a weapon. And though it purports to rely on a common-sense equation of guns with danger, the majority’s approach can embrace that connection only very selectively: An armed citizen in an open-carry jurisdiction necessarily poses a “danger” to the police that justifies a protective frisk if and only if he appears to have committed some offense, however, trivial--like the seatbelt violation here--leading to a valid stop. If, on the other hand, the police in this case had initiated a consensual encounter with Robinson in the 7–Eleven parking lot, then the gun Robinson was suspected of carrying would not have been grounds for a frisk, as the government conceded at oral argument. Likewise, had Robinson exited the car in which he was a passenger before the police could conduct their pretextual traffic stop, then again he would no longer be “dangerous” for purposes of allowing a Terry frisk, notwithstanding the concealed gun in his pocket. To be sure, as the majority explains, Terry doctrine requires that a frisk be attendant to a lawful stop. But if “armed” may be conflated with “dangerous” under Terry, then it is hard to see why an officer’s right to protect him or herself would be made to turn on whether a dangerous person carrying a gun has remembered to fasten his seat belt.
   Most important, by equating “armed” with “dangerous” even in states where the carrying of guns is widely permitted, the majority’s rule has the effect of depriving countless law-abiding citizens of what otherwise would be their Fourth Amendment and other constitutional rights. As the concurring opinion explains, the upshot of the majority’s approach is that citizens who avail themselves of their legal right to carry firearms will be subject to a wide range of “special burdens,” the full extent of which we only can begin to discern. Certainly, such citizens may be frisked and temporarily disarmed when stopped, even for the most minor of infractions; if they necessarily are “dangerous,” then the police should be free to dispense with Fourth Amendment “knock-and-announce” protections before entering their homes; and when armed and “therefore dangerous” citizens seek to assemble in public, their First Amendment rights may be restricted based on the risk they are conclusively presumed to pose to public safety. I would add one more: If a police officer reasonably believes that a suspect poses a “threat of serious physical harm,” he may use deadly force to protect himself, and while we have held in the past that the presence of a gun alone does not constitute a “threat,” or establish that a suspect is “dangerous” to an officer, today’s decision insisting on a conclusive link between “armed” and “dangerous” undoubtedly will have implications for police use of force, as well. Those consequences--and others that surely will follow--are profound, both practically and constitutionally, and I would not be so quick to invite them without some direction from the Supreme Court.
     But my biggest concern is that these “special burdens”--most relevantly, the Terry frisks at issue here--will not be distributed evenly across the population. Allowing police officers making stops to frisk anyone thought to be armed, in a state where the carrying of guns is widely permitted, “creates a serious and recurring threat to the privacy of countless individuals,” And, critically, it “gives police officers unbridled discretion” to decide which of those legally armed citizens will be targeted for frisks, implicating concerns about the abuse of police discretion that are fundamental to the Fourth Amendment. As Judge Hamilton warned in Williams, once a state legalizes the public possession of firearms, unchecked police discretion to single out anyone carrying a gun gives rise to “the potential for intentional or unintentional discrimination based on neighborhood, class, race, or ethnicity.”
    The government assures that we need not worry about these possible disproportionate effects because a Terry frisk may be conducted only after a stop on reasonable suspicion of “criminal activity”--an “objective standard” that “prevents police stops on hunches alone.” But that simply is not so, and to understand why not, we need look no further than the facts of this very case. Robinson was not stopped for “criminal activity,” at least as that term generally is understood. As a legal matter, he was stopped because Officer Hudson observed a seat belt violation--the kind of minor and routine traffic infraction that does next to nothing to narrow the class of legally armed citizens who may be subjected to a frisk at police discretion. And in reality, as Officer Hudson candidly testified at the suppression hearing, Robinson was stopped so that the police could investigate the tip they had received about a Black male carrying a concealed firearm. Though Robinson’s gun possession was presumptively lawful in light of West Virginia’s generous public-carry laws, that is, Robinson was stopped precisely because the police had a hunch that his possession in fact might be unlawful.
It is true, as the government argues, that under Whren, the Fourth Amendment permits this kind of pretextual traffic stop, undertaken in order to explore some unsupported hunch. But that is exactly the problem: In light of Whren, the requirement that a valid stop precede a Terry frisk imposes no meaningful limit at all on police discretion. If the police in a public-carry jurisdiction want to target a particular armed citizen for an exploratory frisk, then they need do no more than wait and watch for a moving violation, as in this case--or a parking violation, or, for the pedestrians among us, a jaywalking infraction, as the government helpfully explained at oral argument--and then make a pretextual stop.
    And we should be clear about the degree to which that pretextual stop may be leveraged into a wide-ranging and intrusive investigation . . . . So with possession of a firearm in a public-carry state now enough to generate a reasonable suspicion of dangerousness, pretextual stops will allow police officers to target law-abiding gun owners not only for intrusive frisks but also for limited car searches, at police discretion and on the basis of nothing more than a minor infraction. 
     I recognize the serious concerns for officer safety that underlie the Terry frisk doctrine and the majority’s opinion. Those concerns, as the majority points out, may be especially pronounced during traffic stops-though of course, the majority’s rule is not limited to the context of traffic stops. And I do not doubt that recent legal developments regarding gun possession have made the work of the police more dangerous as well as more difficult.
In my view, states have every right to address these pressing safety concerns with generally applicable and evenhanded laws imposing modest burdens on all citizens who choose to arm themselves in public. For instance, many states--though not West Virginia--seek to reconcile police safety and a right to public carry through “duty to inform” laws, requiring any individual carrying a weapon to so inform the police whenever he or she is stoppedhttps://casetext.com/case/united-states-v-robinson-630 - idm140581654578832 or in response to police queries.https://casetext.com/case/united-states-v-robinson-630 - idm140581654577808 And if a person fails to disclose a suspected weapon to the police as required by state law, then that failure itself may give rise to a reasonable suspicion of dangerousness, justifying a protective frisk. 
See, for example, Alaska Stat. § 11.61.220; La. Stat. § 40:1379.3; Neb. Rev. Stat. § 69–2440; N.C. Gen. Stat. § 14–415.11; Okla. Stat. tit. 21, § 1290.8.
See, for example, Ariz. Rev. Stat. § 13–3112; Ark. Code § 5–73–315; 430 Ill. Comp. Stat. 66/10; S.C. Code § 23–31–215.
West Virginia, however, has taken a different approach, permitting concealed carry without the need for disclosure or temporary disarmament during traffic stops. For the reasons described above, I do not believe we may deem inherently “dangerous” any West Virginia citizen stopped for a routine traffic violation, on the sole ground that he is thought to have availed himself fully of those state-law rights to gun possession. Nor, in my view, does the Fourth Amendment allow for a regime in which the safety risks of a policy like West Virginia’s are mitigated by selective and discretionary police spot-checks and frisks of certain legally armed citizens, by way of pretextual stops or otherwise. Absent some “specific, articulable suspicion of danger” in a particular case, West Virginia’s citizens, including its police officers, must trust their state’s considered judgment that the benefits of its approach to public gun possession outweigh the risks.
    The majority’s rule is bright-line and broad: Any citizen carrying a gun in a public-carry jurisdiction is “armed” and also per se “dangerous” under Terry, regardless of surrounding circumstances. Maj. Op. at 701. The majority goes on, however, to consider the particular facts surrounding Robinson’s stop and concludes that they confirm a reasonable suspicion of dangerousness. Though this portion of the majority’s opinion appears to be dicta unnecessary to its holding, I respectfully note my disagreement.
   To be clear, I have no quarrel with the majority’s premise: that under certain circumstances, even a lawfully possessed firearm can give rise to a reasonable suspicion of dangerousness. And so it is incumbent on me to consider whether the frisk in this case was justified in light not only of reasonable suspicion that Robinson was armed--insufficient by itself--but also of the surrounding circumstances. But like the magistrate judge who conducted Robinson’s suppression hearing, I do not believe that either of the factors cited by the government and the majority--Robinson’s presence in a high-crime neighborhood or his “evasive response” when asked if he had a gun--is probative of dangerousness in the context of this case. Taking all of the circumstances together, I see no “particularized and objective basis” for believing that Robinson was dangerous as well as armed. 
    The suppression hearing in this case was conducted by a magistrate judge, who heard testimony from all of the officers involved in the events leading up to Robinson’s frisk. In recommending suppression, the magistrate judge evaluated the full circumstances surrounding Robinson’s frisk, including both the “high-crime” status of the apartment complex next to the 7–Eleven at which Robinson was seen loading his weapon and Robinson’s conduct during the traffic stop. According to the Magistrate Judge, the testimony at the hearing indicated that Robinson was fully cooperative with the police, who perceived no “furtive gestures” or movements suggesting an intent to reach for a weapon. And based on all of the evidence before him, the Magistrate Judge concluded that the government had failed to “articulate any specific fact, other than [Robinson’s] possession of a firearm in a high-crime neighborhood, a legal activity in the state of West Virginia, which would justify the officer’s suspicion that [Robinson] was dangerous.”
    The district court, of course, rejected the Magistrate Judge’s report and recommendation and denied the suppression motion. But because the district court did not conduct a second hearing, this case must be decided on the record created before the magistrate judge. And on that record, I see no reason for second-guessing the magistrate judge’s determination that the government’s witnesses “testified to no objective and particularized facts demonstrating that [Robinson] was dangerous at the time of the traffic stop.” 
     It is true, as the magistrate judge carefully reviewed, that police officers provided testimony that an apartment complex adjacent to the 7–Eleven at issue is considered a high-crime area and that crime from that complex often “spilled over” into the 7–Eleven parking lot where Robinson was seen, as evidenced by shoplifting, thefts, and drug-trafficking activities. And it is clear, as the magistrate judge recognized, that presence in a high-crime area may contribute to a finding of reasonable suspicion. 
   But as our cases have indicated, the relative significance of a high-crime area, like other reasonable suspicion factors, is context-specific. In some cases, for instance, we have sustained a Terry frisk because it occurred in a high-crime area late at night. In Black, however, we rejected a position substantially the same as the government’s here: that even if public gun possession alone does not justify a Terry stop where the law permits the open carry of firearms, gun possession in a high-crime area would be sufficiently “suspicious” to do so. . . . Whether or not a high-crime environment might make other ambiguous conduct--for instance, fleeing from a police officer,--more likely to be criminal or dangerous, it sheds no light on the likelihood that an individual’s presumptively legal gun possession poses a danger to the police. That is because where public gun possession is permitted, high-crime areas are exactly the setting in which we should most expect to see law-abiding citizens carrying guns; there. Presence in a high-crime area, in other words, is as likely an explanation for innocent and nondangerous gun possession as it is an indication that gun possession is illegal or dangerous, and it does nothing to help the police tell the difference.
     As discussed above, in states allowing the public possession of weapons, authorizing a Terry pat down whenever there is reasonable suspicion that a person is armed, and in connection with a stop for any minor violation, would give the police unchecked discretion in deciding which armed citizens to frisk. Allowing such automatic frisks only in high-crime areas would do nothing to address that concern. Instead, it would guarantee that the costs of such intrusions are borne disproportionately by the racial minorities and less affluent individuals who today are most likely to live and work in neighborhoods classified as high crime. Given the lack of probative value associated with a high-crime area when it comes to gun possession, there is no justification for adopting such a rule. “The new constitutional and statutory rights for individuals to bear arms at home and in public apply to all,” and “[t]he courts have an obligation to protect those rights” in neighborhoods labeled “bad” as well as “good.” 
   Apart from the high-crime neighborhood, the majority, like the government, puts primary reliance on Robinson’s “evasive response” when asked by Captain Roberts whether he was carrying a firearm. But according to the officers’ testimony, Robinson was cooperative throughout his encounter with the police and never made any inconsistent statements indicating nervousness. And the magistrate judge found--without dispute by the district court--that Captain Roberts’s inquiry to Robinson came virtually simultaneously with the frisk itself:
   Roberts “asked [Robinson] if he had any firearms on his person as [Robinson] was exiting the vehicle,” and upon perceiving a “weird look,” ordered Robinson to place his hands on top of the car and conducted the frisk. Even construing this evidence in the light most favorable to the government, there was a very limited time window during which Robinson could have responded before the frisk made the question moot, and his failure to interject an answer immediately did not provide an objective indication that he was about to abandon his cooperative posture and become dangerous.https://casetext.com/case/united-states-v-robinson-630 - idm140581654551072 
    The majority appears also to credit the “weirdness” of Robinson’s look, as understood by Captain Roberts, as indicative of evasiveness or perhaps dangerousness itself. On this point, I must agree with the magistrate judge: Captain Roberts’s perception that through his look Robinson actually was saying, “[O]h, crap,” “I don’t want to lie to you, but I’m not going to tell you anything,” is sufficiently subjective that it cannot constitute an objective or articulable factor supporting reasonable suspicion of anything.

     That is particularly so given that West Virginia does not require that people carrying firearms inform the police of their guns during traffic or other stops, even if asked. Where a state has decided that gun owners have a right to carry concealed weapons without so informing the police, gun owners should not be subjected to frisks because they stand on their rights. (“Impropriety” of officer’s demand to see permit for gun being brandished in public is “particularly acute” where state has not only legalized open carry of firearms but also “does not require gun owners to produce or even carry their licenses for inquiring officers.”) Under a different legal regime, different inferences could be drawn from a failure to answer an officer’s question about a gun. But I do not think we may presume dangerousness from a failure to waive--quickly enough--a state-conferred right to conceal a weapon during a police encounter.
     Again, I recognize that expanded rights to openly carry or conceal guns in public will engender genuine safety concerns on the part of police officers, as well as other citizens, who more often will find themselves confronting individuals who may be armed. But where a sovereign state has made the judgment that its citizens safely may arm themselves in public, I do not believe we may presume that public gun possession gives rise to a reasonable suspicion of dangerousness, no matter what the neighborhood. And because the rest of the circumstances surrounding this otherwise unremarkable traffic stop do not add appreciably to the reasonable suspicion calculus, I must conclude that the police were without authority to frisk Robinson under Terry’s “armed and dangerous” standard. Accordingly, I dissent.

You Decide 4.5
State v. Miglavs, 90 P.3d 601 (Ore. 2004).
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=b992bbc7-4b4b-4ac4-9ffd-5905ad654f0a&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4CF3-DT30-0039-4499-00000-00&pdcontentcomponentid=9284&pddoctitle=State+v.+Miglavs%2C+337+Ore.+1%2C+90+P.3d+607+(Or.+2004)&ecomp=Lg85k&prid=d4e5c99b-941e-401c-8296-a103929d2aa1The issue in this criminal case is whether a police officer was lawfully engaged in a lawful search under the officer safety rule.
Defendant was charged with two counts of unlawful possession of a firearm based on evidence uncovered during a pat down (the pat down at issue here) conducted in August 1999. Defendant moved to suppress the evidence that the police discovered during that pat down. Following an evidentiary hearing, the trial court denied defendant’s motion to suppress that evidence.
   The same indictment also charged defendant with two other counts of unlawful possession of a firearm as a result of evidence uncovered in a pat down that the police conducted in September 1999. Defendant moved to suppress the evidence obtained as a result of that pat down, and the trial court granted that motion.
   Finally, the police executed a search warrant  at defendant’s residence in December 1999 and seized evidence that led to defendant being charged separately with seven other weapon and drug-related crimes. Defendant moved to suppress that evidence as well, and the trial court denied that motion.
   The court consolidated all charges and tried them at the same time. Defendant ultimately was convicted of two counts of unlawful possession of a firearm seized as a result of the August pat down and three counts of unlawful possession of a firearm seized during the December search of defendant’s residence.
     https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=b992bbc7-4b4b-4ac4-9ffd-5905ad654f0a&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4CF3-DT30-0039-4499-00000-00&pdcontentcomponentid=9284&pddoctitle=State+v.+Miglavs%2C+337+Ore.+1%2C+90+P.3d+607+(Or.+2004)&ecomp=Lg85k&prid=d4e5c99b-941e-401c-8296-a103929d2aa1Defendant appealed, contending that the police had relied on the evidence that they discovered during the August pat down to obtain the search warrant that led to the discovery of the evidence seized during the December search of defendant’s residence. A divided en banc Court of Appeals affirmed the trial court’s rulings denying defendant’s motions to suppress evidence discovered during the August pat down and the December search of his residence. 
   We take the following facts from the Court of Appeals majority opinion: 
Just after midnight in August 1999, Officer Brown, who was on patrol alone, saw defendant and another man standing outside a car, talking to a woman seated in the car, in the parking lot of an apartment complex in Beaverton. They were below an apartment overhang, which caused the area to be fairly dark. Because Brown suspected that all three individuals were under 18 years of age and possibly violating curfew, she approached the group. On approaching, she saw alcohol in the car. She asked for identification so that she could determine if any alcohol-related or curfew violations may have occurred. Defendant and the woman in the car gave Brown their identification, which she kept while she ran a records check on them. The other male said that he was 17 years old and gave his name and date of birth in lieu of other identification. The dispatcher reported that defendant was a possible runaway, but defendant told the officer that he had recently turned 18. He also told the officer that he lived in the apartment complex,  even though his identification listed a different address. He was unwilling to tell the officer in which apartment he resided.
Because she was on patrol alone, Brown called for backup while she was checking the ages and identities of the three individuals. Two backup officers arrived within a couple of minutes. By the time they arrived, Brown had determined  that the driver of the car was 21 years old and therefore lawfully in possession of alcohol. She also had determined that defendant was 18 years old and therefore not violating curfew. Brown returned defendant’s and the driver’s identification to them, making no overture to cite or hold them. They were then free to go, but Brown did not expressly tell them that. They remained while Brown continued her investigation of the 17-year-old for a possible curfew violation.
At that point, Brown was concerned for her personal safety and that of the backup officers. Defendant and his male companion were wearing distinctive clothing commonly associated with a gang called the “18th Street” gang. Typical of that gang, defendant had a shaved head and was wearing baggy tan pants and a baggy black shirt with the term “18th Street” printed on the back in large white letters. Defendant’s companion also was wearing baggy gang-style clothes and had a three-dot tattoo under his eye that is associated with gang membership. The baggy style of the clothing concerned Brown because, in addition to signaling gang affiliation, the clothing permitted easy concealment of a weapon. Within the preceding year, Brown had come into contact with a similarly attired gang member in the parking lot of the same apartment complex who, on a pat down search, was found to have a weapon concealed in his waistband under his baggy clothing. Also, based on her training and experience more generally, Brown knew that members of the 18th Street gang commonly carry weapons--in particular, guns.
“One of the backup officers, Officer Cockreham, shared Brown’s safety concerns. His concerns arose because of defendant’s 18th Street gang-affiliated clothing, as well as the way in which defendant’s shirt was draped over his waist. Cockreham had personally removed weapons from several 18th Street gang members in the same general area (i.e., along Allen Boulevard between Hall and King); one such encounter occurred ‘just previously to this incident’ and the weapon  he found on the gang member was a gun. Brown directed Cockreham to pat down defendant for weapons. On doing so, Cockreham found a gun concealed in the waistband of defendant’s pants.” 
In affirming the trial court’s rulings denying defendant’s motion to suppress the gun, the Court of Appeals majority relied on this court’s earlier decision in Bates. There, this court held that 
    Article I, section 9 of the Oregon Constitution does not forbid an officer to take reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present. 
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=b992bbc7-4b4b-4ac4-9ffd-5905ad654f0a&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4CF3-DT30-0039-4499-00000-00&pdcontentcomponentid=9284&pddoctitle=State+v.+Miglavs%2C+337+Ore.+1%2C+90+P.3d+607+(Or.+2004)&ecomp=Lg85k&prid=d4e5c99b-941e-401c-8296-a103929d2aa1The Court of Appeals majority began its analysis by characterizing the basis for the officers’ particularized suspicion of defendant: 
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=b992bbc7-4b4b-4ac4-9ffd-5905ad654f0a&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4CF3-DT30-0039-4499-00000-00&pdcontentcomponentid=9284&pddoctitle=State+v.+Miglavs%2C+337+Ore.+1%2C+90+P.3d+607+(Or.+2004)&ecomp=Lg85k&prid=d4e5c99b-941e-401c-8296-a103929d2aa1“The officers’ safety concerns here were not stereotypical in the sense that they derived only from a generalized and oversimplified view of how all members of a broad group  behave in all circumstances. Rather, Brown and Cockreham had particular training in and experience with members of a particular gang--the 18th Street gang--and its local activities. The officers, based on training and experience relating to that particular gang, knew that its local members commonly carried concealed weapons. They knew, moreover, that guns were often the weapon of choice for members of the 18th Street gang.” 
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=b992bbc7-4b4b-4ac4-9ffd-5905ad654f0a&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4CF3-DT30-0039-4499-00000-00&pdcontentcomponentid=9284&pddoctitle=State+v.+Miglavs%2C+337+Ore.+1%2C+90+P.3d+607+(Or.+2004)&ecomp=Lg85k&prid=d4e5c99b-941e-401c-8296-a103929d2aa1The court concluded that several factors contributed to the officers’ reasonable fear for their safety: 
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=b992bbc7-4b4b-4ac4-9ffd-5905ad654f0a&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4CF3-DT30-0039-4499-00000-00&pdcontentcomponentid=9284&pddoctitle=State+v.+Miglavs%2C+337+Ore.+1%2C+90+P.3d+607+(Or.+2004)&ecomp=Lg85k&prid=d4e5c99b-941e-401c-8296-a103929d2aa1“On whole, then, we have this: Defendant was a likely member of not just an urban gang but of a particular gang known to operate in the area--the 18th Street gang--whose local members commonly carry guns, he was wearing clothes that could have concealed a gun, the officers had both longer term and very recent experience with members of the 18th Street gang in the area who were armed with concealed weapons, it was late, it was dark, and defendant chose to protract the encounter with the officers. The totality of what the officers knew and the circumstances with which they were confronted went beyond a generalized understanding of the practices of urban gangs and encompassed a specific and particularized reality as to defendant and the 18th Street gang, of which defendant was a likely member.”
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=b992bbc7-4b4b-4ac4-9ffd-5905ad654f0a&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4CF3-DT30-0039-4499-00000-00&pdcontentcomponentid=9284&pddoctitle=State+v.+Miglavs%2C+337+Ore.+1%2C+90+P.3d+607+(Or.+2004)&ecomp=Lg85k&prid=d4e5c99b-941e-401c-8296-a103929d2aa1The court thus affirmed defendant’s convictions.
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=b992bbc7-4b4b-4ac4-9ffd-5905ad654f0a&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4CF3-DT30-0039-4499-00000-00&pdcontentcomponentid=9284&pddoctitle=State+v.+Miglavs%2C+337+Ore.+1%2C+90+P.3d+607+(Or.+2004)&ecomp=Lg85k&prid=d4e5c99b-941e-401c-8296-a103929d2aa1Judge Haselton agreed with the majority but wrote separately to clarify that the court’s decision did “not authorize ‘officer safety’ searches based solely on a citizen’s ‘suspicious’ appearance or possible association with a potentially dangerous group.” He further explained that “our holding does not write a blank check for ‘officer safety’ pat downs resulting from officer-initiated contacts with young men or women wearing ‘gang-style’ clothing.”
Judge Edmonds and Judge Armstrong dissented in separate opinions. Judge Edmonds asserted that the constitutional right to associate requires that the constitutional protections against unreasonable searches and seizures apply equally to “those who belong to gangs, wear baggy gang-related clothing, or identify with groups known to  be violent” as they do to others. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=b992bbc7-4b4b-4ac4-9ffd-5905ad654f0a&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4CF3-DT30-0039-4499-00000-00&pdcontentcomponentid=9284&pddoctitle=State+v.+Miglavs%2C+337+Ore.+1%2C+90+P.3d+607+(Or.+2004)&ecomp=Lg85k&prid=d4e5c99b-941e-401c-8296-a103929d2aa1He opined that defendant’s decision to remain at the scene after Brown concluded her investigation of him was the only fact that could have contributed to her concern that defendant might pose an immediate threat to her safety or that of others. But that fact, Judge Edmonds asserted, was of little significance in light of defendant’s cooperative attitude and the fact that Brown did not tell him that he was free to leave. Judge Edmonds further posited that Brown’s failure to direct defendant to leave indicated that she did not perceive defendant to be a greater threat at the end of the investigation than she had at the beginning. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=b992bbc7-4b4b-4ac4-9ffd-5905ad654f0a&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4CF3-DT30-0039-4499-00000-00&pdcontentcomponentid=9284&pddoctitle=State+v.+Miglavs%2C+337+Ore.+1%2C+90+P.3d+607+(Or.+2004)&ecomp=Lg85k&prid=d4e5c99b-941e-401c-8296-a103929d2aa1According to Judge Edmonds, the majority’s decision would permit the police to pat down “any person dressed in gang attire and present in a mall or other public place * * * even in the absence of individualized suspicion[,]” contrary to Article I, section 9, of the Oregon Constitution.
Judge Armstrong similarly believed that the officers’ knowledge that defendant was a member of the 18th Street gang, and their prior experiences with that gang, were not “sufficient to give the officers a reasonable basis to believe that defendant was a member of the 18th Street gang who, because of that membership, was reasonably likely to be carrying a gun.” He also could not discern a difference between the officers’ knowledge that defendant was a member of a particular gang that was known to carry guns and their knowledge that members of a particular type of gang carry guns. “In either case” Judge Armstrong observed, “the state seeks to rely on a syllogism that people of a particular group often carry weapons, that the defendant appears to be a member of that group, and that it is therefore reasonable to suspect that the defendant is carrying a weapon.” https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=b992bbc7-4b4b-4ac4-9ffd-5905ad654f0a&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4CF3-DT30-0039-4499-00000-00&pdcontentcomponentid=9284&pddoctitle=State+v.+Miglavs%2C+337+Ore.+1%2C+90+P.3d+607+(Or.+2004)&ecomp=Lg85k&prid=d4e5c99b-941e-401c-8296-a103929d2aa1He noted further, as did Judge Edmonds, that Brown did not have a reason to fear for her safety because defendant was cooperative and because Brown had not waited for the backup  officers to arrive to conduct her investigation of the three individuals. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=b992bbc7-4b4b-4ac4-9ffd-5905ad654f0a&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4CF3-DT30-0039-4499-00000-00&pdcontentcomponentid=9284&pddoctitle=State+v.+Miglavs%2C+337+Ore.+1%2C+90+P.3d+607+(Or.+2004)&ecomp=Lg85k&prid=d4e5c99b-941e-401c-8296-a103929d2aa1In Judge Armstrong’s view, defendant’s failure to leave when Brown returned defendant’s identification was of no significance because Brown should have understood that defendant merely wished to resume his encounter with his friends. 
   In this court, defendant relies on the dissenting opinions by Judge Edmonds and Judge Armstrong and argues that the Court of Appeals majority erred in its application of the Bates rule because Brown did not have a particularized suspicion that defendant was armed and might pose a threat to the officers’ safety. He observes that, when Brown had concluded her investigation of defendant, she did not tell him that he was free to leave, from which he argues that his failure to leave should not have contributed to Brown’s safety concerns. He notes further that he was “cooperative and unthreatening” and, thus, should not have made the officers feel that he presented an immediate risk to their safety.
The state responds that this court needs to decide only whether  “the officers’ belief that defendant might be armed and dangerous [was] a reasonable one.” In its view, “the officers reasonably believed that this defendant might pose an immediate threat primarily because he had expressly affiliated himself with a particular gang, the local members of which operate in the immediate vicinity and, in the officers’ training and experience, often are armed.” Further, the state argues, “that suspicion was sufficiently particularized because it was based on characteristics shared by a narrow and well-defined category of persons with whom the officers had specific experiences and about whom the officers had received training.” For the reasons that follow, we agree with the state.
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=b992bbc7-4b4b-4ac4-9ffd-5905ad654f0a&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4CF3-DT30-0039-4499-00000-00&pdcontentcomponentid=9284&pddoctitle=State+v.+Miglavs%2C+337+Ore.+1%2C+90+P.3d+607+(Or.+2004)&ecomp=Lg85k&prid=d4e5c99b-941e-401c-8296-a103929d2aa1We begin with a review of Bates. In that case, a City of Eugene police officer stopped the defendant for “excessive vehicle emissions” at 4:40 a.m. The stop occurred in a “high-crime” area and the officer called for assistance. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=b992bbc7-4b4b-4ac4-9ffd-5905ad654f0a&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4CF3-DT30-0039-4499-00000-00&pdcontentcomponentid=9284&pddoctitle=State+v.+Miglavs%2C+337+Ore.+1%2C+90+P.3d+607+(Or.+2004)&ecomp=Lg85k&prid=d4e5c99b-941e-401c-8296-a103929d2aa1Id. Two officers approached the defendant’s vehicle and one officer asked for the defendant’s driver license. The officers noticed that there was a “television and a videocassette recorder [VCR]” on the back seat  of the defendant’s vehicle. Id. One officer also noticed “an object on the floorboard between [the] defendant's feet.” The other officer also took note of the object and “asked [the defendant] if he would reach down and very cautiously pull that item from between his feet,” so that the officer could see what it was. The defendant refused and instead “reached under the seat and remained in that position” while the officer repeatedly asked him to pull the item into plain view. The officer then pulled his gun and ordered the defendant to step out of the car. The officer then obtained the bag from under the seat, felt something hard inside, opened it, and discovered “several rounds of live ammunition, drugs, and drug paraphernalia.” 
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=b992bbc7-4b4b-4ac4-9ffd-5905ad654f0a&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4CF3-DT30-0039-4499-00000-00&pdcontentcomponentid=9284&pddoctitle=State+v.+Miglavs%2C+337+Ore.+1%2C+90+P.3d+607+(Or.+2004)&ecomp=Lg85k&prid=d4e5c99b-941e-401c-8296-a103929d2aa1The court began its analysis by noting the state’s reliance on the Supreme Court’s analysis of officer safety searches in, and this court’s own previous analysis in State v. Riley, in which the court had acknowledged that “police officers are entitled to take steps   reasonably necessary to their safety.” The court then held, as set out above, that Article I, section 9 of the Oregon Constitution “does not forbid an officer to take reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion” that the suspect “might pose” a danger to the officer or others. The court explained that 
“it is not [this court’s] function to uncharitably second-guess an officer’s judgment. A police officer in the field frequently must make life-or-death decisions in a matter of seconds. There may be little or no time in which to weigh the magnitude of a potential safety risk against the intrusiveness of protective measures. An officer must be allowed considerable latitude to take safety precautions  in such situations. Our inquiry therefore is limited to whether the precautions taken were reasonable under the circumstances as they reasonably appeared  at the time that the decision was made.” 
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=b992bbc7-4b4b-4ac4-9ffd-5905ad654f0a&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4CF3-DT30-0039-4499-00000-00&pdcontentcomponentid=9284&pddoctitle=State+v.+Miglavs%2C+337+Ore.+1%2C+90+P.3d+607+(Or.+2004)&ecomp=Lg85k&prid=d4e5c99b-941e-401c-8296-a103929d2aa1The Bates court concluded, however, that the officers had exceeded the permissible bounds of the rule. It reached that result by assessing the significance of each factor that the officer identified as contributing to his conclusion that the defendant posed an immediate threat. Id. The officer testified that the vehicle’s out-of-state license plates, the time of day, the high-crime area, the defendant’s appearance, the fact that there was a television and a VCR on the back seat of the defendant’s vehicle, and the fact that the defendant did not comply with the officer’s instruction to pull into plain view the item that he could not see fully, all contributed to his concern about the defendant’s possible dangerousness.
This court, however, concluded that none of the identified factors, even when considered collectively, supported a reasonable suspicion that the defendant posed an immediate threat to the officers’ safety. The court observed that the suspicions of the officer who ordered the defendant out of the car may have been an excellent guess--the kind resulting from a sixth  sense that many officers develop over the years. But, again, there is no objective quality to them that  entitles them to any weight, either individually or collectively, in the constitutional calculus. Neither the hour nor the “high-crime” nature of the area tells us whether this defendant is likely to be a criminal, unless there is some reason to think that everyone driving in that particular area at that time of night is up to no good[.]https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=b992bbc7-4b4b-4ac4-9ffd-5905ad654f0a&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4CF3-DT30-0039-4499-00000-00&pdcontentcomponentid=9284&pddoctitle=State+v.+Miglavs%2C+337+Ore.+1%2C+90+P.3d+607+(Or.+2004)&ecomp=Lg85k&prid=d4e5c99b-941e-401c-8296-a103929d2aa1 As in Bates, our inquiry in this case is limited to whether the precautionary pat down was reasonable under the circumstances as they reasonably appeared at that time.
Here, the officers testified that the following factors contributed to their determination that defendant might pose an immediate threat to their safety: (1) defendant “was wearing baggy tan pants and a black baggy shirt that had ‘18th’ written on the back of the shirt in large white letters[,]”which the officers associated with the attire of 18th Street gang members; (2) the young man with defendant also had a gang-related tattoo consisting of three dots in the shape of a triangle that Officer Brown knew  meant “mi vida loca” or “‘my crazy life’ in English” and his shirt also had the number 18 on it; (3) both defendant and the man with him were wearing, “untucked[,]” “extremely bagg[y clothing that] could easily conceal weapons”; (4) the officers knew that 18th Street gang members operated in the vicinity of the encounter and that they carried guns; (5) Officer Cockreham personally removed weapons from several 18th Street gang members and had, just previously to this incident, had removed a gun from an 18th Street gang member; and (6) neither defendant nor the woman in the car chose to leave after Brown returned their identification.
Before evaluating the factors described above, we first address defendant's argument that his cooperative attitude and lack of suspicious behavior was sufficient to dispel any concerns that the officers had for their safety. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=b992bbc7-4b4b-4ac4-9ffd-5905ad654f0a&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4CF3-DT30-0039-4499-00000-00&pdcontentcomponentid=9284&pddoctitle=State+v.+Miglavs%2C+337+Ore.+1%2C+90+P.3d+607+(Or.+2004)&ecomp=Lg85k&prid=d4e5c99b-941e-401c-8296-a103929d2aa1Defendant is correct that those circumstances must be considered  in the overall assessment of the reasonableness of the officers' decision to engage in the pat down. However, defendant's attitude and demeanor are just two circumstances that the officers  and, ultimately, this court must consider in determining whether the totality of the circumstances justified the decision to engage in a precautionary pat down. (“Totality of the circumstances” is considered in determining whether officer’s suspicion was reasonable). As we now explain, those countervailing circumstances, considered in light of the totality of the circumstances, are not sufficient to dispel the reasonableness of the officers’ particularized suspicion that defendant might have posed a danger to their safety.
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=b992bbc7-4b4b-4ac4-9ffd-5905ad654f0a&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4CF3-DT30-0039-4499-00000-00&pdcontentcomponentid=9284&pddoctitle=State+v.+Miglavs%2C+337+Ore.+1%2C+90+P.3d+607+(Or.+2004)&ecomp=Lg85k&prid=d4e5c99b-941e-401c-8296-a103929d2aa1Under Bates, a limited precautionary pat down is authorized under Article, 1, section 9, only when the initial contact between the police and the individual is lawful. Here, defendant concedes that Brown was engaged in a lawful contact with defendant. Brown had approached the vehicle to investigate possible curfew, and later, alcohol violations. She requested defendant's identification and, upon concluding  her investigation, promptly returned defendant’s identification to him. In other words, as noted previously, the police contact was not initiated solely (or at all) because defendant and his companion were wearing gang attire.
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=b992bbc7-4b4b-4ac4-9ffd-5905ad654f0a&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4CF3-DT30-0039-4499-00000-00&pdcontentcomponentid=9284&pddoctitle=State+v.+Miglavs%2C+337+Ore.+1%2C+90+P.3d+607+(Or.+2004)&ecomp=Lg85k&prid=d4e5c99b-941e-401c-8296-a103929d2aa1Next, Bates requires an evaluation whether the factors that the officers claim supported their belief that defendant might pose an immediate threat to their safety are sufficiently particularized to defendant as required under Article 1, section 9. This court repeatedly has explained that a person’s appearance alone never can support a reasonable suspicion of unlawful activity (explaining that “shined shoes, sharp clothes, neat ‘Afro’ haircuts and people who stand and stare at officers” cannot say much about those people engaging in criminal activity); (explaining that fact that defendant was “an ‘Indian’ with long hair and beard” wearing black leather jacket could not support reasonable suspicion to believe that he was dangerous). https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=b992bbc7-4b4b-4ac4-9ffd-5905ad654f0a&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4CF3-DT30-0039-4499-00000-00&pdcontentcomponentid=9284&pddoctitle=State+v.+Miglavs%2C+337+Ore.+1%2C+90+P.3d+607+(Or.+2004)&ecomp=Lg85k&prid=d4e5c99b-941e-401c-8296-a103929d2aa1A police officer’s suspicion must be particularized to the individual based on the individual’s own conduct. Regardless of the officers’ belief that gang members wear baggy clothing, that type of clothing alone could not support a reasonable suspicion that defendant posed a risk to the officers’ safety. That is, nothing about such attire alone could tell the officers anything about defendant except that he liked to wear baggy clothing. Nevertheless, a particular style of attire may be a circumstance that, when considered in the overall context or totality of the circumstances of a police–citizen contact, contributes to the reasonableness of an officer’s safety assessment.
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=b992bbc7-4b4b-4ac4-9ffd-5905ad654f0a&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4CF3-DT30-0039-4499-00000-00&pdcontentcomponentid=9284&pddoctitle=State+v.+Miglavs%2C+337+Ore.+1%2C+90+P.3d+607+(Or.+2004)&ecomp=Lg85k&prid=d4e5c99b-941e-401c-8296-a103929d2aa1Similarly, clothing that announces a gang affiliation does not, by itself, give rise to the kind of individualized suspicion of a safety threat required under Article 1, section 9. However, officers reasonably may draw inferences about human behavior from their training and experience. (in officer’s experience, people who commit robberies often are armed); (in officer’s experience, drug users often are armed). In this instance, the officers knew from training  and recent personal experience that the gang identified on defendant’s shirt operated in the immediate vicinity of the contact and that members of that gang carried weapons. Furthermore, one of the officers recently had removed a gun from one of the members of that gang. Under those circumstances, the officers’ safety concerns regarding defendant were not based solely on generalized or stereotypical information about gang behavior but, instead, were sufficiently particularized, based on specific training about and recent personal experience with a narrowly identified group, viz., members of the local gang to which defendant and his male companion proclaimed their allegiance and which operated in the area where the officers encountered defendant.
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=b992bbc7-4b4b-4ac4-9ffd-5905ad654f0a&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4CF3-DT30-0039-4499-00000-00&pdcontentcomponentid=9284&pddoctitle=State+v.+Miglavs%2C+337+Ore.+1%2C+90+P.3d+607+(Or.+2004)&ecomp=Lg85k&prid=d4e5c99b-941e-401c-8296-a103929d2aa1Finally, in addition to defendant’s self-proclaimed gang membership and the officers’ training and recent experience with other gang members, there are other factors that contribute to the reasonableness of the officers’ safety concerns. First, the contact with defendant and his two companions occurred at a late hour in a darkened area in the general vicinity where one of the officers recently had encountered armed members of the 18th  Street gang. Defendant was uncooperative during the initial investigation when he refused to reveal the location of his residence in the apartment complex. (Refusal to leave  purse-like bag in vehicle when requested to do so was one factor that heightened officer’s safety concern.)
 Second, although defendant was free to move from the immediate area after his identification was returned to him, he chose to remain in the area near where the police were conducting an ongoing investigation. When defendant remained in that close proximity to the officers, the officers’ safety concerns reasonably were heightened because the officers needed to focus their attention on defendant’s companion and were not able to watch defendant as closely as they could before that time. As this court explained in Bates: 
“A police officer in the field frequently must make life-or-death decisions in a matter of seconds. There may be little or no time in which to weigh the magnitude of a potential safety risk against the intrusiveness of protective measures. An officer must be allowed considerable latitude to take safety precautions in such situations.” 
Here, the combination of factors that the officers identified were sufficient to give rise to a reasonable and individualized suspicion that defendant might have posed a safety threat to them. That individualized suspicion justified the limited precautionary pat down of defendant that occurred in this case and did not violate defendant’s protection against unreasonable search and seizure under Article I, section 9, of the Oregon Constitution. 
The decision of the Court of Appeals and the judgment of the circuit court are affirmed. 

You Decide 4.6
State v. Ford, 565 N.W.2d 286 (Wis. Ct. App. 1997).
At 10:50 p.m., on July 20, 1995, Beloit police received an anonymous telephone tip that “four or five Black males,” not otherwise described, were selling drugs to motorists at a certain intersection. Two officers arrived at the location about 30 min later and saw Ford and three other Black males seated on the hood of a car about 75–100 ft. from the intersection. One of the officers approached Ford, whom he knew, and as he did so, the officer smelled marijuana. He told Ford that he “smelled like marijuana.” The officer then ordered Ford off the car, had him place his hands on the hood, and began patting him down. He did the pat down because he was investigating possible drug trafficking, he smelled marijuana, and it is his routine practice to conduct pat downs during street interrogations for safety reasons. During the initial pat down, the officer felt a large square wad of soft material in Ford’s front pants pocket. When asked what it was, Ford said that it was money.3 Ford became “jumpy” whenever the officer’s hands approached the front of Ford’s waist, and Ford even grabbed the officer’s hand as it approached that area. Since Ford was not cooperating with the pat down and gave the impression that he intended to run, the officer took Ford in a “full Nelson” hold to his squad car, where he placed Ford’s hands behind his back and handcuffed him.
Upon resuming the pat down, Ford was still “jumpy” whenever the officer approached the waistband of his boxer shorts, which was visible above Ford’s jeans. The officer testified that it was a “common place for people to put guns and other contraband[,] down the front of their shorts.” Although he had not felt a weapon or contraband, the officer asked Ford if he could look inside Ford’s shorts. In response, Ford took a step back, whereupon the officer pulled out the waistband about one and one-half inches and shined a flashlight into Ford’s underwear. The officer discovered two plastic bags of marijuana wedged between Ford’s thigh and genitals. The officer removed the bags of marijuana and arrested Ford for possession of a controlled substance.
Ford does not contend that either the investigatory stop or the initial pat down frisk were unreasonable. The State, in turn, acknowledges that the officer’s actions in pulling out the waistband of Ford’s boxer shorts and shining a flashlight into them exceeded the scope of a Terry frisk. The record supports both concessions. Thus, the only issue in this case is whether the officer’s search can be justified on the basis that the officer had probable cause, under all of the facts and circumstances known to him, to conduct a more intrusive search of Ford’s person.
The State would have us uphold the search because “the totality of the circumstances which gradually emerged . . . created reasonable suspicion, and then probable cause, to believe that Ford had a weapon or contraband concealed in his underwear.” In support of its argument, the State points to the officer having smelled marijuana on approaching Ford, and the fact that Ford was “jumpy” and attempted to evade a search of his waist area when the officer’s hand approached Ford’s waistband. We do not dispute that, under certain circumstances, matters discovered during a pat down frisk permit a reasonable suspicion to ripen into probable cause that a crime has been or is being committed. The Supreme Court has recognized the “plain feel” or “plain touch” doctrine: When an officer touches or feels an object during a pat down which his or her training and experience lead the officer to believe may be contraband, the officer is justified in retrieving the item. The rationale for the doctrine, however, is that the object is in the “plain view” of the officer’s lawful touch, and thus no “search” has occurred, but only a seizure of evidence of criminal activity plainly sensed by the officer. Here, however, the officer felt nothing resembling a weapon or contraband while frisking Ford. The plastic bags of marijuana subsequently found in Ford’s underwear were not in the “plain view” of the officer’s touch. The items were only discovered by a search of Ford’s underwear based on the officer’s belief that there might be a weapon or contraband concealed in the boxer shorts. Thus, the “plain feel” or “plain touch” doctrine is not available to the State in this case.
Clearly, the purpose of the search here was a pat down frisk for weapons before the officers placed Swanson in the squad car to perform a field sobriety test. The nature and scope of the search extended beyond that of self-protection. The Terry doctrine precludes reaching into a suspect’s pockets during a frisk for weapons unless the officer feels an object that could be used as a weapon. Neither the officers nor the State argue in this case that the plastic bag of marijuana felt like a weapon that could have been used as an effective weapon. Therefore, the officer had no reason to reach into Swanson’s pocket to obtain the marijuana. The search here exceeded its permissible scope and thus was constitutionally unreasonable. It follows then, that the subsequent arrest of Swanson for possession of a controlled substance was invalid because the controlled substance was the fruit of an illegal search.
The purpose of the investigatory stop was to follow up on an anonymous tip regarding drug-selling activity in the vicinity. No specific suspicion had yet focused on Ford, except that he was near the intersection in question with a number of companions. And, while the officer testified to “smelling marijuana” when he approached Ford and the others, the testimony is unclear as to whether the odor emanated specifically from Ford or from any particular place on his person. Ford’s “jumpiness” and evasive movements as the pat down approached the front of his waist are at best equivocal: We cannot say that a suspect’s seeming reluctance to have the front of his boxer shorts patted at or below the waist is the equivalent of an observed movement to conceal an object from an officer’s view.
Here, the “totality of the circumstances” prior to the search inside Ford’s underwear gave the investigating officer a reasonable suspicion that Ford may be engaged in criminal activity sufficient to justify temporary questioning and a pat down for weapons, but no more. The fact that the officer’s suspicion was confirmed by evidence found during the unauthorized search cannot be used after the fact to bootstrap that suspicion into probable cause for an arrest. Since the search of Ford’s person exceeded the scope of a Terry frisk and was not supported by the existence of probable cause justifying his arrest prior to the search, the evidence obtained from his person should have been suppressed. Accordingly, we reverse Ford’s conviction for possession of THC and remand for further proceedings consistent with this opinion.

Chapter 5: Probably Cause and Arrests
You Decide 5.1
Henry v. United States, 361 U.S. 98 (1959).
Petitioner stands convicted of unlawfully possessing three cartons of radios valued at more than $100 which had been stolen from an interstate shipment. There was a theft from an interstate shipment of whiskey at a terminal in Chicago. The next day, two FBI agents were in the neighborhood investigating it. They saw petitioner and one Pierotti walk across a street from a tavern and get into an automobile. The agents had been given, by the employer of Pierotti, information of an undisclosed nature “concerning the implication of the defendant Pierotti with interstate shipments.” But, so far as the record shows, he never went so far as to tell the agents he suspected Pierotti of any such thefts. The agents followed the car and saw it enter an alley and stop. Petitioner got out of the car, entered a gangway leading to residential premises, and returned in a few minutes with some cartons. He placed them in the car, and he and Pierotti drove off. The agents were unable to follow the car. But later they found it parked at the same place near the tavern. Shortly, they saw petitioner and Pierotti leave the tavern, get into the car, and drive off. The car stopped in the same alley as before; petitioner entered the same gangway and returned with more cartons. The agents observed this transaction from a distance of some 300 ft. and could not determine the size, number, or contents of the cartons. As the car drove off the agents followed it and finally, when they met it, waved it to a stop. As he got out of the car, petitioner was heard to say, “Hold it; it is the G’s.” This was followed by, “Tell him he [you] just picked me up.” The agents searched the car, placed the cartons (which bore the name “Admiral” and were addressed to an out-of-state company) in their car, took the merchandise and petitioner and Pierotti to their office and held them for about 2 hr when the agents learned that the cartons contained stolen radios. They then placed the men under formal arrest. The statutory authority of FBI officers and agents to make felony arrests without a warrant is restricted to offenses committed “in their presence” or to instances where they have “reasonable grounds to believe that the person to be arrested has committed or is committing” a felony. The statute states the constitutional standard, for it is the command of the Fourth Amendment that no warrants for either searches or arrests shall issue except “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The prosecution conceded below, and adheres to the concession here, that the arrest took place when the federal agents stopped the car. That is our view on the facts of this particular case. When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this case, was complete. It is, therefore, necessary to determine whether, at or before that time, they had reasonable cause to believe that a crime had been committed. The fact that afterward contraband was discovered is not enough. An arrest is not justified by what the subsequent search discloses.
It is true that a federal crime had been committed at a terminal in the neighborhood, whisky having been stolen from an interstate shipment. Petitioner’s friend, Pierotti, had been suspected of some implication in some interstate shipments, as we have said. But, as this record stands, what those shipments were and the manner in which he was implicated remain unexplained and undefined. The rumor about him is therefore practically meaningless. On the record, there was far from enough evidence against him to justify a magistrate in issuing a warrant. So far as the record shows, petitioner had not even been suspected of criminal activity prior to this time. Riding in the car, stopping in an alley, picking up packages, driving away--these were all acts that were outwardly innocent. Their movements in the car had no mark of fleeing men or men acting furtively. The case might be different if the packages had been taken from a terminal or from an interstate trucking platform. But they were not. As we have said, the alley where the packages were picked up was in a residential section. The fact that packages have been stolen does not make every man who carries a package subject to arrest, nor the package subject to seizure. The police must have reasonable grounds to believe that the particular package carried by the citizen is contraband. Its shape and design might at times be adequate. The weight of it and the manner in which it is carried might at times be enough. But there was nothing to indicate that the cartons here in issue probably contained liquor. The fact that they contained other contraband appeared only some hours after the arrest. What transpired at or after the time the car was stopped by the officers is, as we have said, irrelevant to the narrow issue before us. To repeat, an arrest is not justified by what the subsequent search discloses. Under our system, suspicion is not enough for an officer to lay hands on a citizen. It is better, so the Fourth Amendment teaches, that the guilty sometimes go free than that citizens be subject to easy arrest.

You Decide 5.2
Hedgepeth v. Metropolitan Area Transit Authority, 386 F.3d 1148 (D.C. App. 2004).
2No one is very happy about the events that led to this litigation. A 12-year-old girl was arrested, searched, and handcuffed. Her shoelaces were removed, and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained until released to her mother some 3 hr later--all for eating a single french fry in a Metrorail station. The child was frightened, embarrassed, and crying throughout the ordeal. The district court described the policies that led to her arrest as “foolish,” and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry. The question before us, however, is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution. Like the district court, we conclude that they did not, and accordingly we affirm. It was the start of another school year and the Washington Metropolitan Area Transit Authority (WMATA) was once again getting complaints about bad behavior by students using the Tenleytown/American University Metrorail station. In response WMATA embarked on a week-long undercover operation to enforce a “zero-tolerance” policy with respect to violations of certain ordinances, including one that makes it unlawful for any person to eat or drink in a Metrorail station. “Zero tolerance” had more fateful consequences for children than for adults. Adults who violate § 35-251(b) typically receive a citation subjecting them to a fine of $10–$50. District of Columbia law, however, does not provide for the issuance of citations for nontraffic offenses to those under 18 years of age. Instead, a minor who has committed what an officer has reasonable grounds to believe is a “delinquent act” “may be taken into custody.” Committing an offense under District of Columbia law, such as eating in a Metrorail station, constitutes a “delinquent act.” The upshot of all this is that zero-tolerance enforcement of § 35-251(b) entailed the arrest of every offending minor but not every offending adult. The undercover operation was in effect on October 23, 2000, when 12-year-old Ansche Hedgepeth and a classmate entered the Tenleytown/AU station on their way home from school, Ansche had stopped at a fast-food restaurant on the way and ordered a bag of french fries--to go. While waiting for her companion to purchase a fare-card, Ansche removed and ate a french fry from the take-out bag she was holding. After proceeding through the fare-gate, Ansche was stopped by a plainclothed Metro Transit Police officer, who identified himself and informed her that he was arresting her for eating in the Metrorail station. The officer then handcuffed Ansche behind her back while another officer searched her and her backpack. Pursuant to established procedure, her shoelaces were removed. Upset and crying, Ansche was transported to the District of Columbia’s Juvenile Processing Center some distance away, where she was fingerprinted and processed before being released into the custody of her mother 3 hr later. The no-citation policy was not, it turned out, carved in stone. The negative publicity surrounding Ansche’s arrest prompted WMATA to adopt a new policy effective January 31, 2001, allowing WMATA officers to issue citations to juveniles violating § 35-251(b). Zero tolerance was also not a policy for the ages. Effective May 8, 2001, WMATA adopted a new Written Warning Notice Program, under which juveniles eating in the Metro are neither arrested nor issued citations but instead given written warnings, with a letter notifying their parents and school. Only after the third infraction over the course of a year may a juvenile be formally prosecuted.
Ansche . . . challenges her arrest on the ground that it was an unreasonable seizure in violation of the Fourth Amendment. This claim quickly runs into the Supreme Court’s recent holding in Atwater. There, a woman challenged the constitutionality of her arrest for violating a state statute requiring all motorists and front-seat passengers to wear seat belts. As in this case, there was no dispute that the plaintiff had violated the statute in the presence of the arresting officer and that state law authorized her arrest, even though the offense was punishable by a fine no greater than $50. Unlike the present case, by statute the officer in Atwater had the option of issuing a citation instead of effecting an arrest. The Court in Atwater undertook a two-step inquiry in addressing the plaintiff’s argument that a warrantless arrest for a fine-only offense was unreasonable under the Fourth Amendment. It first concluded that Atwater’s argument that such arrests were not supported by the common law at the Founding, “while by no means insubstantial,” ultimately failed. The Court then declined the plaintiff’s invitation “to mint a new rule of constitutional law” based on a balancing of competing interests and an assessment according to “traditional standards of reasonableness.” Reasoning that “the standard of probable cause ‘applie[s] to all arrests, without the need to “balance” the interests and circumstances involved in particular situations’,” the Court concluded that “if an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” On the basis of this passage, the defendants argue that Ansche’s arrest does not violate the Fourth Amendment, for it is undisputed that the arresting officer had probable cause to believe Ansche had committed a criminal offense, however, minor. No balancing or inquiry into whether Ansche’s probable cause arrest was otherwise reasonable is permitted. Ansche reads Atwater quite differently. In her view, the Court’s analysis can only be understood in terms of the Court’s concern to avoid interfering with the discretion of police officers called upon to decide, “on the spur (and in the heat) of the moment,” whether to arrest or to issue a citation. The Court acknowledged that “if we were to derive a rule exclusively to address the uncontested facts of this case, Atwater might well prevail.” But because a rule allowing ad hoc reasonableness review of an arrest decision, even when there is probable cause, would hobble the officer’s discretion, the Court declined to engage in any inquiry beyond probable cause. The present case is different, Ansche reasons, because here there was no exercise of discretion by the arresting officer. The officer did not have the choice of issuing a citation; arrest was the only enforcement option. Inquiring into the reasonableness of the arrest would not intrude upon the officer’s discretion, and therefore Atwater should not preclude such an inquiry. Indeed, the Court’s comments about how it would view Atwater’s claims were it free to balance the competing interests strongly suggest that it would find the regime in this case constitutionally unreasonable.
Although this argument is a creative one, we are ultimately unpersuaded, and do not read Atwater as permitting us to engage in an evaluation of the reasonableness of the decision to arrest Ansche, given the existence of probable cause. It is certainly true that the Court in Atwater voiced concern that imposing Fourth Amendment reasonableness standards above and beyond probable cause would unduly intrude upon “discretionary judgment in the field” and interfere with “an officer on the street” called to act “on a moment’s notice.” That was the factual situation in that case. At the same time, however, law enforcement discretion is also exercised at more removed policy-making levels, as with the no-citation and zero-tolerance policies at issue here. There is no reason to suppose that the Atwater Court’s conclusion--that the benefits from additional reasonableness standards beyond probable cause were not worth the burden on law enforcement discretion--was restricted to the burden on the officer in the field. In fact, when the Atwater Court dismissed the arguments for additional reasonableness standards as attempts to impose “something akin to a ‘least-restrictive-alternative’ limitation” that was “generally thought inappropriate in working out Fourth Amendment protection.” In addition, the “very fact that [Fourth Amendment] law has never jelled the way Atwater would have it” led the Court to doubt “whether warrantless misdemeanor arrests need constitutional attention.” The Court enumerated a number of protections, both constitutional and practical, that it thought obviated the need for reasonableness scrutiny above and beyond probable cause. The Court concluded that “[t]he upshot of all these influences, combined with the good sense (and, failing that, political accountability) of most local lawmakers and law enforcement officials, is a dearth of horribles demanding redress.” The Atwater Court even cited WMATA’s decision in this case to change its policy and to provide for citations in lieu of arrest for “subway snackers,” as an example of the efficacy of the “practical and political considerations” supporting the absence of a need for a reasonableness balancing beyond probable cause.
While we can inquire into the reasonableness of the manner in which an arrest is conducted, the most natural reading of Atwater is that we cannot inquire further into the reasonableness of a decision to arrest when it is supported by probable cause. That is true whether the decision to arrest upon probable cause is made by the officer on the beat or at a more removed policy level.
Even if Atwater were not controlling, Ansche has not made the case that her arrest was unconstitutional. Her claim that a policy of mandatory arrest for certain minor offenses is unconstitutional boils down to an assertion that officer discretion is a necessary element of a valid seizure under the Fourth Amendment, at least for some minor offenses. She has not made an effort to defend that assertion under the usual first step of any analysis of whether particular government action violates the Fourth Amendment--asking “whether the action was regarded as an unlawful search or seizure under the common law when the Amendment was framed.” Moreover, insisting on the exercise of discretion by an arresting officer would be an unfamiliar imperative under the Fourth Amendment. “The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of ‘reasonableness’ upon the exercise of discretion by government officials . . . .” It is the high office of the Fourth Amendment to constrain law enforcement discretion; we see no basis for turning the usual Fourth Amendment approach on its head and finding a government practice unconstitutional solely because it lacks a sufficient role for discretionary judgment. Given the undisputed existence of probable cause, Atwater precludes further inquiry into the reasonableness of Ansche’s arrest under the Fourth Amendment.

Chapter 6: Searches and Seizures of Property
You Decide 6.1
United States v. Myers, 106 F.3d 936 (10th Cir. 1997).
Mr. Myers claims that the KBI’s method of executing the search warrant violated his Fourth Amendment right against an unreasonable search. He argues that the KBI failed to comply with the knock-and-announce requirement in violation of the Fourth Amendment. However, the agents who conducted the search testified that they knocked loudly on Mr. Myers’s front door and waited 10 s before battering it down. Thus, the district court’s conclusion that the police knocked and announced is supported by evidence and is not clearly erroneous.
Mr. Myers also challenges the agents’ use of what he calls a “military-style assault.” Pursuant to the warrant, the agents, dressed in black uniforms, conducted the search of Mr. Myers’s residence in the early morning hours. The agents battered down the door and rolled a distraction device into the house, which exploded with a brilliant flash of light and a loud bang, the purpose of which is to distract and disorient any occupants in the vicinity of the entry.
In reviewing Mr. Myers’s Fourth Amendment claim, we must determine whether the agents’ actions were “objectively reasonable” in light of the facts and circumstances confronting them. The use of a “flashbang” device in a house where innocent and unsuspecting children sleep gives us great pause. Certainly, we could not countenance the use of such a device as a routine matter. However, we also recognize that we must review the agents’ actions from the perspective of reasonable agents on the scene, who are legitimately concerned with not only doing their job but with their own safety. Although it might seem that the KBI’s actions in this case come dangerously close to a Fourth Amendment violation, we cannot say that their actions were objectively unreasonable given the district court’s factual findings. The district court found that the agents knew that Mr. Myers had a history of illegal drug trafficking and had spent time in federal prison for a firebombing incident, although they were unsuccessful in learning of the details of the incident. The district court obviously credited police testimony that Mr. Myers’s lengthy pattern of criminal activity--beginning with the firebombing in 1971 and continuing until the cocaine conviction in 19881--made them apprehensive. The district court also found that the agents knew that there was a fair probability that Mr. Myers’s residence contained an illegal marijuana growing operation.

You Decide 6.2
United States v. Lyons, 706 F.2d 321 (Ct. App. D.C. 1983).
After a trial before the District Court, the appellant was convicted of distribution of and possession with intent to distribute a controlled substance, He contests his convictions on a variety of grounds. Most of his contentions are meritless. We conclude, however, that the warrantless, postarrest search of the appellant’s hotel room, in the course of which the police discovered a pistol, violated the Fourth Amendment. Admission into evidence of the fruit of that search was therefore improper, and the appellant’s conviction on the firearms count must be reversed. Because no evidence relevant to the narcotics count was obtained through the illegal search, the appellant’s conviction . . . is sustained.
The pertinent facts may be stated briefly. In March 1982, Detectives Michael Bland and John Centrella were engaged in an undercover investigation of narcotics trafficking in the District of Columbia. With the aid of an informant, they arranged to buy approximately 2 kg of cocaine from the appellant, Judah R. Lyons, who then resided in Colorado. In anticipation of the transaction, Bland and Centrella arranged to rent two rooms in the George-town Mews Hotel. Lyons was to stay in Room 209 during his sojourn in town; the police were to occupy Room 214, from where they could conduct visual surveillance of activities in Room 209 and monitor conversations therein, transmitted by a device worn by Centrella.
In the afternoon of March 23, 1982, Lyons arrived in Washington on a flight from Colorado. Soon after his arrival, a key to the room that had been rented on his behalf was given him by a third party (whose identity remains secret); Lyons may have been aware that his benefactor retained a duplicate key. One Timothy Eyerman gave Lyons a ride to the hotel, where Lyons deposited his personal belongings. During the remainder of the afternoon and the morning of the following day, Lyons traveled about the city, dining with Eyerman and later making contact with two accomplices. He spent the night in the room that had been rented for him.
At midday on March 24, Centrella met with Lyons in the lobby of the hotel and the two agreed to “do the deal.” They retired to Lyons’ room, where, after some preliminary negotiation, Lyons gave Centrella a sample of the cocaine. Centrella then briefly left the room, returning with Bland (posing as a “chemist”) and the purchase money. The sale was soon consummated. Immediately afterward, in response to a prearranged signal from Centrella, Detective Dwight Rawls and Sergeant Alfred Boyd entered the room and arrested and handcuffed Lyons. 
After his arrest, Lyons briefly “collapsed.” He was revived and immobilized, seated on a chair, at a spot “somewhere very close to the door [of the room], either just inside or just outside.” Sergeant Rawls then systematically searched the room, moving “clockwise” around the outside, collecting all of Lyons’ belongings. In an open closet in the wall adjacent to the wall in which the entrance was located, Rawls found an overcoat that Lyons had been seen wearing or carrying earlier that day. Rawls noticed that one side of the coat was heavy; reaching into the pocket, he discovered a loaded revolver. After recovering these items, Rawls continued around the room and came across a suitcase lying open at the foot of the bed. Inside the suitcase, apparently in plain view, were a shoulder holster, two “speed loaders” (devices for rapidly reloading a revolver), a quantity of ammunition, and various financial records. These materials were added to Rawls’ cache.
The police had not obtained a warrant for the search. They did not ask Lyons what he wished done with his belongings, and Lyons did not voice any objection to the collection of his things. It also appears that the police had no intention of giving the coat to Lyons to wear on the way to the station. Rawls later admitted that, at the time of the search, he did not fear for his personal safety. Indeed, he insisted that he was not looking for weapons or contraband. Rather, he claimed that his purpose was to collect all of Lyons’ property, so that the police might vacate the premises. He argued that the procedure was mandated by police regulations designed to protect the city from possible civil liability resulting from loss or theft of an arrestee’s goods. 
Prior to trial, Lyons moved to suppress the evidence obtained as a result of the search. After a hearing, the District Court denied the motion. The court rejected the . . . Having concluded that Lyons possessed a justifiable expectation of privacy in his room and the closet therein, we must consider whether the warrantless, postarrest search of the coat hanging in his closet complied with the dictates of the Fourth Amendment. Our analysis is shaped by one overarching principle:
[T]he most basic constitutional rule in this area is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions.” The exceptions are “jealously and carefully drawn,” and there must be “a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.” “[T]he burden is on those seeking the exemption to show the need for it.”
The Government first seeks to characterize the exploration of Lyons’ closet as a “search incident to a lawful arrest.” Modern doctrine governing this well-recognized exception to the warrant requirement stems from Chimel v. California. The Supreme Court there held that, subsequent to a valid arrest, the police may legitimately search the suspect’s person and his immediately environs. The scope of the search permitted under this rule is defined by reference to its rationale:
When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area “within his immediate control”--construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.
There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs--or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The “adherence to judicial processes” mandated by the Fourth Amendment requires no less.
The guidelines set forth in the foregoing passages have not been interpreted rigidly. Custodial arrests are often dangerous; the police must act decisively and cannot be expected to make punctilious judgments regarding what is within and what is just beyond the arrestee’s grasp. Thus, searches have sometimes been upheld even when hindsight might suggest that the likelihood of the defendant reaching the area in question was light. See, e.g., United States v. Mason (sustaining search of a closet “3 or 4 ft.” away from a standing, handcuffed defendant who had attempted to obtain a jacket hanging therein). And it has been held that an arresting officer is not obliged, before searching an arrestee’s immediate vicinity, “to calculate the probability that weapons or destructible evidence may be involved.”. But the touchstone remains the justification articulated in Chimel. To determine whether a warrantless search incident to an arrest exceeded constitutional bounds, a court must ask: Was the area in question, at the time it was searched, conceivably accessible to the arrestee--assuming that he was neither “an acrobat [nor] a Houdini”? The search of the closet in the instant case clearly was beyond the pale demarcated by Chimel and its progeny. At the time of the search, Lyons was sitting, handcuffed, on a chair near the doorway. Inside the room were six police officers, at least four of whom presumably were armed. The closet was located at the far end of the wall adjacent to that in which the doorway was located--several yards away from Lyons. Under these circumstances, it is inconceivable that Lyons could have gained access to the area. It is also clear that Lyons never made any attempt to reach the closet nor did he even request access to it.
In sum, we conclude that this case is controlled by the principle that a warrantless search “remote in time or place from the arrest” is not, for constitutional purposes, a search “incident” to that arrest. 
For the foregoing reasons, we find that the search of the pockets of the overcoat hanging in the closet impinged upon Lyons’ legitimate expectations of privacy and was not justified by any exception to the warrant requirement. Consequently, Lyons’ pistol was obtained through a procedure that violated his rights under the Fourth Amendment. The District Court, therefore, should have excluded the gun from the evidence in the case. Its failure to do so requires reversal of Lyons’ conviction on the firearms count. We hereby vacate the appellant’s conviction on the firearms count, affirm his conviction on the narcotics count, and remand for reconsideration of the sentence imposed. 

You Decide 6.3
United States v. Paulino, 924 A.2d 308 (Md. 2007).
On September 29, 2000, Detective Elliot Latchaw and other members of the Baltimore County Police Department received information from a confidential informant who told them that later that evening petitioner, John August Paulino (Paulino), would be in the 1100 block of North Point Road, Dundalk, MD, and would be in possession of a quantity of controlled dangerous substance. The informant also advised the police that Paulino typically hides the controlled dangerous substance in the area of his buttocks. Acting on the information provided by the informant, the police established surveillance in the 1100 block of North Point Road. At the suppression hearing, Detective Latchaw described the surveillance in greater detail:

[Detective Latchaw]: He actually--we had surveillance established on the parking lot, and he was actually observed on the parking lot, and he was actually observed by myself as they pulled into the entrance to the car wash. He was seated in the passenger seat. I saw him clear as day, and I radioed real quick to everybody, this is him, he’s in the passenger seat. And at that time, they actually pulled [into one of] the bays of the car wash. There’s like maybe six or eight bays all away across in the line. When they pulled in, they were blocked in, and he was removed from the vehicle. And I don’t know exactly how he was taken out of the vehicle or if he got out on his own, I don’t know, because at that point, I was back a little ways coming up. There was a--there was a team to do all that.
There was also testimony describing the location of the search:
[Defense Counsel]: Is that area of Dundalk fairly busy at that time of night?
[Detective Latchaw]: Not at all. It’s actually--the car wash is actually back--you pull into a parking lot, and you’ve got to go past an entrance to a storage facility, like those little mini storage buildings, and actually go past a--like an auto repair center. And then at the very end of this little parking lot, it’s kind of like a zigzaggy entrance. Driveway kind of turns around to the left and comes back to the right, and the very back is the car wash all by itself. It’s real secluded back there actually.
[Defense Counsel]: Were there any other people back there at that time around 11–15 that evening other than yourself and Mr. Paulino?
[Detective Latchaw]: No, not that I--not that I can remember.
[Defense Counsel]: Yourself--
[Detective Latchaw]: Well, other units of Baltimore County Police. Right.
[Defense Counsel]: No civilian personnel?
[Detective Latchaw]: No. Nobody was washing their cars, that I can remember.
[Defense Counsel]: Is that a lighted area, dark area?
[Detective Latchaw]: Well lit.
[Defense Counsel]: Is that viewable by people in the area walking by or not really?
[Detective Latchaw]: No. No, it’s way back. It’s back off the road. It’s real secluded.
The testimony regarding the police officer’s subsequent actions is less clear:
[Defense Counsel]: And you did conduct a search then, is that correct? How did you come to find the drugs?
[Detective Latchaw]: Well, when we--when Mr. Paulino was removed from the vehicle and laid on the ground, his pants were already pretty much down around his--below his butt, because I guess that’s the fad, these guys like wearing their pants down real low, so it was just a matter of lifting up his shorts, and--and between his butt cheeks the drugs were--I believe one of the detectives actually put on a pair of gloves and just spread his cheeks apart a little bit and it was right there.
[Defense Counsel]: So they were not visible before you actually spread his cheeks apart, is that correct?
[Detective Latchaw]: I don’t think they were.
Paulino offers a slightly different version of the facts concerning the search:
[Defense Counsel]: Where was the search conducted?
[Mr. Paulino]: Inside a car wash.
[Defense Counsel]: In the presence of other people or by yourself?
[Mr. Paulino]: Other people was around. It was about 12 other officers.
[Defense Counsel]: At that time, your- your anal cavity was searched. Is that correct?
[Mr. Paulino]: They had searched me in my pockets, didn’t find nothing, and eventually, they came to the subject where--in my report, it states that the officer said, Mr. Paulino, why is your butt cheeks squeezed? And in further response, I said nothing. He said it again, and another officer came behind with gloves and pulled my pants down and went in my ass. Well, my cheeks. Sorry about that.
In support of his challenge to the validity of the search, Paulino relies on the Fourth Amendment to the U.S. Constitution. The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched and the persons or things to be seized. The Fourth Amendment is made applicable to Maryland through the Fourteenth Amendment and prohibits searches that are “unreasonable under the circumstances.”
Police are allowed to conduct a search incident to an arrest in order “to remove any weapons that the [arrestee] might seek to use in order to resist arrest or effect his escape . . . [or] to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.” In United States v. Robinson, 414 U.S. 218 (1973), the Supreme Court explained the scope of a search incident to an arrest in light of its decision in Chimel. The issue before the Court in Robinson was whether after a custodial arrest, a police officer could conduct a full search of the arrestee or, in the alternative, if the scope of a search incident to arrest is limited to a frisk of the outer clothing. The Court held that a search of an arrestee’s waist, pants, pockets, as well as the contents of the arrestee’s pockets, supports “the need to disarm the suspect in order to take him into custody” as well as “the need to preserve the evidence on his person for later use at trial” and is therefore permissible under Fourth Amendment law. The rationale of Chimel and Robinson entitles he police, under the Fourth Amendment, to conduct a full search incident to arrest, without a warrant, so long as the search does not involve a bodily intrusion. See Schmerber v. California, 384 U.S. 757 (1966). In Schmerber, the Court held that the Fourth Amendment protects an arrestee’s privacy interests in his person and prohibits bodily intrusions that “are not justified in the circumstances, or which are made in an improper manner.” We note, however . . . that “the Supreme Court has not [specifically] addressed the validity of strip searches incident to an arrest.” Here the police had reason to believe that Paulino carried drugs on his person and under his clothing, but that fact was not the justification for the search. Paulino’s arrest served as justification for the search incident and the underlying probable cause for his arrest was never challenged. The actual challenge, however, is to the search of Paulino. He contends that the search constituted a strip search. By definition a strip search involves a more invasive search of the person as opposed to a routine custodial search. Therefore, the necessity for such an invasive search must turn upon the exigency of the circumstances and reasonableness. Without the constitutional safeguards of exigent circumstances and reasonableness, every search incident could result in a strip search. As we have said, “[t]he meaning of exigent circumstances is that the police are confronted with an emergency--circumstances so imminent that they present an urgent and compelling need for police action.” Therefore, we must determine whether the circumstances of the search in the present case rise to that level.
Paulino contends that, at a minimum, the search conducted here was a strip search. In Paulino’s view, the search “was more intrusive than a mere strip search” because the cheeks of his buttocks were manipulated by the police. Paulino asserts that “by spreading apart the cheeks of [his] buttocks” the search was beyond the realm of a strip search and, instead, was a “visual body cavity search.” In response, the State contends that the search of Paulino occurred “without removing any of Paulino’s clothing” and that the “search arguably did not . . . constitute a ‘strip search’.” Further, according to the State, “the police action . . . did not constitute a visual or manual ‘body cavity search’” because, to retrieve the contraband, the police officers only lifted up Paulino’s shorts. For reasons discussed, we conclude that the search of Paulino was both a strip search and a visual body cavity search.
There exist three separate categories of searches. A “strip search,” though an umbrella term, generally refers to an inspection of a naked individual, without any scrutiny of the subject’s body cavities. A “visual body cavity search” extends to a visual inspection of the anal and genital areas. A “manual body cavity search” includes some degree of touching or probing of body cavities.
Based upon the record before us, we conclude that the police officers’ search of Paulino was both a strip search and a visual body cavity search. It appears that the police officers attempted to manipulate Paulino’s clothing in such a manner that his buttocks could be more readily viewed. In this instance, the police did not only lift up Paulino’s shorts, but also the officers manipulated his buttocks to allow for a better view of his anal cavity. If, in this case the drugs were protruding from between the cheeks of Paulino’s buttocks and visible without spreading his buttocks cheeks, the classification of the type of search would be a close one. In this case, however, the drugs were not visible until after the cheeks of Paulino’s buttocks were spread apart. Therefore, when the police officers spread the cheeks of Paulino’s buttocks to inspect his anal cavity and, upon doing so, observed a plastic bag containing drugs, their conduct amounted to a “visual body cavity search
Notwithstanding the search incident to arrest exception to the warrant requirement, the search conducted by the police must be reasonable in light of the exigencies of the moment. The fact that the police can lawfully initiate the search of a suspect does not then give the police carte blanche authority to conduct an unreasonable search. The U.S. Supreme Court’s decision in Bell sets forth the appropriate test for determining the reasonableness of a search. 
In Bell, the Supreme Court addressed the permissible scope of searches incident to arrest that occurred in association with pretrial detention. 441 U.S. at 523, several defendants brought a class action suit challenging detention policies requiring pretrial detainees to be subjected to a “visual body cavity” search every time the detainee had contact with individuals outside of the institution. The Court assessed the reasonableness of these searches by stating:
The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case, it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.
We conclude that, on balance, the location of the search and the lack of exigency made the search of Paulino unreasonable.
We hold that the police officers’ search of Paulino was highly intrusive and demeaning. The type of search that Paulino was subjected to, and other searches that “entail[] the inspection of the anal and/or genital areas have been accurately described as demeaning, dehumanizing, undignified, humiliating, embarrassing, repulsive, degrading, and extremely intrusive of one’s personal privacy.”
We turn next to the second factor in the Bell analysis, justification for initiating the search. The State contends that there was justification for initiating the search “because the police had sufficient cause to believe that the illegal narcotics Paulino was known to be possessing were actually being concealed in that place.”
We do not agree, as the State’s argument suggests, that because the police had probable cause to arrest Paulino, the police were justified in searching him to the extent he was searched under the circumstances. The crux of this case, as illuminated is not whether the police had the right to search Paulino, but instead whether an exigency existed such that an invasive search, conducted at the scene of the arrest, was reasonable.
Lastly, we examine the final two factors in the Bell analysis. We take into consideration the place and manner in which the search of Paulino was conducted. As to the place of the search, Paulino contends that the parking lot of a car wash is a “very public location [that was] within plain view of people who were not involved in the search itself” Further, Paulino contends that the presence of other people, who were not involved in the search of his person made this search exceptionally public and therefore unreasonable. The State contends that the search of Paulino was conducted in an appropriate manner because, in its view, “none of Paulino’s clothes were removed, nor is there evidence that any part of his naked body was exposed unduly to any persons other than the searching officers. Paulino’s pants were kept in place during the search . . . [and] [t]here is absolutely no evidence of any gratuitous or unnecessary action taken by the police.” The State also argues that “the search occurred at night in the barricaded stall of . . . a ‘secluded’ car wash” and that no “part of Paulino’s naked body was observed or was capable of being observed by anyone other than the searching officers, much less others at the scene or the general public.”
The testimony from the suppression hearing in the case . . . viewed in the light most favorable to the State does not indicate that the officers made any attempt to protect Paulino’s privacy interests. The search was conducted in the very place in which he was arrested, a car wash. Similarly, there is no indication in the record before us that the police made any attempt to limit the public’s access to the car wash or took any similar precaution that would limit the ability of the public or any casual observer from viewing the search of Paulino. In our view, the search as conducted was unreasonable.
During the search of Paulino, his pants were below his waist, his underwear was “lifted up” and the cheeks of his buttocks were manipulated and exposed. In our view, the search of Paulino was . . . invasive and . . . there is no evidence that the search of Paulino was shielded from the view of passersby or the people present at the scene.
In the instant case, the State contends that because the search did not occur on the side of a well-traveled highway and was conducted at night; the search, therefore, was reasonable. The State appears to overlook that its failure to prove exigent circumstances and the reasonableness of the search are determinative. As we have noted previously, “the burden is on those seeking the exemption [from the warrant requirement] to show the need [for the search].” There was no testimony at the suppression hearing in the case that Paulino was attempting to destroy evidence, nor that he possessed a weapon such that an exigency was created that would have required the police officers to search Paulino at that precise moment and under the circumstances, in a “well-lit” public car wash. There is no dispute that members of the public were present, specifically, the other passengers in the Jeep Cherokee. It is their presence, whether their view was obscured or otherwise, that makes the search of Paulino unnecessarily within the public view and thus violative of the Fourth Amendment. The police could have taken any number of steps, including patting Paulino down for weapons at the scene of the arrest and conducting the search inside the Jeep Cherokee vehicle in which Paulino was a passenger, or at the police station, to protect Paulino’s privacy interest. Similarly, the police could have conducted the search in the privacy of a police van. During the transportation of Paulino from the scene of the arrest to the station or to a more private location, the police had the ability to secure Paulino to prevent his destruction or disposal of the contraband found on his person. Instead, they chose to search him in a public place in the view of others. Accordingly, we hold that the search of Paulino unreasonably infringed on his personal privacy interests when balanced against the legitimate needs of the police to seize the contraband that Paulino carried on his person.

Battaglia, J. with whom Cathell and Wilner, JJ., join dissenting

The crux of the present case is whether the police’s search of Paulino was reasonable under the Fourth Amendment The majority concludes that the search was both a highly intrusive strip search and a visual body cavity search and holds that the search was unreasonable, emphasizing the location of the search and the perception that there was a lack of exigency. I disagree that the search constituted a strip search or a visual body cavity search, and that the search was unreasonable.
The evidence adduced at the suppression hearing reflected that police knew that Paulino would be traveling in a Jeep Cherokee near a car wash in the 1100 block of North Point Road in Dundalk around 11 p.m. on September 29, 2000, and that he would be in possession of a quantity of crack cocaine, secreted in his buttocks area between his butt cheeks. Based upon this information, the police arrested Paulino when he arrived at the car wash, placed him on the ground, and conducted the search, lifting up his boxer shorts, reaching between his butt cheeks, and securing the baggie. Paulino was already wearing his pants below his buttocks so that the officers found the drugs by simply “lifting up [Paulino’s] shorts,” but not by removing them:
[COUNSEL FOR PAULINO]: And you did conduct a search then, is that correct? How did you come to find the drugs?
[DETECTIVE LATCHAW]: Well, when we--when Mr. Paulino was removed from the vehicle and laid on the ground, his pants were already pretty much down around his--below his butt, because I guess that’s the fad, these guys like wearing their pants down real low, so it was just a matter of lifting up his shorts, and between his butt cheeks, the drugs were--I believe one of the detectives actually put on a pair of gloves and just spread his cheeks apart a little bit and it was right there.
The fact that Paulino’s shorts were pulled away from his waist so that the searching officer could determine whether he had drugs secreted in his buttocks area does not render the intrusion a strip search or a visual body cavity search.
A reach-in search of a clothed suspect does not display a suspect’s genitals to onlookers, and it may be permissible if police take steps commensurate with the circumstances to diminish the potential invasion of the suspect’s privacy.
A “reach-in” search, or a search of a clothed suspect wherein the officer conducting the search reaches between an individual’s clothing and his skin, without exposing the individual’s genitalia to onlookers, is not the same as a strip search or visual body cavity search, and its reasonableness is measured by its limited intrusiveness weighed against the needs of the police to seize drugs they believe are secreted on a suspect’s body.
The search of Paulino was reasonable under the Bell reasonableness balancing test; the police needed to conduct the search in order to prevent either loss or destruction of the drugs, which could have occurred while in transit, and the officers protected Paulino’s privacy interests by conducting the search in such a manner to prevent any onlookers from viewing his genitalia
Rather, the fact that Paulino was not fully or partially disrobed differentiates the instant search. A reach-in search of a clothed suspect does not display a suspect’s genitals to onlookers, and it may be permissible if police take steps commensurate with the circumstances to diminish the potential invasion of the suspect’s privacy.
Thus, the fact that the search of Paulino involved an officer touching Paulino’s buttocks to view the drugs did not automatically make the search an unreasonably intrusive strip search. Instead, Paulino’s search was a reasonable “reach-in” search incident to arrest.
Even were the search of Paulino to be considered a strip search, it was reasonable. Although the majority agrees that strip searches may be reasonable, it finds that the search of Paulino was unreasonable because it was conducted at a “public” car wash in the presence of Paulino’s friends who arrived with him in the Jeep Cherokee. In its conclusion, the majority is establishing a per se rule that strip searches must be done in an enclosed area. Such a per se rule violates the standard of reasonableness iterated in Bell v. Wolfish, 441 U.S. at 520. In Bell, the Supreme Court remarked that whether a strip search is reasonable is incapable of being measured by per se rules because the test for reasonableness “is not capable of precise definition or mechanical application.” The Court did not differentiate between searches conducted in public and searches conducted in enclosed areas, stating that the reasonableness of a search is measured by balancing the need for the particular search--in this case, the police’s need to prevent evidence from becoming destroyed or lost--against the invasion of privacy the search entails.
A custodial arrest gives rise to the authority to search, even if the arresting officer does not “indicate any subjective fear of the [defendant] or . . . suspect that [the defendant] was armed.” “The justification or reason for the authority to search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial. . . . It is the fact of the lawful arrest which establishes the authority to search, and . . . in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a reasonable search under that amendment.”
The police took reasonable precautions to protect Paulino’s privacy interests, and the search, although not done in a physically enclosed space, was no more intrusive than necessary to determine whether Paulino possessed drugs. The evidence at the suppression hearing reflected that Paulino arrived at the car wash late at night when the car wash was closed to the public. The police arrested him, placed him on the ground, and conducted the search, lifting up his boxer shorts, reaching between his butt cheeks, and securing the baggie, precisely where they were told it would be. The police secured the drugs in Paulino’s possession inside the bay of a car wash facility in the rear of a parking lot, blocked in by police vehicles, and secluded behind a storage facility and an automobile repair shop, such that the area could not be seen by passersby. Although the majority assumes that Paulino’s friends were present at the car wash and that they had the ability to view Paulino’s buttocks during the search, there was no evidence adduced at the suppression hearing to support this assertion. Although one of the detectives testified that the car wash area was well-lit, there is no evidence that anyone saw Paulino’s genitalia nor that anyone other than the searching officer saw Paulino’s buttocks.
Moreover, even when there exist alternatives, or less intrusive means, to conduct a search, that does not by itself render the search unreasonable. “A creative judge engaged in a post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished. But [t]he fact that the protection of the public might, in the abstract, have been accomplished by ‘less intrusive’ means does not, itself, render the search unreasonable. The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.”
By holding as it does, the majority impermissibly restricts the police’s ability to conduct reasonable searches under the Fourth Amendment for drugs that are secreted on an individual known to be carrying such drugs to prevent their loss. I disagree and would affirm the judgment of the Court of Special Appeals.
Cathell, J., dissenting 

I join Judge Battaglia’s dissent and would further hold that when a person wears their pants below the level of their buttocks, he or she is intentionally offering that area for observation by the public and obviously has no expectation of privacy sufficient to prohibit a police officer from also looking.
If a person wants to have an expectation of privacy in that area of his or her body, he or she should keep their pants up when in public.

You Decide 6.4
United States v. Shakir, 616 F.3d 315 (3rd Cir. 2010).
On May 22, 2007, a Pennsylvania state magistrate judge issued an arrest warrant for Naim Nafis Shakir, who police believed was involved in an armed robbery of a PNC Bank a month earlier. The warrant was promptly entered into the database of the National Crime Information Center and came to the attention of Federal Bureau of Investigation agents in Pennsylvania. Because those agents believed Shakir had gambling ties to Atlantic City, NJ, they enlisted the help of FBI Special Agent Joseph Furey in New Jersey.
The following day, Special Agent Furey learned that Shakir had recently stayed in the Trump Plaza Hotel and Casino. In response, Furey asked Atlantic City Police Detective David Smith, who was assigned to an FBI task force, to investigate the lead. Detective Smith visited the Trump Plaza and was informed that not only had Shakir been gambling at the casino the previous day, but he was expected to check into the hotel at 4:00 that afternoon. Since it was already around 2:00 p.m., Smith immediately notified Special Agent Furey, who began to organize a team to arrest Shakir upon his appearance at the hotel. Before the arrest team arrived, however, security spotted Shakir entering the hotel. When he learned this, Smith asked Special Agent Furey to expedite his arrival to effectuate the arrest. Smith also called the Atlantic City Police to request a squad car. Smith then proceeded to the lobby with two hotel security personnel; all three were dressed in plainclothes.
Soon after he entered the lobby, Detective Smith spotted Shakir standing at the end of the check-in line some 25 ft. away, holding a gym bag. As Smith drew closer to Shakir, he heard a man about 15 ft. away yell “shit!,” which Smith took as a warning to Shakir. Although Shakir turned as if to respond, he simply maintained eye contact with the shouter. Meanwhile, Detective Smith asked the hotel security agents, both of whom were unarmed, to detain Shakir’s apparent confederate while Smith hurried over to Shakir, grabbed his arm, and placed him under arrest. Shakir complied and dropped his bag on the floor at his feet.
Detective Smith immediately patted down Shakir and found no weapons on his person. Smith attempted to handcuff Shakir but was unable to do so because of Shakir’s girth. 
Indeed, Shakir advised Smith that police “usually use three sets of handcuffs.” Shakir was polite and compliant during the arrest, and after the initial excitement, the arrest was “very low key.” There were approximately 20 people in the hotel lobby during and following the arrest.
Within 5 min of Shakir’s initial arrest, two armed police officers arrived *317 with handcuffs which Smith used to restrain Shakir. While the other officers held Shakir by the arms, Smith bent down to investigate the contents of the bag at Shakir’s feet. Therein Smith found clothes and a large amount of cash but no weapons. Some of the cash in the bag was later identified as having been stolen during an armed robbery of the Belco Credit Union in Lancaster, PA, on May 21, 2007 (not from the PNC Bank robbery that prompted the warrant for Shakir’s arrest).
Shakir was indicted on one count of armed robbery of the Belco Credit Union in violation of 18 U.S.C. §§ 2113(d) and 2. Prior to trial, Shakir filed a motion to suppress evidence, claiming Detective Smith’s search of his gym bag violated his Fourth Amendment right to be free from unreasonable searches. After the District Court denied the motion, Shakir proceeded to trial and was convicted by a jury.
Shakir’s sole argument on appeal is that the cash found by police was inadmissible at trial because it was the fruit of an illegal search. The government counters that it conducted a legal search incident to arrest. Under this well-recognized exception to the warrant requirement of the Fourth Amendment, “[w]hen an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape.” The permissible scope of a search incident to arrest includes “the arrestee’s person and the area ‘within his immediate control’--construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” The crux of Shakir’s appeal is that because he was already handcuffed at the time Detective Smith searched his bag, he had no access to any weapon or destructible evidence that might have been in the bag. The government responds by citing several appellate decisions upholding searches incident to arrest conducted after the suspect was handcuffed. . . . These decisions followed a general trend among the courts of appeals, following the Supreme Court’s decision in New York v. Belton toward a rule that although “the search is limited to the area under the defendant’s control at the time of his arrest, the fact that it is no longer under his control at the time of the search does not invalidate the search.” “[I]f the courts were to focus exclusively upon the moment of the search, we might create a perverse incentive for an arresting officer to prolong the period during which the arrestee is kept in an area where he could pose a danger to the officer.” .
Like the District Court’s decision denying Shakir’s motion to suppress, however, the cases upon which the Government relies all predated the Supreme Court’s decision in Arizona v. Gant, which narrowed the scope of the search-incident-to-arrest doctrine. In Gant, the Supreme Court held that officers could not search an arrestee’s car after he had been removed from the vehicle and secured, noting that “[t]o read Belton as authorizing a vehicle search incident to every recent occupant’s arrest would thus untether the rule from the justifications [i.e., officer safety and preventing the destruction of evidence] underlying the Chimel exception.” Accordingly, the Gant Court concluded that searches of a suspect’s automobile are not permitted incident to an arrest when the police “could not reasonably have believed . . . that [the arrestee] could have accessed his car at the time of the search.” Id.
Because Gant involved an automobile search, and because it interpreted Belton, another automobile case, the government contends that the rule of Gant applies only to vehicle searches. We do not read Gant so narrowly. The Gant Court itself expressly stated its desire to keep the rule of Belton tethered to “the justifications underlying the Chimel exception,” and Chimel did not involve a car search. Moreover, as we noted above, many courts of appeals perceived Belton to establish a relaxed rule for searches incident to arrest in all contexts. Because Gant foreclosed such a relaxed reading of Belton, there is no plausible reason why it should be held to do so only with respect to automobile searches, rather than in any situation where the item searched is removed from the suspect’s control between the time of the arrest and the time of the search. Although this Court has never explicitly adopted a “time of the arrest” rule like that adopted in the aforementioned cases, we do read Gant as refocusing our attention on a suspect's ability (or inability) to access weapons or destroy evidence at the time a search incident to arrest is conducted.
It is in this vein that Shakir points to our decision in United States v. Myers, 308 F.3d 251 (3d Cir. 2002), which we regard as being consistent with Gant despite predating it. In Myers, a single policeman responded to a 911 call reporting a disturbance involving a gun in an apartment. Upon arriving at the scene, he found the defendant hiding. The defendant came out and laid face down on the floor when ordered, throwing a bag down three feet away from himself in the process. The officer handcuffed the defendant and patted him down, finding nothing. Two other officers then arrived, and they took custody of the defendant while the first officer went downstairs to briefly interview a woman who had been arguing with the defendant. The first officer later returned upstairs, where Myers was still lying face down, handcuffed and attended by the two officers. Noticing that Myers was looking at the bag on the floor and acting nervously, the first officer searched the bag and found a gun inside. 
We held that this search was not lawfully incident to Myers’s arrest. In doing so, we quoted with approval an opinion of the Court of Appeals for the District of Columbia Circuit which suggested that a search under these circumstances would be valid as incident to the arrest “[a]bsent some objective basis upon which to conclude that the arresting officer had no reason to fear either the arrestee or the environment in which the arrest unfolded.” We also acknowledged that “where, in the heat of an arrest, an officer concludes that a particular item is within the arrestee’s grasp, courts are extremely reluctant to subsequently determine that the officer’s conclusion was unreasonable and thereby suppress whatever evidence may have been found.” Nevertheless, the facts of Myers’s case presented an objective basis to conclude that he was no longer dangerous when the search occurred: He was lying on the floor and guarded by two policemen, he had already been frisked for weapons, the bag that was searched was 3 ft. away from him and zipped shut, and the searching officer had not seen the need to search the bag at the time of arrest but instead went downstairs and interviewed a witness first. Id. Significantly for purposes of the instant appeal, we noted that, “[h]ad [the officer] searched the bag . . . before going downstairs, we would have a different set of circumstances to consider against the teachings of Chimel and its progeny.” We also emphasized that the officer’s testimony suggested that he was not concerned about the possible presence of a weapon until after he opened the bag. 
As in Myers, Shakir was handcuffed and restrained by two policemen at the time his bag was searched. Unlike in Myers, however, Shakir was standing up at the time of the search, he was in a public place with some 20 people around, and his bag was right next to him. In addition, the police had reason to believe that one or possibly more of Shakir’s accomplices was nearby, and the suspected accomplice Smith had identified was restrained only by two unarmed private security officers. Moreover, Detective Smith did not leave the scene before searching the bag, and he testified that his chief concern in searching the bag was to prevent any weapons that might be inside from being used to injure police or the innocent bystanders in the hotel lobby. As a result, several of the key elements of the objective basis on which we concluded that Myers was no longer dangerous are not present in this case.
Because Myers is not binding here, we are left to consider, under Gant and other relevant precedents, whether Shakir retained sufficient potential access to his bag to justify a warrantless search. Specifically, we must consider whether the fact that Shakir was handcuffed and guarded by two armed policemen precluded his access to the contents of the bag. Gant makes clear that whether a suspect is “secured” is an important consideration in assessing the lawfulness of a warrantless search. In fact, the Gant Court “h[e]ld that the Chimel rationale authorizes police to search a  vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” This language could be read to prohibit the search of the bag unless at the time of the search Shakir was both (1) unsecured and (2) within reaching distance of the bag. Under this reading, once a suspect is “secured,” no searches would be permitted incident to his arrest, regardless of whether the searched items are within his reaching distance.
We find such an aggressive reading of Gant to be unpersuasive, however, because it is inconsistent with the remainder of the Gant opinion, with other Supreme Court precedents, and with the valid concern for the safety of police and the public. First, a closer reading of Gant reveals that the Court’s references to a suspect being “unsecured” and being “within reaching distance” of a vehicle are two ways of describing a single standard rather than independent prongs of a two-part test. In later formulations of its holding, the Gant Court omitted any reference to whether Gant was secured or unsecured and looked instead simply to Gant’s ability to access his vehicle. Thus, the Court stated: “[b]ecause police could not reasonably have believed . . . that Gant could have accessed his car at the time of the search . . . the search in this case was unreasonable.” And in its final summation, the Court explained that “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search. . . . ” The conspicuous absence of any mention of the “secured” status of a suspect suggests that the Court did not regard it as an independent element that must be satisfied in order to justify a search incident to arrest. Accordingly, we understand Gant to stand for the proposition that police cannot search a location or item when there is no reasonable possibility that the suspect might access it.
Second, if Gant is construed to forbid all container searches after a suspect is handcuffed or held by police, it would not only narrow Belton but also effectively eliminate a major element of the search-incident-to-arrest doctrine. In Chimel, the Supreme Court stated that searches of “the arrestee’s person” and “the area into which an arrestee might reach” could be aimed at finding weapons the arrestee might use to “effect his escape.” The Court thus contemplated that such searches would take place after the suspect is restrained in some way. To hold that a container search incident to arrest may not occur once the suspect is under the control of the police, but before he has been moved away from the item to be searched, would eviscerate this portion of Chimel. Gant did not purport to do any such thing.
Third, we note that handcuffs are not fail-safe. As the Court of Appeals for the Fifth Circuit has stated, it is not true that by handcuffing a suspect, the police instantly and completely eliminate all risks that the suspect will flee or do them harm. . . . Handcuffs are a temporary restraining device; they limit but do not eliminate a person’s ability to perform various acts. They obviously do not impair a person’s ability to use his legs and feet, whether to walk, run, or kick. Handcuffs do limit a person’s ability to use his hands and arms, but the degree of the effectiveness of handcuffs in this role depends on a variety of factors, including the handcuffed person’s size, strength, bone and joint structure, flexibility, and tolerance of *321 pain. Albeit difficult, it is by no means impossible for a handcuffed person to obtain and use a weapon concealed on his person or within lunge reach, and in so doing to cause injury to his intended victim, to a bystander, or even to himself. Finally, like any mechanical device, handcuffs can and do fail on occasion.
In United States v. Sanders, 994 F.2d 200 (5th Cir. 1993), the court noted that “in 1991 alone . . . at least four police officers were killed by persons who had already been handcuffed.” Thus, reading Gant to prohibit a search incident to arrest whenever an arrestee is handcuffed would expose police to an unreasonable risk of harm.
For the foregoing reasons, we hold that a search is permissible incident to a suspect’s arrest when, under all the circumstances, there remains a reasonable possibility that the arrestee could access a weapon or destructible evidence in the container or area being searched. Although this standard requires something more than the mere theoretical possibility that a suspect might access a weapon or evidence, it remains a lenient standard.
Applying the legal standard we have enunciated to the facts of this appeal, we conclude that there remained a sufficient possibility that Shakir could access a weapon in his bag to justify its search. Although he was handcuffed and guarded by two policemen, Shakir’s bag was literally at his feet, so it was accessible if he had dropped to the floor. Although it would have been more difficult for Shakir to open the bag and retrieve a weapon while handcuffed, we do not regard this possibility as remote enough to render unconstitutional the search incident to arrest. This is especially true when we consider that Shakir was subject to an arrest warrant for armed bank robbery and that he was arrested in a public area near some 20 innocent bystanders, as well as at least one suspected confederate who was guarded only by unarmed hotel security officers. Under these circumstances, the police were entitled to search Shakir’s bag incident to arresting him. Consequently, suppression of the cash found within the bag was not required and we will affirm the judgment of the District Court

You Decide 6.5
Taylor v. State, 121 A.2d 167 (Md. Ct. Spec. App. 2015).
Appellant Efrain Taylor claims that police officers violated his Fourth Amendment rights when, after his arrest for  driving under the influence of alcohol (DUI), they searched his vehicle for containers of alcohol and instead found illegal narcotics. For the reasons set forth below, we affirm the ruling of the Circuit Court for Dorchester County that the search of his vehicle incident to his DUI arrest was constitutional. However, we also hold that the court incorrectly gave Taylor an enhanced sentence. Accordingly, we remand for resentencing.
Taylor was charged with possession with intent to distribute controlled dangerous substance (CDS), possession of CDS, failure to stop at a lawful  stop sign, driving in excess of a reasonable and prudent speed, driving under the influence, and driving while impaired. Prior to trial, Taylor filed a motion to suppress evidence.
Around 1:00 a.m. on March 1, 2013, Patrolman Chad Mothersell was on patrol in Cambridge. As he later testified, he “observed a SUV vehicle traveling southbound on Phillips [Street] at what appeared to be a high rate of speed,” which he estimated to be about 45 miles per hour in a 25 mile per hour zone. His conclusion was based on his “training and experience” in determining the speed of vehicles. Mothersell followed the vehicle and soon after, noticed that it failed to   stop at a stop sign while making a left turn on to Bradley Street. Mothersell turned on his emergency lights, the SUV stopped, and he pulled up behind it.
Mothersell approached the vehicle, in which Taylor was the only occupant, and asked him for his driver’s license. He stated that “[a]fter making contact with [Taylor], I detected a minor odor of alcohol beverage from his breath and person.” He observed that Taylor’s “speech was slurred, hard to ]  understand at certain times. His eyes were bloodshot and glassy.” Mothersell asked Taylor where he was before he started driving. Taylor replied that he had been at the Point Break Beach Bar in Cambridge.
At that point, Mothersell asked Taylor to step out of the vehicle so that the officer could administer “standardized field sobriety tests: the horizontal gaze nystagmus, the nine-step walk-and-turn, and the one-legged stand.” Mothersell “determined that these weren’t done successfully.”
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddMothersell placed Taylor under arrest for suspicion of DUI. By that time, Mothersell’s backup officer, Officer Carroll, arrived at the scene and conducted a search of the vehicle, while Mothersell read Taylor his DR-15 Advice of Rights. At this time, Carroll reported back to Mothersell that he had found some “controlled dangerous substance” in the vehicle inside the center console, which Carroll had opened. Mothersell then went to the vehicle and he “observed a clear plastic baggy containing several knotted bags of what [he] suspected to be powder cocaine.”
Mothersell explained at the suppression hearing that the purpose of a “search of a vehicle is to locate any other alcohol, open containers, anything pertaining to the DUI arrest.” Taylor’s attorney then asked:
Q: Were you able to make observations of the interior passenger compartment of the car in general?
A: Yes.
Q: And you described the lighting outside while all this is occurring? Obviously it’s the middle of the night.
A: Middle of the night, it might be a couple of street lights, illuminated with my spotlight, takedown lights, my own flashlight. . . . 
Q: Did you have any reason to believe that there were any such open containers in the vehicle?
A: A good possibility, yes. I’ve had several DUI arrests where there’s plenty of open containers left in the vehicle. And I want to make sure there’s no other alcohol in the vehicle for the probable cause for my DUI stop.
Q: But on this particular case, you had had an opportunity to approach the vehicle  on the passenger’s side, look inside the vehicle, and see what was going on; is that right?
[State’s Attorney]: Objection.
The Court: What’s your objection?
[State’s Attorney]: Your honor, he already answered the question.
The Court: Well, it is asked and answered. Go ahead.
A: At that point, I didn’t observe anything during my initial contact with him. My concern was also more directed to him, himself.
Taylor’s counsel later argued that Mothersell lacked “independent probable cause” for the search because “[t]here was [sic] no observed potential open containers. There was no odor of alcohol identified by the law enforcement officer emanating from the vehicle itself as opposed to Mr. Taylor.”
After considering this argument, the court denied his motion, stating:
  [O]n a stop for speed, a subsequent odor of alcohol, glassy eyes, and failure of field sobriety tests, the search of the vehicle incident to the arrest under those circumstances could have revealed a pint of whiskey in the glove compartment, who’s to say. So I feel the search was lawful as well. So the motion is denied.

b. Facts presented at trial
At trial on March 13, 2014, Officer Carroll testified that as Mothersell was reading Taylor his DR-15  Advice of Rights, Carroll approached the two and explained that he had “located some controlled dangerous substance.” Carroll later explained that during his search, he noticed the vehicle’s center console was closed, but not “fully latched down,” as a piece of paper stuck out of it. He opened the console and  observed a bag containing 76 smaller baggies of what was later tested to be 34.3 g of cocaine hydrochloride (powder cocaine). Mothersell then approached the driver’s side of the SUV, looked inside the cabin, observed the bags on the driver’s seat, and seized them. Later, at the stationhouse, Mothersell searched Taylor’s person and discovered $1,045 in cash in his pocket and wallet.
Taylor testified that on the night of the arrest, he had drunk one 12-ounce can of Bud Ice at the Point Break Beach Bar. He stated that he was on his way home at the time of arrest and “he did not own the SUV and that instead[,] another man, Leroy Roberts, owned it.” Taylor said he had borrowed the SUV to travel somewhere the following day and that the morning of the arrest was the first time he had entered the vehicle, so he was ignorant of the contraband inside. As to the cash, Taylor [ said he was purchasing and investing in tax liens and that he had been paid the balance of one lien that evening. He said that he had another check from one of those liens on the night of the arrest and tried to show it to Mothersell, who said “it wasn’t necessary.”
Taylor also tried to explain his sobriety test failures. He stated that he wore contact lenses and told this to the officer. He explained that he failed the one-legged stand test because of a past fracture in the tested foot. However, Taylor claimed he had passed the “step test” as instructed. He stated that he was not under the influence of alcohol on the night he was arrested. The record does not indicate that Taylor provided any corroboration of his claims regarding the tax liens or his medical ailments.
At trial, a jury acquitted Taylor of driving at an unreasonable speed but convicted him of all other charges. On July 7, 2014, the court then sentenced Taylor as a subsequent offender. He received a sentence of forty years of incarceration, with 20 years suspended, for the possession with intent to distribute charge, to be served consecutively to a sentence from a prior conviction. He was also sentenced to one year  of incarceration for driving or attempting to drive a vehicle under the influence of alcohol, to be served concurrently with the possession with intent to distribute sentence.

Questions Presented
Taylor presents the following question, which we have rephrased: 
1. Did the circuit court err in denying his motion to suppress the narcotics found in his vehicle?
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddTaylor has challenged the legality of his search under the Fourth Amendment which prohibits warrantless searches and seizures of a citizen’s “persons, houses, papers, and effects.” One of a number of exceptions to this rule is that an officer may, in certain circumstances, conduct a “search incident to an arrest.” https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddPolice may search an automobile incident to arrest   of its driver or passenger for two reasons. First, officers may “search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” No one suggests that this exception applies. https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddSecond, officers may also search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Absent either of these circumstances, a search of the vehicle would be unreasonable.

b. “Reasonable to believe”
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddUnder what circumstances is it reasonable to believe that evidence of the  offense of arrest will be in the vehicle? The Supreme Court did not explain what quantum of suspicion this standard would require. Is it a preponderance of the evidence, probable cause, or the reasonable suspicion for a stop and frisk under Terry v. Ohio. 
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddCourts that have considered this issue have held that “[p]resumably, the ‘reasonable to believe’ standard requires https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174dd less than probable cause, because otherwise Gant’s evidentiary rationale would merely duplicate the ‘automobile exception,’ which the Court specifically identified as a distinct exception to the warrant requirement.” Because the automobile exception “allows searches for evidence relevant to offenses other than the offense of arrest, and the scope of the search authorized is broader,” an officer must have a greater level of suspicion, that is, “probable cause to believe a vehicle contains evidence of criminal  activity.” “Rather, the ‘reasonable to believe’ standard probably is akin to the ‘reasonable suspicion’ standard required to justify a Terry search.” https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174dd“Accordingly, the officer’s assessment of the likelihood that there will be relevant evidence inside the car must be based on more than ‘a mere hunch’ but ‘falls considerably short of [needing to] satisfy[ ] a preponderance of the evidence standard’.” https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddSimilarly, we hold that a Gant-like search of an automobile incident to arrest must be based on a similar level of reasonable ]  suspicion as in an automobile stop under Terry. Therefore we look at the Terry line of cases for guidance here.

c. Factors  establishing reasonable belief
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174dd Whether a belief is reasonable depends upon the totality of the circumstances, rather than a categorical rule. As the Court of Appeals observed in Graham, where the officers “were immediately confronted with an array of facts which led them to reasonably suspect that Graham and Allen were engaged in some kind of criminal activity. . . . the subsequent arrest and seizure of property would not be tainted” and was not unconstitutional. Id. We believe relevant cases indicate that the following are appropriate considerations in developing a reason to believe evidence will be found in the vehicle: (1) a police officer’s training and experience, (2) the lack of an innocent explanation for a driver’s seemingly illicit behavior, and (3) the nature of the crime of arrest.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddFirst, an officer may draw on his or her personal training and experience to develop  a reasonable suspicion, or reason to believe, that a crime is afoot. Assessing the totality of the circumstances includes, inter alia, “allow[ing] officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person’.” 
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddSecond, an officer cannot, however, simply assert that “presumably innocent” behavior provides reason to believe evidence of the crime of arrest is in the vehicle. In Ferris, a driver was stopped for speeding at 1:06 a.m. and appeared to the arresting officer to have bloodshot eyes, but there was no odor of alcohol on his breath. https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174dd. https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddThe officer concluded that the driver was not under the influence of alcohol, but some other CDS. The Court of Appeals held that the officer lacked reasonable suspicion to search the vehicle for evidence of intoxication. The Court reasoned:
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddThe facts articulated by the trooper--that Ferris had exhibited extremely bloodshot eyes, nervousness, and a lack of odor of alcohol--are too weak, individually or in the aggregate, to justify reasonable suspicion of criminal activity. In the early morning hours, these factors  could fit a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddhttps://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddIn this case, the State presented no evidence that bloodshot eyes--or excessive speed--are indicative of persons under the influence of a controlled substance. In other words, Trooper Smith did not testify that Ferris’s bloodshot eyes were somehow distinct from other bloodshot eyes irritated by noncriminal causes, nor did he explain how excessive speed, without any other driving irregularity, might imply a driver’s impaired operation.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174dd. https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddBecause the officer failed to explain why apparently innocent behavior--driving with bloodshot eyes, nervousness, and lack of an odor of alcohol--established reasonable suspicion of criminal activity, the search of the automobile was impermissible. https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174dd“The Fourth Amendment does not allow the law enforcement official to simply assert that apparently innocent conduct was suspicious to him or her; rather, the officer must offer 'the factual basis upon which he or she bases the conclusion’.” https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddNotably, nowhere in Ferris is there an indication that  the officer ever explained how his training and experience led him to believe that the arrestee’s behavior was consistent with illegal activity. Under those circumstances, the Ferris officer  based his search not on a reasonable suspicion, but on a “mere hunch.” 
Third, certain offenses by their nature will involve evidence that an officer could reasonably believe is in a vehicle. A number of state courts to consider this issue have found that a DUI arrest provides   reason to believe there will be containers of alcohol in the vehicle.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddIn State v. Cantrell, the DUI arrestee challenged the search of his vehicle, stating that it was “not reasonable to believe that evidence of the offense of arrest, DUI, might be found in the vehicle based solely upon evidence of intoxication.” I. He argued that officers “must possess some additional information suggesting that evidence related to a DUI might be found in the vehicle,” such as evidence “in plain view, or partially hidden, but visible to the officers.” Id. However, the Court of Appeals of Idaho rejected this argument and held that no additional evidence was required once the arrestee was found to be intoxicated; the search incident to arrest for evidence  of the DUI offense was “authorized irrespective of whether evidence is known to be located in the vehicle.” Id. It was “reasonable to believe that evidence of the offense, e.g. alcohol containers or other evidence of alcohol use, ‘might be found in the vehicle’.” Notably, the court explained that Cantrell’s admission to consuming alcohol did not make it unreasonable for officers to still search for further evidence, as “officers are not required to accept as true a defendant’s version of the events.” Id. Furthermore, the court rejected Cantrell’s contention that a search of his vehicle is unreasonable because evidence of his DUI would only be contained in his body[, which] ignores the realities of a DUI investigation. Indeed, as the State points out, “a DUI trial does not start and end with a breathalyzer report,” considering the fact that the report may be suppressed in some instances.
Other state courts have followed this rationale. On facts similar to this case, the Kansas Court of Appeals held that:
 [L]ike drug offenses, driving under the influence is likely within the category of crimes identified by the Gant Court as supplying a basis for searching a vehicle. 
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddIn addition to evidence that the car Ewertz was driving swerved in its lane and crossed over the fog line, that [the officer] smelled alcohol in the car after he pulled Ewertz over, that Ewertz failed field sobriety tests, that Ewertz had glassy and bloodshot eyes, and that Ewertz slurred her words, there is also evidence that Ewertz admitted to drinking at least one alcoholic beverage before driving the car. . . . [I]t was “reasonable to believe” evidence relevant to the crime of driving under the influence might be found in Ewertz’ vehicle.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddIn Cain v. State, the court affirmed a denial of a motion to suppress where the appellant passed two field-sobriety tests, but smelled of alcohol and did not pass the horizontal gaze nystagmus test. After appellant was arrested for DWI, and the officers searched his car and found part of a marijuana cigarette and a small amount of methamphetamine in a wallet on the passenger seat. Id.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddIn these three cases, the officer’s suspicion that alcohol containers were in the vehicle flowed simply from the nature of the offense. Other courts, however, have upheld searches incident to DUI arrest only when there was some other indication that alcohol containers would  be in the vehicle, such as a container of alcohol in plain view of the officer. https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddAbsent these additional indicators that alcohol was being consumed in the vehicle, two courts have determined that a search incident to DUI arrest was unreasonable. In these cases, the courts proposed a hypothetical in which it would be presumptively unreasonable to believe a DUI arrestee had containers of alcohol in the vehicle. In United States v. Reagan, a federal district court said:
[A] police officer observes a patron drink several beers in an establishment in a short period of time. If the police officer then observes the patron leave the establishment, get into a vehicle in the   parking lot, and drive off, the officer has probable cause to pursue the vehicle, effect a traffic stop, and arrest the driver for DUI.
The court believed that Cantrell and Cain implied a “per se” or categorical rule under which “DUI is an offense that, by its very nature, might yield physical evidence.” Under this rule, the court was concerned that an officer would have an unqualified reason to
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddlawfully search the passenger compartment of the vehicle without a warrant even though he has absolutely no reason to believe that evidence of DUI is inside--to the contrary, his firsthand observation of the driver drinking several beers gives him a good reason to believe that no evidence of DUI is contained in the vehicle. This result seems completely contrary to Gant’s statement that a warrantless search of a vehicle’s passenger compartment incident to arrest is lawful when “it is reasonable to believe the vehicle contains evidence of the offense of the arrest.”
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddIThe court held that the officer must have something more than prior experience of finding alcoholic beverage containers in a DUI arrestee’s vehicle to justify a search of the vehicle:
 https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddThe Court acknowledges that a law enforcement  officer’s general prior experience is certainly one of the common sense factors to consider when deciding the reasonableness of his belief that evidence of a specific crime is located inside of a vehicle’s passenger compartment. But in this case, the Court finds that Ranger Garner’s general prior experience alone was not enough to establish a reasonable belief that evidence of DUI was contained within the defendant’s vehicle.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddThe court in dicta suggested what it considered to be additional factors that might justify a search incident to arrest.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddMany different facts may provide a law enforcement officer with reason to believe that evidence of DUI is located inside the passenger compartment of a vehicle. Examples include observations of the driver drinking while driving, observations of an open container of alcohol in plain view inside the passenger compartment, statements made by the occupants of the vehicle indicating that an open container is in the passenger compartment, the smell of alcohol emanating from within the passenger compartment, or indications that the driver was traveling from a location such as a  recreational area or campground where alcohol is not  available unless it is transported in by private vehicle.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174dd; https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174dd
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174dd To be sure, appellee claimed that he had consumed two beers at his sister’s house 2 hr earlier. In light of his obvious intoxication at the time of arrest, there was an objectively reasonable inference that [appellee] was not being truthful about the timing and amount of his drinking. https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddBut that falsehood indicated only that he had been drinking much more recently or in much greater quantities than he had admitted. For example, it might have suggested that he had just left his sister’s house, afterhttps://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174dd drinking many more beers than two. Or that he had recently been drinking at a bar. It did not make it any more likely that he had been drinking in the vehicle.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174dd.
Although we may not be able to reconcile these divergent holdings, it is clear that (1) an officer's training and experience is an important, though not dispositive factor; (2) the lack of any innocent explanation for apparent intoxication in a vehicle may be grounds for reasonable suspicion; and (3) unless there are contrary indications, it is not unreasonable to think an intoxicated driver became intoxicated in the vehicle.

This Case
All three of these factors support the suppression court’s finding that it was reasonable for Mothersell to believe Taylor had alcoholic beverages in his vehicle that would be evidence of his DUI.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddAs a threshold issue, we note that the presence of wholly or partially consumed alcoholic beverage containers in a vehicle, at least where the driver is the sole occupant, is circumstantial evidence of DUI. “A person may not drive or attempt to drive any vehicle while under the influence of alcohol.” Officers may investigate a DUI through a number of means, such as a chemical test incident   to a lawful DUI arrest. Yet officers may also search for evidence of alcoholic containers to establish that the arrestee was under the influence, because in Maryland, a DUI offense may be proved by circumstantial evidence, namely the presence of alcoholic beverages in the vehicle the arrestee had driven and in which he was found to be intoxicated. https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddAs Judge Moylan https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174dd explained, three “partially consumed” beer cans were circumstantial evidence of DUI.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddAt least a partial venue of the spree, moreover, would reasonably appear to have been the automobile. One does not typically drink in the house and then carry the empties out to the car. Some significant drinking, it may be inferred, had taken place while the appellant was in the car.
And in White v. State, we found sufficient evidence of intoxication even though it “arose solely from the results of the field sobriety tests, the arresting officer’s observations of appellant before and after her arrest, appellant’s admission that she had consumed one glass of vodka earlier that afternoon, and the discovery of a full bottle of whiskey in appellant’s vehicle.” 
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddWe now turn to the relevant factors of this case. First, Mothersell clearly  stated that in his experience, “I’ve had several DUI arrests where there’s plenty of open containers left in the vehicle.” Though not dispositive, this experience further establishes the reasonableness of the search. 
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddSecond, there was no innocent explanation for Taylor’s apparent intoxication. Unlike in Ferris, there was no “innocent” explanation for why Taylor or any other driver would be inebriated; any person may have bloodshot eyes while driving late at night, but it is hard to construct a scenario in which a driver would smell of alcohol, have glassy eyes, and would fail sobriety tests lest they had   consumed alcohol. It was clear Taylor had consumed alcohol sometime prior to the arrest; the remaining questions were where, when, and how much.
But during the suppression hearing, no evidence was presented of how much alcohol Taylor had consumed. The first time Mothersell observed Taylor was when  Taylor’s SUV passed him. After that, it became clear to Mothersell that Taylor was under the influence of alcohol, although there was no evidence as to where or when he came under the influence. As part of his search for evidence of the DUI, Mothersell had to determine whether instruments of the offense, the intoxicants, were in Taylor’s vehicle (the only place he knew Taylor had been) or somewhere else, about which Mothersell could only speculate. It was reasonable, in this scenario, to believe that Taylor had been drinking in the place where he was stopped.
The unknown timing surrounding  the encounter further supports the reasonableness of Mothersell’s belief. https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=94565872-4551-481a-9d3e-b51ab8d53244&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5GV0-HG31-F04G-T000-00000-00&pdcomponentid=7707&ecomp=57ttk&earg=sr489&prid=f538eab0-1162-4ac8-89d8-d76fb69174ddIt is also a widely recognized fact that the state of being under the influence of alcoholic beverages is not too temporally removed from the act of drinking the alcoholic beverages. As the U.S. Supreme Court has frequently noted, alcohol dissipates quickly in the body; this fact has long been accepted to justify compulsory blood testing under an “exigent circumstances” theory. It follows logically (and perhaps scientifically) that when alcohol is found or suspected to be in a person, it likely has not been there long. Taylor was apparently DUI in his vehicle; it was not unreasonable to believe, therefore, that he had recently consumed alcoholic beverages.
In addition, it was reasonable to search for additional evidence of inebriation even after Taylor failed the sobriety tests; as Mothersell explained, “I want[ed] to make sure there’s no other alcohol in the vehicle for the probable cause for my DUI stop.” That way, even if Taylor had successfully  challenged a chemical test or the field sobriety tests, the presence of an alcoholic beverage container would have provided additional evidence to establish Taylor’s guilt.
We further note that in Maryland, and particularly in Dorchester County, certain bars will allow their patrons to purchase alcoholic beverages on-site to consume elsewhere. It would not be unreasonable to conclude that a bar patron in Maryland might have left with an intoxicating package good and topped off the night’s consumption on the drive. In sum, it was reasonable for Mothersell to conclude that Taylor’s state of intoxication arose in his vehicle.
Taylor argues that by finding the search of his vehicle to be reasonable, we will usher in a law enforcement regime in which any arrest of a motorist would lead to a search of the vehicle. This fear is unjustified. Our holding is based on the totality of the circumstances here, namely the officer’s experience with inebriated motorists, the temporal nexus between alcohol consumption and inebriation, the fact that Mothersell never observed Taylor drinking  in a bar, and the fact that the presence of open alcoholic beverage containers in a vehicle is a means of proving DUI in Maryland. Accordingly, Mothersell had reason to believe that Taylor would have alcoholic beverages in his vehicle and thus, the search was justified.

You Decide 6.6
United States v. Ivy, 165 F.3d 397 (6th Cir. 1998).
Ivy moved to suppress the evidence obtained during a police search of his residence, claiming that he did not consent to the officers' entry into his house, and that his consent to the search was not voluntary. After an evidentiary hearing, the magistrate judge found that Ivy voluntarily consented both to the officers' entry and their search of his residence and recommended denying Ivy's motion. The district court did not conduct its own evidentiary hearing or make its own. For the reasons set forth below, we REVERSE Ivy's conviction and REMAND this case to the district court for further proceedings consistent with this opinion. On December 19, 1991, Shelby County Sheriff Department Officer Paul Harvey and two other officers went to a house located at 6706 Silhouette in Memphis, Tennessee, based on information that a fugitive, Desi Arnez Hall, was at that location. At the time, Ivy resided at this address. The officers arrived, knocked on the front door, and Ivy opened it. Officer Harvey asked Ivy if he was Desi Arnez Hall, and Ivy replied that he was not. At this point, the testimony of police officers and defense witnesses diverge. According to police witnesses who testified at the suppression hearing, Officer Harvey requested identification from Ivy, and Ivy said that he would have to retrieve it. The officers asked Ivy if he would mind if they came inside. Ivy say "okay," and the officers followed him into the house. There, the officers encountered two other men and a woman. Officer Harvey asked one of the men, later identified as Dennis Dunning, if he was Desi Arnez Hall and Dunning answered he was not. Officer Harvey asked Dunning for identification, which Dunning stated was in his car. The officer asked him to retrieve it. Dunning then fled, running out of the back door of the house. The officers pursued Dunning and caught him in the backyard as he attempted to jump over a fence, and subdued him after a struggle. Pieces of crack cocaine fell out of Dunning's pockets during the skirmish. The officers brought Dunning back into the house. Officer Holloway meanwhile had "secured" the other occupants. In walking back through the house, Officer Harvey found a small quantity of crack cocaine on the floor. He then called for additional officers from the Narcotics Unit. Sergeant Jackie Setliff and Officer Roger Swatzena arrived some time later. An officer advised Ivy and the other individuals at the house, including Ivy's girlfriend, Tina Jones, of their rights under Miranda v. Arizona; Sergeant Setliff then spoke to Ivy and requested his consent to search the house. Ivy did not respond to this request, but asked the sergeant what would happen if he did not consent. Setliff replied that he would attempt to obtain a search warrant. Ivy remained unresponsive. Setliff suspended his conversation with Ivy to attend to other tasks and resumed the conversation 10 min later. The sergeant asked Ivy if he had changed his mind, and when Ivy again did not respond, Setliff contacted his office to make arrangements to obtain a search warrant. A few minutes after this telephone call, Ivy informed the officer that he would provide his consent and signed the consent form. During the entire time that Sergeant Setliff questioned Ivy, Ivy's girlfriend, Tina Jones, was handcuffed to a table, attempting to care for their infant child. After Ivy signed the consent form, the police searched the house. In a bedroom, Officer Harvey found a small quantity of crack cocaine in a dresser drawer and approximately $5,500 in cash in a nightstand. Sergeant Setliff found a set of triple beam scales in one of the bedrooms. Additionally, the police found in a drawer in the kitchen several guns and a cooking tube containing cocaine residue. Based on this evidence, the officers arrested Ivy. According to Ivy and Jones' testimony at the suppression hearing, Officer Harvey did not simply ask Ivy for identification, but rather used physical force to gain entrance. Officer Harvey shoved Ivy against an interior wall, forced his arm behind his back, and demanded some identification. Further, Ivy maintained a full hour and a half passed between the initial request for consent and his signing the consent form. During this time, Jones was handcuffed to the kitchen table by her legs, and at points Officer Holloway took Jones' child from her. Ivy testified that when he first refused to sign the consent form, Sergeant Setliff said "I could be a man about it and sign the consent and let my wife, my fiancee and baby go or I could let them go to jail with me or I could be a fool and let everybody in the house go to jail." After Ivy initially refused, Sergeant Setliff asked Jones to sign a consent to search form. When she also declined to do so, Jones testified, the sergeant told her that refusal to sign would mean the police would take her child away, that she would no longer be able to see the child and that she would go to jail. Immediately after Jones' refusal, the police asked Ivy for a second time to sign the consent form. Again, he refused. Ivy testified that Sergeant Setliff responded that he would obtain a search warrant regardless of Ivy's consent and that "I could be a man about it and just release them and let them not go to jail or I could just be a fool and let everybody go to jail." Finally, upon the police's third request, Ivy acquiesced and signed the form.                              

In its finding of facts, the district court essentially accepted the police version of events and ruled that the evidence obtained in the search of Ivy's house should not be suppressed. The district court, adopting the magistrate judge's report, found that Ivy and Jones were not credible witnesses. It concluded:
[T]he testimony of Officer Harvey is more credible than that of the defendant James Ivy. Officer Harvey and his fellow patrolman were not at the house to look for drugs. They were there to locate Desi Arnez Hall, and did not know whether defendant was Hall or not. There was therefore no incentive for them to enter the house, except to protect themselves and to make sure defendant did not run out the back. At the evidentiary hearing, defendant testified that the $5,500.00 to $5,600.00 found by officers in a night stand in one of the bedrooms was money he and his girl friend had saved, and that he kept it under the night stand to keep it safe from burglars. This is such an incredible story . . . that it taints defendant's credibility in general.
Based on this finding of the relative credibility of the witnesses, the district court adopted the police version of events with regard to Ivy's consent in allowing the officers to enter his house. The district court held "defendant did in fact invite Officer Harvey and his partner into the house, as Harvey testified."
Similarly, the district court concluded that Ivy's consent to search the house was given voluntarily. The court explained:
Sergeant Setliff then went to defendant James Ivy and asked him if he would sign a "consent to search" the premises at 6706 Silhouette. Defendant made no response, and Sgt. Setliff went about doing other things. About five (5) to ten (10) minutes later, Sgt. Setliff again asked defendant if he would sign a "consent to search."
There is a dispute about what next happened . . . 
 . . . [I]t is reasonable to infer that, when defendant asked Sgt. Setliff what would happen if he did not sign the "consent," Sgt. Setliff told him something to the effect that a search warrant would be sought; that all adults in the house (including Tina Jones) would be arrested; and that, since there would be no adults to take care of the child, the child would be taken to the Department of Human Services for care. This would be an appropriate response, since, at the time of the arrest, Sgt. Setliff would have no way of knowing to whom the "crack" cocaine belonged. And, since all adults would be arrested, there would have to be arrangements made to take care of the small child. Thus, this would not be a threat (although defendant James Ivy and Tina Jones would perceive this as placing them on the horns of a dilemma).
Therefore . . . the preponderance of the evidence indicates that the "consent to search" signed by defendant James Ivy was freely and voluntarily given and was not the result of coercion, duress, or submission to a claim of authority. Defendant was presented with a difficult choice (whether to sign and allow Tina Jones to stay with their child at 6706 Silhouette, or whether to refuse to sign, causing Ms. Jones to be arrested and the child to be taken for care and safekeeping by the Department of Human Services). However . . . defendant freely and voluntarily made this choice, without any coercion, duress, or submission to a claim of authority by law enforcement officers.                                               
On appeal, Ivy challenges the district court's ruling on two bases: first, that the district court erred in finding that Ivy consented to the officers' entry into his house; and, second, that the district court erred in finding that Ivy's consent to the police search of his house was given voluntarily. The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses papers and effects, against unreasonable searches and seizures, shall not be violated." This principle generally prohibits the warrantless entry of law enforcement personnel into a person's home. The prohibition does not apply, however, to situations in which voluntary consent has been obtained. It is the government's burden to prove that the consent was freely and voluntarily given. The district court made a finding of fact based upon the credibility of the witnesses it observed at the suppression hearing. Officers Harvey and Setliff testified that Ivy said "okay" when they asked if they could enter this house, and that they did not touch him. The district court believed their testimony over that of Ivy and Jones. The district court's credibility finding carries considerable weight. This Court has noted "[f]indings of fact anchored in credibility assessment are generally not subject to reversal upon appellate review.". Indeed, "when there are two permissible views of the evidence, the fact finder's choice between them cannot be clearly erroneous." In this case, the district court chose between two competing accounts of what happened when the police arrived at 6706 Silhouette. The court adopted the version recounted by Officers Harvey and Setliff and based its determination upon the credibility of different witnesses. In light of the significant fact-finding advantage the district court possessed in its opportunity to observe the demeanor of witnesses and to make critical judgments about their credibility, there is no basis for this Court to find that the district court committed clear error by finding that Ivy consented to the officers' entry into his house. Therefore, the district court's determination that Ivy consented to the officers’ entry into his house is affirmed. 
While the Fourth Amendment protects citizens against unreasonable searches and seizures, a search is not unreasonable if a person with a privacy interest in the item to be searched gives free and voluntary consent. The government bears the burden of proving, through "clear and positive testimony" that the consent to search was given voluntarily. Consent is voluntary when it is "unequivocal, specific and intelligently given, uncontaminated by any duress or coercion." Several factors should be examined in this determination. First, a court should examine the characteristics of the accused, including the age, intelligence, and education of the individual; whether the individual understands the right to refuse to consent; and whether the individual understands his or her constitutional rights. Second, a court should consider the details of the detention, including the length and nature of detention; the use of coercive or punishing conduct by the police, and indications of "more subtle forms of coercion that might flaw [an individual's] judgment." Despite the district court's finding that Ivy's consent was voluntarily given, Ivy argues that, under the totality of the circumstances, his consent was a product of police coercion and was not conferred voluntarily. Given the overwhelming evidence of coercion and intimidation employed by the police in obtaining Ivy's signature on the consent form, we agree that the Government did not meet its burden of proving by clear and positive testimony that Ivy's consent was voluntarily given. As a threshold consideration, the length of detention before consent is a significant factor in any voluntariness determination. Ivy testified at his suppression hearing that approximately one and a half hours passed between the officers' initial request for consent and Ivy's ultimate decision to sign the consent form. At oral argument, counsel for the United States conceded that this estimation was correct. Further, it is undisputed that the entire incident, from the police knocking at the front door until the end of Ivy's videotaped questioning, took from 7–8 hr. The prolonged length of Ivy's detention is particularly significant in light of the nature of his detention. Among other things, the police officers used unlawful threats in order to secure Ivy's consent. The district court found that Sergeant Setliff made statements to the effect that if Ivy did not sign a consent form, everyone in the house, including Ivy's girlfriend, Jones, would go to jail, and that Ivy and Jones' child would be taken into government protective custody. The Government argues that Setliff's statements were lawful references to the fact that the officers could obtain a search warrant. It is true that an "agent's statements to the effect that he would obtain a warrant if [the suspect] did not consent to the search does not taint [the suspect's] consent to a search." Setliff's remarks, however, went far beyond a mere reference to the fact that he could obtain a warrant. Rather, he explicitly stated that if Ivy did not sign the form, he would arrest Ivy's girlfriend and take away their small child. The Government argues that Setliff's statements induced a mere subjective belief in Ivy that the police were coercing him to consent. In this case, Sergeant Setliff was uncertain as to Jones' level of involvement, if any, in the drugs found on the premises when he stated he would arrest her. Under the circumstances, it appears the statements made by Setliff were not merely informative, but were specifically calculated to induce fear and apply pressure. The intimidating nature of Setliff's statement is particularly striking when one considers that Setliff not only threatened to arrest Jones, but also to take Ivy and Jones' child from their custody. Even if Setliff was correct in that both parents were about to be arrested and taken to jail, there were supervision alternatives to state custody, such as having the child stay with a friend or relative. That Setliff stated, unequivocally, that the child would go into government custody if Ivy and Jones did not consent to a search indicates that Setliff was not merely trying to provide Ivy with data upon which to base his decision to consent, but rather was attempting to overcome Ivy's resolution not to consent. Setliff's threat to arrest Jones and, especially, to take her child thus constituted an objectively improper police action per Crowder, significantly intensifying the coercive tenor of the request for consent. Even more disturbing than Sergeant Setliff's foreboding statements are the actions the police took with regard to Jones and her child while awaiting either consent or a warrant to search Ivy's house. The police handcuffed Jones, by her legs, to the kitchen table. At points during the hour and a half while police attempted to induce either Jones or Ivy to sign a consent, the police took Jones' child from her. Jones was finally allowed to keep her child after Ivy signed the consent form. Courts have found that antagonistic actions by the police against a suspect's family taint the voluntariness of any subsequent consent. This Court now finds that such hostile police action against a suspect's family is a factor which significantly undermines the voluntariness of any subsequent consent given by the suspect.                                                
After an hour and a half of this situation--of police threats to arrest Jones and take the child, of Jones being shackled to a table, of the child being taken from his mother's arms, of repeated police solicitations for consent--Ivy finally acquiesced and signed the consent to search form. Perhaps this was a form of coerced chivalry on Ivy's behalf. Perhaps his will was overcome by the time, the threats, the police handling his child, and the sight of his girlfriend chained to a table. One thing is certain: Ivy's consent was not voluntarily imparted; his will was indeed overcome. Given the totality of the circumstances, it is plain that the government did not meet its burden of proving by clear and positive testimony that Ivy gave his consent freely and voluntarily, untainted by any duress or coercion. This Court is "left with the definite and firm conviction that a mistake has been committed." We therefore find that the district court committed clear error when it held that Ivy's consent was voluntarily given and allowed into evidence the fruits of this unlawful search.                                                                                                                “Although there is always a temptation in cases of this nature . . . to let the end justify the means," we must suppress the evidence collected from this unlawful search for several critical reasons. First, this Court must remain vigilant in its role as a guardian of the Constitution and its protections. We are bound to defend the liberties of even the most despised members of society, for it is in their cases that our freedoms are most at risk. 
 
You Decide 6.7
United States v. Taylor, 600 f.3d 678 (6th Cir. 2010).
After apprehending Mark Taylor on a state warrant for his arrest, law enforcement officers received permission from the female tenant of the apartment where he was found to search the premises. They discovered a closed shoebox labeled for a pair of men's basketball shoes. The shoebox was surrounded  and partially covered by men's clothing and lay in the corner of a closet in a spare bedroom that contained additional men's clothes. Acting without a search warrant and without making further inquiry, the  officers opened the shoebox. The shoebox contained a handgun and ammunition that belonged to Taylor.
Upon being charged with being a felon in possession of a firearm and ammunition, Taylor moved to suppress the contents of the shoebox. The district court, after conducting an evidentiary hearing, granted Taylor's motion and suppressed evidence of the gun and the ammunition. For the reasons set forth below, we AFFIRM the judgment of the district court.
I. Background
In March 2008, members of the Northern Ohio Violent Fugitive Task Force received information that Taylor was at an apartment in Elyria, Ohio. The task force officers had an outstanding warrant for Taylor's arrest based on a state offense, but did not have a search warrant for the apartment. Arriving at the apartment, the officers were met by Sabrina Arnett, the permanent tenant. The officers informed Arnett that they were looking for Taylor. Arnett initially denied that Taylor was in the apartment, but she gave the officers permission to search for him inside. She then admitted that Taylor was, in fact, in the apartment. The officers found Taylor on the second floor in the master bedroom, clad only in his underwear.
After arresting and handcuffing Taylor, the officers brought him down to the first floor, where Arnett had remained. The officers then asked Arnett for permission to search the apartment. She gave both verbal and written permission for the search. As described by one of the officers, the purpose of the search was to look for "any other stuff . . . [because] we suspected Taylor might have had some weapons because of his history." This suspicion--that Taylor might have a firearm--may explain why the task force members at the scene included agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives. In any event, the officers did not ask for Arnett's permission to search Taylor's belongings, nor did they ask Taylor for such permission.
 When the officers had been on the second floor earlier to arrest Taylor, they had noticed men's clothes lying about in a spare bedroom. The officers returned to the spare bedroom during the subsequent search of the apartment and discovered that it contained a closet. This closet was strewn with men's clothes, children's clothes, and toys. On the floor of the closet, in a corner, the officers found a closed shoebox with a label indicating that it was for a pair of Nike brand Air Jordan men's basketball shoes, size ten-and-a-half. The shoebox was partially covered by a   piece of men's clothing. Inside the shoebox, the officers discovered a handgun and ammunition, as well as a jail-identification bracelet belonging to Taylor.
After discovering the shoebox containing the handgun and ammunition, the officers interviewed Arnett, asking if anyone lived with her in the apartment. Arnett informed the police that Taylor did not live with her, but that she allowed him to store his belongings in the spare bedroom where the shoebox was found. No one else stored things in her apartment besides Taylor. Arnett stated that she "didn't really use the closet" where the shoebox was found; she used it only to store "stuff she had when [she] was a kid." The officers never asked Arnett if Taylor had given her permission to look through his personal belongings. According to Arnett, Taylor never granted her permission to look in the shoebox. He had been storing his possessions in the spare bedroom for roughly a month when the police arrived and had, at least initially, paid Arnett for allowing him to store his possessions there.
Taylor was subsequently indicted by a federal grand jury for being a felon in possession of a firearm and ammunition. His counsel filed a motion to suppress the incriminating items found in the shoebox, arguing that the evidence was the product of an illegal search. The district court conducted an evidentiary hearing on the motion. Three members of the task force testified, along with Arnett. After taking the matter under advisement, the district court issued an order granting the motion to suppress.
The district court made several key findings in its order. First, the court determined that Arnett did not have actual or common authority to consent to a search of Taylor's belongings because Taylor had not granted Arnett access to his property. Next, the court held that Arnett did not have apparent authority to consent to a search of the shoebox. The   court reasoned that because the spare bedroom and the closet contained men's clothes and because the shoebox was partially covered with a piece of men's clothing, the ownership of the shoebox was ambiguous. In reaching this conclusion, the court found that the task force officers in fact believed that the shoebox belonged  to Taylor when they opened it.
The government now appeals the grant of the motion to suppress.

B. Apparent authority
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78Taylor concedes that Arnett, as the apartment's tenant, gave permission to the law enforcement officers to search the premises. In the spare bedroom, the officers found a closed but unsealed shoebox belonging to Taylor, which they opened and thereby discovered the incriminating evidence. Such searches are constitutionally permissible if the government can "show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the . . . effects sought to be inspected." In the district court, the government argued that Arnett had actual or   common authority over Taylor's shoebox. The court rejected the government's claim, finding that Taylor exercised exclusive control over the shoebox and never gave Arnett permission to open it.
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78On appeal, the government has dropped its argument that Arnett had any such actual or common authority. Instead, the sole argument it now asserts is that Arnett had apparent authority to consent to a search of the shoebox. The apparent authority doctrine excuses otherwise impermissible searches where the officers conducting the search "reasonably https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78 (though erroneously) believe that the person who has consented" to the search had the authority to do so. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78This court's decision in United States v. Waler, 426 F.3d 838 (6th Cir. 2005), a case that both parties and the district court discuss in detail, further explains the apparent authority doctrine:
When one person consents to a search of property owned by another, the consent is valid if the facts available to the officer at the moment . . . warrant a man of reasonable caution [to believe] that the consenting party had authority over the premises. Whether the facts presented at the time of the search would warrant a man of reasonable caution to believe the third party has common authority over the property depends upon all of the surrounding circumstances. The government cannot establish that its agents reasonably relied upon a third party's apparent authority if agents, faced with an ambiguous situation, nevertheless proceed without making further inquiry. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78If the agents do not learn enough, if the circumstances make it unclear whether the property about to be searched is subject to mutual use by the person giving consent, then warrantless entry is unlawful without further inquiry. Where the circumstances presented would cause a person of reasonable caution to question whether the third party has mutual use of the property, warrantless entry without further inquiry is unlawful.
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78 Moreover, "[t]he government bears the burden of establishing the effectiveness of a third party's consent." 
The government in the present case argues that Arnett had apparent authority to consent to a search of the shoebox because a shoebox is not the type of container that commands a "high ] degree of privacy," unlike luggage and footlockers. Furthermore, the government emphasizes that other items besides men's clothes were in the closet, including children's clothes and toys. Taylor responds that there is no per se rule that certain containers provide no expectation of privacy. He argues that the circumstances as a whole demonstrate that the ownership of the shoebox was at the very least ambiguous, and that the officers made no inquiry to resolve the ambiguity.
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78Utilizing the standard in Waller, we find Taylor's and the district court's analysis more compelling than the government's. Concededly, the officers began the search with the reasonable belief that most items within the apartment were subject to Arnett's mutual use, given that she was the sole tenant of the apartment. The officers, however, had noticed men's clothes in the spare bedroom when they arrested Taylor. This would indicate to a reasonable officer that the clothing might belong to a visitor or a guest like Taylor.
Upon conducting a full search of the apartment, the officers found more men's clothes in the spare bedroom's closet. This again indicated that someone besides Arnett was using this space--most  likely Taylor because he was found in a nearby bedroom in his underwear. Although Arnett had no children, the closet in the spare bedroom contained a mix of children's clothes, toys, and men's clothes. Underneath an item of men's clothing lay the closed shoebox. In short, nothing in the closet indicated that the items within it belonged to Arnett or were regularly used by her. Under these circumstances, when the officers discovered and were considering whether to open the shoebox, a reasonable person would have had substantial doubts about whether the box was subject to mutual use by Arnett.
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78Our conclusion is further reinforced by the district court's factual finding that "the police would likely not have opened the closed shoebox if they believed it belonged to Arnett. Rather, they opened the shoebox precisely because they believed it likely belonged to Taylor." Such a factual finding--that the officers believed the shoebox belonged to Taylor before they opened it--further strengthens Taylor's argument that a reasonable officer in these circumstances would have had substantial doubts about whether the shoebox was mutually used by both Taylor and Arnett. Although many items that belong  to a houseguest like Taylor might also be used by the dwelling's resident (such as books, compact discs, magazines, or a portable stereo), a shoebox that is surrounded by the guest's clothes and that sits in the corner of a closet in a little-used room is not likely to be such an item. We review the above factual finding under the clear error standard, and the government has, in fact, not contested that finding.
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78Comparing the facts of the present case to those in Waller solidifies our conclusion. In that case, Waller stored a suitcase and several filled garbage bags at a friend's apartment. His friend had never looked in the luggage or the garbage bags and did not know what Waller was storing in them. After Waller was arrested for violating the conditions of his bail bond, his friend gave the police permission to search the apartment. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78 The police found Waller's suitcase in a closet, opened it, and discovered two guns inside. Id. Waller's motion to suppress was denied by the district court, but this court reversed, holding that whether Waller's suitcase was "subject to mutual use" by Waller's  friend was unclear under the circumstances. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78As a result, Waller's friend did not have apparent authority to consent to the search of the suitcase. 
The case before us presented the officers with even more ambiguities than did Waller. There, the main argument for ambiguity was that the police found a packed suitcase and were told that Waller was storing items in his friend's apartment. But there is no description in Waller of where the suitcase was found, other than in "a closet," or whether the suitcase was next to other items that obviously belonged to Waller or whose ownership was unclear. Here, the appearance of the shoebox itself and the items in the room where the shoebox was found indicated that the box did not belong to Arnett. There were apparently no such surrounding items in Waller, yet this court still suppressed the contents of Waller's suitcase.
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78Furthermore, this court in Waller noted that "[t]he expectation of privacy in one's luggage is not lessened by storing it on the premises of a third-party. Rather, the 'expectations may well be at their most intense when such effects are deposited temporarily or kept semi-permanently   . . . in places under the general control of another’." A shoebox is concededly not "luggage," but it is an often-used storage container, and Taylor unquestionably had stored his shoebox in Arnett's apartment. Arnett also testified that she had never looked in the shoebox and did not have permission from Taylor to do so.
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78Additional support for the district court's conclusion that there was ambiguity about mutual use of the shoebox is found in Waller's discussion of the Tenth Circuit's decision in United States v. Salinas-Cano. The Tenth Circuit in Salinas-Cano suppressed the results of a search of luggage that the defendant had left at his girlfriend's apartment, even though she had given the police specific consent to search the luggage. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78 https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78In its analysis, the Tenth Circuit noted several factors that it took into consideration: (1) the type of container and whether that type "historically command[ed] a high degree of privacy," (2) whether the container's owner took any precautions to protect his privacy, (3) whether the   resident at the premises initiated the police involvement, and (4) whether the consenting party disclaimed ownership of the container. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78Applying these factors,
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78[t]he Tenth Circuit held the search of the suitcase unlawful because it was a type of container long associated with privacy expectations, the defendant had . . . never permitted his girlfriend to look inside the suitcase, he had not abandoned the suitcase but instead maintained a periodic presence in the apartment, and the agents had not questioned his girlfriend in a manner sufficient to determine whether she had mutual use of the defendant's suitcase.
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78An analysis of these factors leads us to the same conclusion in the present case. Although shoeboxes do not "historically command a high degree of privacy," they are often used to store private items, such as letters and photographs. Taylor took precautions to manifest his expectations of privacy by closing the shoebox, putting it in the corner of a closet in a little-used room, partially covering it with an item of his clothing, and not granting Arnett permission to look inside. Like the defendant in Salinas-Cano, Taylor had not abandoned the shoebox, and in fact appeared to be staying at Arnett's apartment, at least temporarily. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78 Nor did Arnett initiate the involvement by the police in any way. "Courts have generally been more forgiving of searches" that are conducted upon the initiative of the dwelling's permanent resident). https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78Finally, similar to the facts in Salinas-Cano, the officers here never questioned Arnett about whether she had mutual use or control of the shoebox. 
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78The government responds by insisting that the present case compares favorably to this court's unpublished opinion in United States v. Cork. But the facts of Cork are inapposite. In that case, law enforcement officers received permission to search the home where Cork was staying from the home's owner, Cork's aunt. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78Cork was sharing a bedroom with his cousin, his aunt's 16-year-old son. Officers searched the bedroom, including the contents of numerous shoeboxes    underneath   the cousin's bed. Id. One of those shoeboxes contained evidence that incriminated Cork. Beginning with the most obvious factual distinction, the shoebox in Cork that contained the incriminating evidence was found underneath the bed of Cork's cousin, not his own. Given the perfectly reasonable assumption that items stored underneath a person's bed usually belong to that person, this fact alone strongly distinguishes Cork. Circumstances in the present case indicated that the shoebox belonged to Taylor and, in fact, the district court found that the officers believed that the shoebox was Taylor's before they opened it. In Cork, however, the shoebox's location alone strongly indicated that it belonged to Cork's cousin, not Cork himself.
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78Another key distinction is that Cork's aunt had apparent authority to grant permission for the officers to search the unlocked bedroom and unsecured possessions of her minor son. This strongly contrasts with the present case because Taylor was storing his  belongings in an unrelated person's apartment, where expectations of privacy are much greater. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78The closest Cork comes to supporting the government's argument is the decision's observation that "[w]hile a sealed container or locked suitcase may be entitled to a heightened expectation of privacy, here Cork did not seal, tape, or lock the shoebox." Likewise, Taylor's shoebox was not sealed, and a shoebox is not a container that historically has enjoyed heightened expectations of privacy. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78But this does not equate to a per se rule that shoeboxes are never entitled to expectations of privacy in the Fourth Amendment context. Rather, we must consider the entirety of "the facts available to the officer at the moment" of his decision. Here, those facts demonstrate that there was ambiguity as to whether Arnett had mutual use or control of the shoebox found in the closet.
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78The parties also compare the present case to this court's decision in United States v. Purcell. In that case, law enforcement officers arrested Purcell outside of a hotel room that he had rented with his girlfriend. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78After the girlfriend gave consent for the officers to search the room, they opened a bag that she had said was hers. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78That bag, however, contained only men's clothes. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78The agents nevertheless continued to search through the various bags in the room, finally discovering a firearm in a backpack. Id. Purcell was the sole user of the backpack. Id. This court held that, after the officers discovered that the girlfriend had wrongly asserted that the first bag was hers, "ambiguity clouded [her] authority to consent to a search of the backpack." https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78The facts        are comparable to those in the present case because the officers here found Taylor's clothes on and around the shoebox, like the officer who   found that the bag that Purcell's girlfriend had claimed was hers in fact contained   Purcell's clothes. In Purcell, the discovery of his clothes created ambiguity about the girlfriend's authority to consent to a search of any further bags. Id. The discovery of Taylor's clothes in the spare bedroom and in the closet created a similar ambiguity regarding Arnett's ability to consent to the search of the shoebox.
This court noted in Purcell that "[o]nce ambiguity erases any apparent authority, it is not difficult for searching officers to reestablish the would-be-consenter's authority," explaining that the officers could have resolved the ambiguity by simply asking the girlfriend, who was standing outside, what bags she was using. A similar situation existed in the present case. While the officers were searching the spare bedroom, Arnett and Taylor were within easy reach downstairs. Upon finding the closed shoebox in the closet of an unused room with men's clothes on and around it and believing that the shoebox was likely Taylor's, the officers could easily have gone downstairs and asked Arnett "to clarify her authority over" the shoebox, or asked Taylor if the shoebox was his. See id. But they chose not to do so. Nor, of course, did they pause to obtain a proper search warrant.
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78In sum, given all of the circumstances surrounding the search of the shoebox, the district court's factual finding that the officers believed that the shoebox likely belonged to Taylor, the favorable comparison to this court's decisions in Waller and Purcell and to the Tenth Circuit's decision in Salinas-Cano, and the factual contrast with Cork, we conclude that there was ambiguity over whether Arnett had mutual use or control of the shoebox. The officers failed to cure this ambiguity by asking either Arnett or Taylor to clarify the situation. As a result, Arnett lacked apparent authority to consent to the search of the shoebox.
or all of the reasons set forth above, we AFFIRM the judgment of the district court.

Dissent by: Kethledge
The majority today extends to shoeboxes a degree of Fourth Amendment protection that our court has previously afforded to luggage. I agree that our precedents permit this extension, but I do not think they compel it. I dissent because I think the extension unwise.
The apartment's tenant here gave consent for the officers to search it. I think that consent ought to be effective as to an unsecured container on the premises, absent a clear indication that some other person exclusively controls the container. Luggage might routinely meet that test, but shoeboxes I think should not, absent some unusual circumstance not present here. It should take more than a shoebox to vitiate a resident's consent to search the premises.
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78I am not alone in this general view. Writing for the court in United States v. Melgar, Judge Wood observed:
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78In a sense, the real question for closed container searches is which way the risk of uncertainty should run. Is such a search permissible only if the police have positive knowledge that the closed container is also under the authority of the person who originally consented to the search (Melgar's view), or is it permissible if the police do not have reliable information that the container is not under the authorizer's control? We are not  aware of any case that has taken the strict view represented by the first of these possibilities.
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78Judge Wood chose the second approach, observing that "[a] contrary rule would impose an impossible burden on the police. It would mean that they  could never search closed containers within a dwelling (including hotel rooms) without asking the person whose consent is being given ex ante about every item they might encounter." I too would follow Judge Wood's second approach. Our court today follows something much like the first.
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=f987761e-41f8-4763-9b9e-4e4950335307&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A7Y79-X0J0-YB0V-J04Y-00000-00&pdpinpoint=PAGE_679_1107&pdcontentcomponentid=6390&pddoctitle=Taylor%2C+600+F.3d+at+679%2C+682&ecomp=Lg85k&prid=3394830c-636a-4c85-8fa6-97d9ffa85b78The circuits are split on this issue. In addition to the Seventh Circuit, the Second has followed more or less the rule I advocate here. Even our court has come out the other way in another shoebox case that I think materially indistinguishable from this one. Cases in still other circuits are admittedly to the contrary. To my knowledge, the Supreme Court has never decided specifically the extent to which a resident's consent to search her premises is effective as to containers within   it. The result has been appreciable entropy among the circuits.
I respectfully dissent.

Chapter 7: Inspections and Regulatory Searches
You Decide 7.1
Mills v. District of Columbia, 571 F.3d 1034 (D.C.Cir. 2009).
The neighborhood safety zone (NSZ) program was created by the Metropolitan Police Department (MPD) in response to the violence that has plagued the Trinidad neighborhood in Northeast Washington, D.C. for many years. Before this case arose, Trinidad had recently been the scene of 25 assaults involving firearms, five of which resulted in deaths and six of which involved the use of vehicles. Shortly after a triple homicide in the Trinidad neighborhood on May 31, 2008, the MPD designated a portion of the neighborhood an NSZ. Pursuant to MPD Special Order 08-06, issued June 4, 2008, MPD implemented the program and erected 11 vehicle checkpoints over the course of 5 days at locations around the perimeter of the NSZ. This first implementation of the checkpoints took place from June 7 to June 12, 2008. On July 19, 2008, nearly a month after appellants commenced this action in the district court, the Commander of MPD’s Fifth District, in response to a series of violent attacks that morning in Trinidad, requested and was granted approval for another NSZ in the Trinidad neighborhood. This second implementation of the NSZ program originally was to run from July 19 to July 24, but was extended until July 29, 2008.                                                  
     During the first implementation of the NSZ program, Special Order 08-06 set forth the parameters of the program. According to the Special Order, the original primary purpose of the program was “to provide high police visibility, prevent and deter crime, safeguard officers and community members, and create safer District of Columbia neighborhoods.” This Special Order also governed the police officers’ conduct at the checkpoints during the first implementation of the NSZ checkpoint program. According to the Special Order, motorists were to receive advance notice of checkpoints, which were to be marked with signs around the borders of the NSZ as well as “barricades, lights, cones, and/or flares.” Officers were to stop all vehicles attempting to gain access to the NSZ area. Officers were not to stop vehicles attempting to leave the NSZ area without particularized suspicion. Officers were also not to stop individuals seeking to enter the NSZ area on foot. When motorists attempting to gain entry into the NSZ area were stopped at the checkpoint, officers were required to identify themselves to motorists and inquire whether the motorists had “legitimate reasons” for entering the NSZ area. Legitimate reasons for entry fell within one of six defined categories: the motorist was (1) a resident of the NSZ; (2) employed or on a commercial delivery in the NSZ; (3) attending school or taking a child to school or day care in the NSZ; (4) related to a resident of the NSZ; (5) elderly, disabled, or seeking medical attention; and/or (6) attempting to attend a verified organized civic, community, or religious event in the NSZ. If the motorist provided the officer with a legitimate reason for entry, the officer was authorized to request additional information sufficient to verify the motorist’s stated reason for entry into the NSZ area. Officers denied entry to those motorists who did not have a legitimate reason for entry, who could not substantiate their reason for entry, or who refused to provide a legitimate reason for entry.
Motorists who failed to provide sufficient information were refused entry into the neighborhood in their vehicles, although motorists were not charged with a criminal offense if they failed to provide a legitimate reason for entry. Officers could not conduct a search of a stopped vehicle unless individualized suspicion developed during a stop. During the first implementation of the NSZ program, only one arrest was made at a Trinidad NSZ checkpoint; the arrest was for driving while in possession of an open container of alcohol. Forty-eight of 951 vehicles stopped during the June checkpoints were refused entry. The record does not indicate whether any arrests were made during the second implementation of the program.                                                                                                      
      Between the first and second implementation of the NSZ checkpoints, but after this action commenced, the District revised its Special Order governing the program. Though the six “entry-sufficient” categories remained the same, the District, understandably concerned with running afoul of the Fourth Amendment, tweaked its approach to implementing the program. Significantly, the revised Special Order established that motorists should be asked for identification only if they claimed to be residents of the NSZ in order to verify their residency. The revised Special Order also provided that information given by the motorist need only be “reasonably sufficient” to verify the motorist’s reasons for entry. The primary purpose of the NSZ program remained similar despite the revisions to other areas of the program. The revised Special Order, however, clarified that “[t]he [revised] primary purpose of an NSZ is not to make arrests or to detect evidence of ordinary criminal wrongdoing, but to increase protection from violent criminal acts, and promote the safety and security of persons within the NSZ by discouraging–and thereby deterring–persons in motor vehicles from entering the NSZ intending to commit acts of violence.”
Appellants Caneisha Mills, Linda Leaks, and Sarah Sloan were among the 48 motorists denied entry at an NSZ checkpoint during the first implementation of the NSZ checkpoints between June 7 and June 12, 2008.1 Each appellant was denied entry in their vehicle on account of their refusal to provide certain information. Mills refused to provide personal information regarding her identity and intended activities in the NSZ; Leaks refused to provide details about her political activity and intended community organizing; and Sloan refused to provide information about a political meeting she wished to attend.
In a press conference held on July 19, 2008, MPD Police Chief Cathy Lanier stated that she would continue to utilize NSZs “until a judge orders [her] to stop.” On June 20, 2008, the appellants filed a class action complaint seeking declaratory, injunctive, and compensatory relief. The appellants asserted that the NSZ checkpoints constituted unconstitutional seizures in violation of the Fourth Amendment. The district court denied the appellants’ motion for a preliminary injunction, holding that the appellants failed to establish irreparable harm or a likelihood of success on the merits. This appeal followed.
II. ANALYSIS
Appellants argue that the district court erred in denying their motion for a preliminary injunction against the District’s imposition of the NSZ Program. To prevail, appellants “must ‘demonstrate 1) a substantial likelihood of success on the merits, 2) that [they] would suffer irreparable injury if the injunction is not granted, 3) that an injunction would not substantially injure other interested parties, and 4) that the public interest would be furthered by the injunction’.” Katz v. Georgetown Univ., 246 F.3d 685, 687-88 (D.C. Cir. 2001) (quoting CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995)). A district court must balance the strength of a plaintiff’s arguments in each of the four elements when deciding whether to grant a preliminary injunction. “If the arguments for one factor are particularly strong, an injunction may issue even if the arguments in other areas are rather weak.” CityFed Fin. Corp., 58 F.3d at 747. Accordingly, “[a]n injunction may be justified, for example, where there is a particularly strong likelihood of success on the merits even if there is a relatively slight showing of irreparable injury.” Id. (citing Population Inst. v. McPherson, 797 F.2d 1062, 1078 (D.C. Cir. 1986)). “We review a district court decision regarding a preliminary injunction for abuse of discretion, and any underlying legal conclusions de novo.” Katz, 246 F.3d at 688. We will overturn any of the district court’s factual findings only upon a finding of clear error. Cobell v. Norton, 391 F.3d 251, 256 (D.C. Cir. 2004) (citing City of Las Vegas v. Lujan, 891 F.2d 927, 931 (D.C. Cir. 1989)).
A. Likelihood of Success on the Merits
Appellants’ likelihood of success on the merits is dependent upon the strength of their constitutional challenge to the checkpoint program. The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” U.S. Const. amend. IV. Without question, a seizure occurs when a vehicle is stopped at a police checkpoint. Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 450 (1990); United States v. Martinez-Fuerte, 428 U.S. 543, 556 (1976) (“[C]heckpoint stops are ‘seizures’ within the meaning of the Fourth Amendment.”). The Fourth Amendment, however, only proscribes those seizures that are unreasonable. U.S. Const. amend. IV. Therefore, this issue turns on whether the stops of the appellants in connection with the NSZ program were unreasonable.
The constitutionality of police checkpoints is not a new controversy. Indeed, the courts of the District of Columbia have previously considered a prior roadblock program by this same police department in the same Trinidad neighborhood. See Galberth v. United States, 590 A.2d 990 (1991). There is ample guidance for our review from the Supreme Court.
In United States v. Martinez-Fuerte, the Court considered the constitutionality of the suspicionless routine stops of vehicles at checkpoints on major roads leading away from the border. The Court held “that stops for brief questioning routinely conducted at permanent checkpoints are consistent with the Fourth Amendment and need not be authorized by warrant.” Martinez-Fuerte, 428 U.S. at 566. In the discussion of the constitutional question, the Court noted that “the need for [the judgment of a neutral magistrate] is reduced when the decision to ‘seize’ is not entirely in the hands of the officer in the field, and deference is to be given to the administrative decisions of higher ranking officials.” Id. The Court also discussed the reason for the search, that is, “[i]nterdicting the flow of illegal entrance from Mexico.” Id. at 552. In the end, while determining that the checkpoint stops were not unconstitutional, the Court noted that “[t]he principal protection of Fourth Amendment rights at checkpoints lies in appropriate limitations on the scope of the stop.” Id. at 566-67. The Court further explicitly declared that “our holding today is limited to the type of stops described in this opinion.” Id. at 567. Obviously, the facts before the Court in a border protection stop are far different than those before this court today. However, the Supreme Court has offered further guidance.
In Brown v. Texas, 443 U.S. 47 (1979), the Supreme Court considered the constitutionality of a police stop that, while not literally at a roadblock or checkpoint, was sufficiently analogous to generate an analysis that has been instructive in roadblock cases. In Brown, cruising police officers stopped two pedestrians, one of whom was the eventual Supreme Court litigant, in an area with a high incidence of drug traffic. Although one officer testified that “the situation ‘looked suspicious and we had never seen that subject in that area before’,” the officers did not offer any specific suspicion or any reason to believe the subjects were armed. Id. at 49. The police demanded that the subjects identify themselves. One refused and asserted that the officers had no right to stop him. The officers charged him under a Texas statute which made “it a criminal act for a person to refuse to give his name and address to an officer ‘who has lawfully stopped him and requested the information’.” Id. In determining the constitutionality of the stop in that case, the Court offered analysis instructive in all further cases involving a suspicionless stop constituting a seizure but short of arrest. The Court concluded that “[c]onsideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Id. at 50-51. Although we doubt that the checkpoint in this case would have survived constitutional scrutiny under the Brown analysis, later Supreme Court pronouncements speaking directly to issues of checkpoint seizure constitutionality make that result even more clearly compelled.
Most plainly controlling of the case before us is the Supreme Court decision in City of Indianapolis v. Edmond, 531 U.S. 32 (2000). In Edmond, the Court considered a checkpoint program conducted by the City of Indianapolis in an effort to interdict unlawful drugs. Under the stipulated facts of the case, officers operating pursuant to directions issued by the chief of police would for a limited period of time stop all vehicles without particularized suspicion, look for signs of impairment, conduct an open view examination of the vehicle from the outside, and have a narcotics-detection dog walk around the outside of each stopped vehicle. After observing that “[a] search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing,” the Court observed that “we have recognized only limited circumstances in which the usual rule does not apply.” Edmond, 531 U.S. at 37. The Court recognized that it had in the past upheld the constitutionality of a checkpoint stop for border protection, see Martinez-Fuerte, supra, and “a sobriety checkpoint aimed at removing drunk drivers from the road,” id. (citing Sitz, 496 U.S. 444). But the Court stressed that “[w]e have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.” Edmond, 531 U.S. at 41. The Court then concluded that “[b]ecause the primary purpose of the Indianapolis checkpoint program is ultimately indistinguishable from the general interest in crime control, the checkpoints violate the Fourth Amendment.” Id. at 48. It is this rule which governs the present case, and as the purpose of the NSZ checkpoint program is not immediately distinguishable from the general interest in crime control, appellants’ argument that the seizures were unconstitutional appears headed for ultimate victory.
The District argues that the primary purpose of the NSZ program as found by the district court--deterring violent, vehicle-facilitated crime--does not fit within the unconstitutional category of checkpoint stops for purposes “ultimately indistinguishable from the general interest in crime control.” Instead, the District argues, this case is governed by Illinois v. Lidster, 540 U.S. 419 (2004). In Lidster, police set up a highway checkpoint and stopped motorists for the purpose of asking them for information about a hit-and-run accident that had occurred approximately 1 week earlier at the same time and place. One stopped motorist, Lidster, was arrested for driving under the influence of alcohol. The Illinois Supreme Court held the stop unconstitutional, believing that Edmond compelled that result. The U.S. Supreme Court made clear that it did not.                                                                                                                                                 
      The District seizes on language from the Lidster opinion to argue that that case and not Edmond is controlling. The District argues that because the Lidster opinion noted that the “general language” in Edmond should be read “as referring in context to circumstances similar to the circumstances then before the Court and not referring to quite different circumstances that the Court was not then considering,” the NSZ checkpoint stop should be upheld, as were the inquiry stops in Lidster rather than struck down as unconstitutional, as were the drug interdiction stops in Edmond. We think it apparent from the face of the checkpoint programs involved that the stop before us is far more like the stop in Edmond than in Lidster.                                                                               
      The Edmond stop sought to detect and deter crimes involving narcotics. The NSZ stop seeks to deter violent crimes involving motor vehicles. This would seem a distinction without a difference. In each instance, the interest of the police was in general crime control, not directed to any particular suspicion or a particular crime. In neither case was there reason for the stop unrelated to the crime control purpose. The reason for stopping the individuals in each case was the possibility, without individualized suspicion, that the driver stopped might be the potential perpetrator of an as-yet undetected, perhaps uncommitted, crime. Both of these sets of facts seem to fit equally within the rubric of “general interest in crime control.” Lidster is unlike either one. The police in Lidster were investigating a crime that they knew to have occurred. They were not looking for suspects. As the Lidster Court stated, “information-seeking highway stops are less likely to provoke anxiety or to prove intrusive,” than the investigative checkpoint considered in Edmond. As the Court stressed, “[f]urther, the law ordinarily permits police to seek the voluntary cooperation of members of the public in the investigation of a crime.” The Lidster Court then reiterated the longstanding proposition that “‘law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen’.” In short, the NSZ stop has nothing in common with the stop upheld in Lidster and everything in common with the unconstitutional stop in Edmond.                                            
      Refining the argument slightly, the District contends that the Supreme Court’s category of stops serving “the general interest in crime control” extends only to seizures actually looking for evidence of crime as opposed to seizures designed to deter crime. That argument is unconvincing. Nothing in Edmond limited “the general interest in crime control” to only those instances where a law enforcement officer was seeking evidence of a crime. In Edmond, the Court recognized that a general rule exists that “a seizure must be accompanied by some measure of individualized suspicion,” and that “only limited circumstances [exist] in which the usual rule does not apply.” The Court stressed that the only suspicionless checkpoints previously upheld were those checkpoint programs that were “designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety.” By automatically proscribing suspicionless checkpoints with a primary purpose of serving “the general interest in crime control,” the Court was concerned with placing a “check on the ability of the authorities to construct roadblocks for almost any conceivable law enforcement purpose.” The District’s argument, however, turns this paradigm on its head. Under the District’s interpretation, individualized suspicion is only required when a law enforcement officer is searching for evidence of criminal wrongdoing. Any suspicionless checkpoint program therefore would be allowed so long as its primary purpose did not involve actively seeking evidence of criminal wrongdoing. The individualized suspicion requirement is the rule under the Fourth Amendment, not the exception. Accordingly, we cannot read “the general interest in crime control” so restrictively as to encompass only those checkpoints in which law enforcement officers were seeking evidence of criminal wrongdoing.                                                                                                                              
     Without doubt, the Edmond Court did not intend the proscription of checkpoints whose primary purpose was “general interest in crime control” to be limited to those seeking narcotics, or other evidence. Instead, the Court used the phrase in what would appear to be its natural and usual sense to include investigation and deterrence. Indeed, when this court has been confronted with constitutional challenges to police checkpoints, it has consistently treated the purpose of deterring ordinary criminal activity like drug crime as indistinguishable from the purpose of detecting such activity in the context of suspicionless roadblocks.                                                                                                                   
     In short, appellants’ likelihood of success on the merits is strong.                                              
     We further conclude that appellants have sufficiently demonstrated irreparable injury, particularly in light of their strong likelihood of success on the merits. The harm to the rights of appellants is apparent. It cannot be gainsaid that citizens have a right to drive upon the public streets of the District of Columbia or any other city absent a constitutionally sound reason for limiting their access. As our discussion of the likelihood of success has demonstrated, there is no such constitutionally sound bar in the NSZ checkpoint program. It is apparent that appellants’ constitutional rights are violated. It has long been established that the loss of constitutional freedoms, “for even minimal periods of time, unquestionably constitutes irreparable injury.” Granted, the District is not currently imposing an NSZ checkpoint, but it has done so more than once, and the police chief has expressed her intent to continue to use the program until a judge stops her.                      
      In short, we conclude that appellants have established the requisites for the granting of a preliminary injunction. They have made a particularly strong showing of the substantial likelihood of success on the merits and that they would suffer irreparable injury if the injunction is not granted. The district court did not address the other two elements of the preliminary injunction test. Accordingly, we reverse the district court and remand for further proceedings.

You Decide 7.2
Johnston v. Tampa Bay Sports Authority, 530 F.3d 1320 (11th Cir. 2007)
Per Curiam:
https://advance.lexis.com/document/crb/?pdmfid=1000516&crid=c28abdee-3519-4ccc-8e79-52554e112b70&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4SSR-JWV0-TXFX-G2MX-00000-00&pdcomponentid=6395&ecomp=Lg75k&earg=crb0&prid=910f47a7-4f6a-4f5b-baff-1b2a62ea3700Upon reconsideration of that Opinion, we vacate our prior Opinion and substitute the following revised Opinion in its place. 
The issue before the Court is whether the District Court erred when it refused to vacate a Florida state court's order enjoining Appellant Tampa Sports Authority's (the "Authority") policy of conducting pat-down searches of all ticket holders seeking to attend Tampa Bay Buccaneers (the "Buccaneers") games at the Raymond James Stadium in Tampa, Florida (the "Stadium"). We conclude that Appellee Gordon Johnston consented to the searches. The District Court thus erred in not reconsidering   and vacating the preliminary injunction. Accordingly, we reverse and remand for further proceedings consistent with this Opinion. 

In September 2005, the Authority instituted a policy requiring brief pat-down searches of all persons attending Buccaneers football games. Johnston is a Buccaneers season ticket subscriber who first became a season ticket holder in 2001. The season ticket is, on its face, a revocable license for entry to the Stadium to attend Buccaneers games.
The Stadium is operated by the Authority, a Florida public entity. The Authority grants the Buccaneers, a franchise of the National Football League (the "NFL"), use of the Stadium pursuant to a Stadium Agreement (the "Agreement"). The Agreement provides that the Authority remains responsible for stadium security during Buccaneers games and obligates the Authority to "make proper rules and regulations for use of the Stadium with regard to all Stadium Events, provided, however, that the content of such rules and regulations shall be reasonably consistent with the rules and regulations enacted for other NFL stadia . . . ."
In February 2002, the NFL first implemented a policy requiring pat-down searches for Super Bowl XXVII and other special events. In August 2005, the NFL Commissioner expanded the policy to require pat-down searches of all patrons entering NFL stadiums. The NFL requires the pat-down policy to protect members of the public who attend NFL games. The NFL concluded that NFL stadiums are attractive terrorist targets based on the publicity that would be generated by an  attack at an NFL game. The pat-down search policy focuses on the detection of improvised explosive devices ("IED") which might be carried on a person entering a stadium. These pat-down searches currently are conducted at all NFL events except at the Stadium, where they have been enjoined.
On August 24, 2005, the Buccaneers informed the Authority of the NFL-mandated pat-down searches as a condition for admission to NFL events. On September 13, 2005, the Authority, upon the urging of representatives from the NFL and the Buccaneers, approved a policy to conduct limited above-the-waist pat-down searches of all persons attending Buccaneers football games. The Authority does not require pat-down searches for patrons attending its other non-NFL events at the Stadium, including University of South Florida football games.
The pat-down searches are conducted by outside screeners hired by the Authority. The Authority and the Buccaneers share the expense of the screeners and the Authority oversees how the searches are conducted. 
Consistent with the policy urged by the NFL, the pat-down searches at the Stadium focus on the detection of IEDs. At each admission gate, screeners ask people entering the Stadium to hold their arms out to their side, palms up. Screeners inspect the individual for wires, detonators, or other telltale signs of an IED. Screeners then run their hands lightly along the sides of the torso and down the spine. If the individual's skin is exposed, screeners do not make contact with it. If the individual has large pockets, the screener may ask him or her to empty them for review of any items. Female inspectors conduct searches on females, and male inspectors inspect males. Anyone who refuses to be patted down is denied entry to the Stadium.
Johnston was aware of the pat-down policy before the first game of the 2005 season. Press releases announcing the initiation of the pat-down policy were published in the media, on the Buccaneers' website, and in a direct communication to season ticket holders. Stadium employees distributed notices about the pat-down policy to cars entering the Stadium parking lot before games. Announcements were made over loudspeakers outside of the Stadium before games, advising those who approached the Stadium that pat-downs would be conducted at the entrances. Multiple signs were placed along common walking routes, including those from parking areas to the Stadium, announcing the pat-down policy.
Johnston called the Buccaneers' office before the first game of the 2005 season to discuss the pat-down search policy. Johnston objected to the policy and claimed that he was told that the Buccaneers would not refund the cost of season tickets based solely on his objections. He stated later he would not have accepted a refund even if offered. Having been advised of the policy, Johnston nonetheless presented himself and his ticket at an entrance to the Stadium on three occasions. On each occasion, a screener advised Johnston that a pat-down search would be performed. Johnston verbally objected to the pat-down but allowed it to be conducted so that he could attend the games. After attending the second game, Johnston sued the Authority in state court seeking to enjoin the searches. Johnston attended a third game after filing suit, and, after offering his objection, he again submitted to a pat-down search. After the third game, the Florida state court enjoined the searches, and Johnston attended subsequent games without being subjected to the search.
On October 13, 2005, Johnston filed suit against the Authority and Henry G. Saavedra in the Circuit Court for the Thirteenth Judicial Circuit of Florida. Johnston challenged the constitutionality of the pat-down searches under the Florida Constitution. Johnston sought declaratory and injunctive relief prohibiting the searches. On November 2, 2005, the state court found the searches unconstitutional under the Florida Constitution and entered a preliminary injunction halting the searches.
The Authority appealed the ruling, and the preliminary injunction automatically was stayed under Florida Rule of Appellate Procedure. Johnston moved the Thirteenth Judicial Circuit of Florida to vacate the automatic stay. His motion was denied. Johnston filed an emergency motion with the Florida Second District Court of Appeals to vacate the stay. On November 4, 2005, the Second District Court of Appeals granted Johnston's motion and vacated the stay, thus reinstating the preliminary injunction halting the searches.
On November 3, 2005, Johnston amended his  complaint to add a claim that the searches violated the Fourth Amendment. On November 30, 2005, the Authority moved the case to the United States District Court for the Middle District of Florida. On December 12, 2005, the Authority moved the District Court to reconsider and vacate the injunction issued by the state court. The District Court denied the motion, finding that Johnston did not consent to the pat-down searches and that the searches violated the Florida Constitution and the Fourth Amendment. This appeal followed.
https://advance.lexis.com/document/crb/?pdmfid=1000516&crid=c28abdee-3519-4ccc-8e79-52554e112b70&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4SSR-JWV0-TXFX-G2MX-00000-00&pdcomponentid=6395&ecomp=Lg75k&earg=crb0&prid=910f47a7-4f6a-4f5b-baff-1b2a62ea3700As the District Court observed, this case "is not about the wisdom of the pat-down policy, whether the average Buccaneers fan supports or objects to the pat-down searches, or whether a judge believes the pat-downs are wise." The issue in this case is whether Johnston has shown a substantial likelihood of succeeding on the merits of his claim that the pat-down searches violate his rights under the constitutions of Florida and the United States.
https://advance.lexis.com/document/crb/?pdmfid=1000516&crid=c28abdee-3519-4ccc-8e79-52554e112b70&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4SSR-JWV0-TXFX-G2MX-00000-00&pdcomponentid=6395&ecomp=Lg75k&earg=crb0&prid=910f47a7-4f6a-4f5b-baff-1b2a62ea3700The District Court analyzed whether to vacate the injunction under our standards for granting a preliminary injunction. A party seeking a preliminary injunction must demonstrate that (1) he has a substantial likelihood of success on the merits, (2) irreparable injury will be suffered absent an injunction, (3) the injury to the movant outweighs the injury the proposed injunction would cause to the opposing party, and (4) the proposed injunction would serve the public interest. https://advance.lexis.com/document/crb/?pdmfid=1000516&crid=c28abdee-3519-4ccc-8e79-52554e112b70&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4SSR-JWV0-TXFX-G2MX-00000-00&pdcomponentid=6395&ecomp=Lg75k&earg=crb0&prid=910f47a7-4f6a-4f5b-baff-1b2a62ea3700The District Court found that Johnston had met his burden in showing a substantial likelihood of success on the merits of his constitutional claims and that the preliminary injunction would serve the public interest. We find that the District Court abused its discretion by misapplying the consent exception to warrantless searches, and we review the District Court's legal conclusions de novo.
https://advance.lexis.com/document/crb/?pdmfid=1000516&crid=c28abdee-3519-4ccc-8e79-52554e112b70&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4SSR-JWV0-TXFX-G2MX-00000-00&pdcomponentid=6395&ecomp=Lg75k&earg=crb0&prid=910f47a7-4f6a-4f5b-baff-1b2a62ea3700Johnston asserts that the pat-down searches at issue are invalid under both the Florida and U.S. constitutions. In evaluating Johnston's claim under the Florida Constitution, we are compelled to apply the facts of this case to Florida constitutional law as interpreted by the Florida Supreme Court and, absent a contrary ruling by the Florida Supreme Court, Florida's intermediate appellate courts. https://advance.lexis.com/document/crb/?pdmfid=1000516&crid=c28abdee-3519-4ccc-8e79-52554e112b70&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4SSR-JWV0-TXFX-G2MX-00000-00&pdcomponentid=6395&ecomp=Lg75k&earg=crb0&prid=910f47a7-4f6a-4f5b-baff-1b2a62ea3700Artice I, Section 12 of the Florida Constitution and the Fourth Amendment to the U.S. Constitution afford protections against "unreasonable searches and seizures." As the text of the Florida Constitution's search and seizure provision explains, the Florida Constitution affords the same protections against unreasonable searches and seizures as the Fourth Amendment, and Florida courts follow opinions of the U.S. Supreme Court in interpreting the Florida Constitution's search and seizure protections. ("This Court is bound to follow the opinions of the U.S. Supreme Court concerning Fourth Amendment search and seizure issues."). Our analysis of Johnston's claims under the Fourth Amendment therefore applies equally to Johnston's claims under the Florida Constitution.
https://advance.lexis.com/document/crb/?pdmfid=1000516&crid=c28abdee-3519-4ccc-8e79-52554e112b70&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4SSR-JWV0-TXFX-G2MX-00000-00&pdcomponentid=6395&ecomp=Lg75k&earg=crb0&prid=910f47a7-4f6a-4f5b-baff-1b2a62ea3700The U.S. Supreme Court has consistently held that under the Fourth Amendment, "a search conducted without a warrant issued upon probable cause is 'per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions’." "It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search   that is conducted pursuant to consent."
https://advance.lexis.com/document/crb/?pdmfid=1000516&crid=c28abdee-3519-4ccc-8e79-52554e112b70&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4SSR-JWV0-TXFX-G2MX-00000-00&pdcomponentid=6395&ecomp=Lg75k&earg=crb0&prid=910f47a7-4f6a-4f5b-baff-1b2a62ea3700Whether consent is voluntary is a fact question determined according to the totality of the circumstances. Consent is determined on a case-by-case basis. https://advance.lexis.com/document/crb/?pdmfid=1000516&crid=c28abdee-3519-4ccc-8e79-52554e112b70&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4SSR-JWV0-TXFX-G2MX-00000-00&pdcomponentid=6395&ecomp=Lg75k&earg=crb0&prid=910f47a7-4f6a-4f5b-baff-1b2a62ea3700; https://advance.lexis.com/document/crb/?pdmfid=1000516&crid=c28abdee-3519-4ccc-8e79-52554e112b70&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4SSR-JWV0-TXFX-G2MX-00000-00&pdcomponentid=6395&ecomp=Lg75k&earg=crb0&prid=910f47a7-4f6a-4f5b-baff-1b2a62ea3700Both the federal and Florida courts have enumerated non-exhaustive lists of factors to be considered in performing the analysis. We have previously identified the following non-exhaustive factors to consider in determining voluntariness: whether the person is in custody, the existence of coercion, the person's awareness of his or her right to refuse consent, the person's education and intelligence, and whether the person believes incriminating evidence will be found. https://advance.lexis.com/document/crb/?pdmfid=1000516&crid=c28abdee-3519-4ccc-8e79-52554e112b70&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4SSR-JWV0-TXFX-G2MX-00000-00&pdcomponentid=6395&ecomp=Lg75k&earg=crb0&prid=910f47a7-4f6a-4f5b-baff-1b2a62ea3700Florida courts look for the existence of express or implied consent and consider the following implied consent factors: (1) whether the defendant was aware his or her conduct would subject him or her to search, (2) whether the search was supported by a "vital interest," (3) whether the searching officer had apparent authority to search and arrest, (4) whether the defendant was advised of his or her right to refuse, and (5) whether refusal would result in a deprivation of a benefit or right. https://advance.lexis.com/document/crb/?pdmfid=1000516&crid=c28abdee-3519-4ccc-8e79-52554e112b70&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4SSR-JWV0-TXFX-G2MX-00000-00&pdcomponentid=6395&ecomp=Lg75k&earg=crb0&prid=910f47a7-4f6a-4f5b-baff-1b2a62ea3700Consent is not voluntary if the government conditions receipt of a right or a benefit on the relinquishment of a constitutional right. 
https://advance.lexis.com/document/crb/?pdmfid=1000516&crid=c28abdee-3519-4ccc-8e79-52554e112b70&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4SSR-JWV0-TXFX-G2MX-00000-00&pdcomponentid=6395&ecomp=Lg75k&earg=crb0&prid=910f47a7-4f6a-4f5b-baff-1b2a62ea3700For the purposes of our analysis of whether this warrantless search was unconstitutional under the U.S. and Florida constitutions, we accept the District Court's conclusion that the search was performed by agents of the State. The question then is whether the District Court abused its discretion in misapplying the consent exception to the facts of this case. We hold that Johnston voluntarily consented to the pat-down searches and thus has not shown a substantial likelihood of success on the merits. 
Johnston knew well in advance that he would be subjected to a pat-down search by the Authority if he presented himself at an entrance to the Stadium to be admitted to a Buccaneers game. That is, he chose to submit voluntarily to the search on two occasions, stating only a verbal objection followed by his submission to the pat-down search process and his ultimate entry into the Stadium to watch Buccaneers football games.
https://advance.lexis.com/document/crb/?pdmfid=1000516&crid=c28abdee-3519-4ccc-8e79-52554e112b70&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4SSR-JWV0-TXFX-G2MX-00000-00&pdcomponentid=6395&ecomp=Lg75k&earg=crb0&prid=910f47a7-4f6a-4f5b-baff-1b2a62ea3700The factors we enumerated in United States v. Blake demonstrate the voluntariness of Johnston's consent. Johnston was not in custody at the time of the search, rather he presented himself willingly at the search point. The screeners did not coerce Johnston; they merely performed the search to which Johnston submitted. Johnston was well aware of his right to refuse to submit to the pat-down search and did in fact express his objection to the searches to specific screeners and over the telephone to the Buccaneers before the searches were implemented. At the search point, Johnston pulled his shirt up (apparently to show that he was not wearing an IED) and asked not to  be patted down. When screeners insisted on the pat down before permitting Johnston to enter, Johnston elected to be patted down and thereby gain entrance to the Stadium. Johnston appears from the record to be a man of heightened intelligence and well-educated. The record shows he did not believe that the search would disclose incriminating evidence, as shown by his attempt to show screeners he was not carrying any suspicious devices under his shirt.
Johnston also impliedly consented to the search under the factors for implied consent developed by Florida courts. Johnston was well aware that his insistence in entering the Stadium would cause him to be subject to a search. The record also reflects that Johnston was aware of his ability to refuse to be searched and leave the Stadium. There is no evidence that the Authority would have detained Johnston if he refused, or that Johnston otherwise believed the searches to be compulsory.
https://advance.lexis.com/document/crb/?pdmfid=1000516&crid=c28abdee-3519-4ccc-8e79-52554e112b70&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4SSR-JWV0-TXFX-G2MX-00000-00&pdcomponentid=6395&ecomp=Lg75k&earg=crb0&prid=910f47a7-4f6a-4f5b-baff-1b2a62ea3700We also conclude the searches supported a "vital interest." The NFL and the Buccaneers instituted the pat-down policy specifically to guard against mass casualties at NFL games from a potential terrorist attack. We cannot doubt the NFL's interest in protecting its  patrons. Unlike the searches for drugs, bottles, and cans considered in Iaccarini, the pat-down searches in this case supported an interest well beyond general law enforcement. https://advance.lexis.com/document/crb/?pdmfid=1000516&crid=c28abdee-3519-4ccc-8e79-52554e112b70&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4SSR-JWV0-TXFX-G2MX-00000-00&pdcomponentid=6395&ecomp=Lg75k&earg=crb0&prid=910f47a7-4f6a-4f5b-baff-1b2a62ea3700The NFL quite clearly instituted the pat-down policy with the intent of preventing terrorist attacks and ensuring the safety of persons in the Stadium. ("We agree that the interest in protecting the performers from projectiles is a 'vital interest' that would justify a search for those items which could be used as projectiles.").
https://advance.lexis.com/document/crb/?pdmfid=1000516&crid=c28abdee-3519-4ccc-8e79-52554e112b70&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4SSR-JWV0-TXFX-G2MX-00000-00&pdcomponentid=6395&ecomp=Lg75k&earg=crb0&prid=910f47a7-4f6a-4f5b-baff-1b2a62ea3700The District Court found that the consent exception did not apply in this case, in  part because of the "unconstitutional condition" doctrine developed by federal and Florida courts. "The doctrine of unconstitutional conditions prohibits terminating benefits, though not classified as entitlements, if the termination is based on motivations that other constitutional provisions proscribe." The District Court erred in its application of the unconstitutional condition doctrine because in this case the condition for entry was imposed by the NFL and the Buccaneers, both private entities, and not the government. As we noted, Johnston did not have any right or entitlement to enter the Stadium. His purchase of a ticket granted him at most a revocable license to a seat. As is typical of sporting events, the NFL and the Buccaneers explicitly retained the right to exclude him from the Stadium for any reason. The NFL chose to impose a pat down as a condition for entry. Although the Authority acquiesced to the NFL's requests by hiring screeners to conduct pat downs, the conclusion that this policy was the NFL's--and not the Authority's--condition for entry is reinforced by the Authority's security measures at other non-NFL events at the Stadium, including collegiate football games, where the Authority does not conduct pat downs.
https://advance.lexis.com/document/crb/?pdmfid=1000516&crid=c28abdee-3519-4ccc-8e79-52554e112b70&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4SSR-JWV0-TXFX-G2MX-00000-00&pdcomponentid=6395&ecomp=Lg75k&earg=crb0&prid=910f47a7-4f6a-4f5b-baff-1b2a62ea3700In other cases where we have used the unconstitutional conditions doctrine to invalidate consent, we found that it was the government imposing the condition and performing the search (magnetometer searches instituted by city policy). Several courts have analyzed the "unconstitutional conditions" doctrine with respect to entry to large public gatherings such as rock concerts. https://advance.lexis.com/document/crb/?pdmfid=1000516&crid=c28abdee-3519-4ccc-8e79-52554e112b70&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4SSR-JWV0-TXFX-G2MX-00000-00&pdcomponentid=6395&ecomp=Lg75k&earg=crb0&prid=910f47a7-4f6a-4f5b-baff-1b2a62ea3700In each of these cases, a government search upon entry was unconstitutional because it required the patron to choose between assertion of his constitutional rights and losing paid admission to the concerts. In each of these cases, the entity imposing the condition was the government itself. In this case, the government had no role in formulating or mandating the pat-down policy. The policy exists solely because of the NFL's mandate. Because the condition for entry was imposed by a private party, Johnston was not forced by the government to choose between assertion of his constitutional rights and obtaining a benefit to which he was entitled. The NFL's condition does not invalidate Johnston's voluntary consent to the pat downs. The unconstitutional conditions doctrine does not apply to these searches required by a private entity.
Considering the totality of the circumstances, the Court concludes that Johnston voluntarily consented to pat-down searches each time he presented himself at a Stadium entrance to attend a game. The record is replete with evidence of the advance notice Johnston was given of the searches including preseason notice, pregame notice, and notice at the search point itself. It was clear error for the District Court to find that Johnston did not voluntarily consent to the pat-down searches. or the reasons stated above, we find under the unique circumstances here that the District Court abused its discretion in making its preliminary finding that Johnston did not consent to the pat-down searches and that Johnston had a right to attend games that was unconstitutionally infringed. Upon de novo consideration of the District Court's conclusions of law, we hold that Johnston has not shown a substantial likelihood of success on the merits of his constitutional claims under the Florida and U.S. constitutions. Accordingly, we REVERSE the decision of the District Court and REMAND for further proceedings consistent with this Opinion.
SO ORDERED.

You Decide 7.3
Highhouse v. Wayne Highands School Dist, 205 F. Supp.3d 639 (M.D. Pa. 2016).
Memorandum
This case arises from a high school vice principal and a teacher's strip search of a male student. On February 11, 2014, plaintiff, a 16-year-old high school student, attended Honesdale High School located in Wayne County, Pennsylvania. Plaintiff alleges that Defendants Gordon West and John Kretschmer, a high school teacher and vice principal, respectively, received a complaint from another student, M.O. Specifically, M.O. advised Defendants West and Kretschmer that he could not find $250, which he left in the gym locker room. 
Defendants West and Kretschmer summoned plaintiff, confined him to a room, and questioned him regarding the missing $250. At some point during the questioning, Defendants West and Kretschmer directed plaintiff to remove his clothing down to his underwear. Plaintiff complied and stripped down to his underwear. Defendants West and Kretschmer next pulled on the elastic waistband of plaintiff's underwear, exposing plaintiff's pubic and anal areas. The complaint is silent regarding whether Defendants West and Kretschmer recovered the missing $250.
Plaintiff claims that Defendants West and Kretschmer subjected him to an unlawful search and seizure in violation of his Fourth Amendment rights. These defendants contend that plaintiff has not pled sufficient facts to reasonably infer that they unlawfully searched and seized plaintiff. After a careful review, the court agrees with plaintiff.
The Fourth Amendment protects against state officials conducting unlawful searches and seizures. 
To establish a Fourth Amendment unlawful search and seizure claim against a public school, the plaintiff must allege the following two elements: (1) a search and seizure occurred and (2) the search and seizure are unreasonable under the circumstances. Here, the parties do not dispute Defendants West and Kretschmer searched and seized plaintiff. Rather, the parties disagree regarding whether the search and seizure were unreasonable.
In 2009, the Supreme Court of the United States decided Safford Unified School District #1 v. Redding, which addressed the constitutional rule for searches and seizures in the public school setting. In Safford, the Supreme Court reaffirmed its general rule regarding school searches and seizures, stating that a court must apply "a standard of reasonable suspicion to determine the legality of a school administrator's search of a student[.]." Specifically, "a school search ‘will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction’." Stated differently, school officials may search if what they know creates only "a moderate chance of finding evidence of wrongdoing"--that is, evidence of violating school rules, such as a ban on having drugs. 
Safford, however, also created a new rule pertaining to strip searches. In Safford, the school administrators required the female student, standing in a school office in her underwear, to "pull out" her bra and the elastic band on her underpants for inspection. Addressing the administrator's testimony that they did not see any of the student's exposed chest or public areas, the Supreme Court noted that the constitutionality of the search "does not depend upon who was looking and how much was seen." Significantly, the school required this student to expose her private areas "to some degree," which is a search "categorically distinct" under the constitution, "requiring distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings." 
To establish this new constitutional rule pertaining to school authorities strip searching students, the Supreme Court first addressed the student's subjective expectation of privacy. The Court noted that strip searches objectify students and demean and degrade their inherent human dignity "as embarrassing, frightening, and humiliating." Furthermore,
The reasonableness of [a student's] expectation (required by the Fourth Amendment standard) is indicated by the consistent experiences of other young people similarly searched, whose adolescent vulnerability intensifies the patent intrusiveness of the exposure. The common reaction of these adolescents simply registers the obviously different meaning of a search exposing the body from the experience of nakedness or near undress in other school circumstances. Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts may be[.] 
To justify this kind of intrusion, the Supreme Court held that school officials must have some evidence that the drug or other item they suspect is being hidden by the student is dangerous in terms of its "power or quantity," or must have some reason to suppose that the forbidden item is hidden in a student's underwear. In short, for a school search to be reasonable 
The constitution "requires the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts." This is so because "[t]he meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions," plaintiff alleges that Defendants West and Kretschmer lacked both kinds of information prior to conducting a strip search. First, the missing $250 posed no danger, in terms of its power or quantity, to the students or school administrators. Unlike a weapon or drugs, currency, such as the $250, cannot be used as a means to inflict physical harm or damage to students or school employees. Second, Defendants West and Kretschmer had no reason to believe that students hide money in their underwear. Viewing plaintiff's allegations as true, plaintiff has adequately pled that Defendants West and Kretschmer's strip search on February 11, 2014 may have violated his Fourth Amendment rights.

You Decide 7.4.
Doe v. Little Rock School District, 380 F.3d 340 (8th Cir. 2004)
Arnold, Circuit Judge.
This case requires us to decide whether the practice of the Little Rock School District (LRSD) that subjects secondary public school students to random, suspicionless searches of their persons and belongings by school officials is unconstitutional. We conclude that such searches violate the students' Fourth Amendment rights because they unreasonably invade their legitimate expectations of privacy.
     Jane Doe is a secondary school student in the LRSD. One day during the school year, all of the students in Ms. Doe's classroom were ordered to leave the room after removing everything from their pockets and placing all of their belongings, including their backpacks and purses, on the desks in front of them. While the students were in the hall outside their classroom, school personnel searched the items that the students had left behind, including Ms. Doe's purse, and they discovered marijuana in a container in her purse. The parties have stipulated that LRSD has a practice of regularly conducting searches of randomly selected classrooms in this manner.
     In her amended complaint, Ms. Doe, individually and on behalf of a class of "all secondary public school students who have started seventh grade in the [LRSD] as of the 1999–2000 school year," claimed that this method of conducting searches is unconstitutional and sought declaratory and injunctive relief pursuant to 42 U.S.C. Section 1983. After certifying the case as a class action, the district court entered judgment for the LRSD and dismissed the complaint with prejudice. We reverse.
      The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. The Fourteenth Amendment extends this constitutional guarantee to searches by state officers, including public school officials. "In carrying out searches . . . school officials act as representatives of the State, not merely as surrogates for the parents, and they cannot claim the parents' immunity from the strictures of the Fourth Amendment." "Reasonableness" is "the touchstone of the constitutionality of a governmental search," and the relevant constitutional question in school search cases is "whether the search was reasonable in all the circumstances." In determining whether a particular type of school search is constitutionally reasonable, we engage in a fact-specific "balancing" inquiry, under which the magnitude of the government's need to conduct the search at issue is weighed against the nature of the invasion that the search entails. "On one side of the balance are arrayed the individual's legitimate expectations of privacy and personal security; on the other, the government's need for effective methods to deal with breaches of public order."                                                    
       The Supreme Court has developed a framework designed to make the required balancing of privacy and security interests somewhat less amorphous than it might otherwise be. A reviewing court is to consider first the "scope of the legitimate expectation of privacy at issue," then the "character of the intrusion that is complained of," and finally the "nature and immediacy of the governmental concern at issue" and the efficacy of the means employed for dealing with it. The district court addressed each of these considerations in turn and decided that they all supported the conclusion that the search practice involved in this case was reasonable. In particular, the district court stated in its order that LRSD students have only a "limited privacy interest," and that the search practice is "minimally intrusive, is preceded by adequate notice, is motivated by a significant policy concern, and is directed towards an immediate, legitimate need." Given these determinations, the district court held that "the search policy" was constitutional because it "reasonably serves the school district's important interest in detecting and preventing drug use among its students." In reaching this conclusion, the district court relied heavily on two recent cases in which the Supreme Court upheld school district policies that allowed only those students who agree to be subject to random drug testing to participate in school athletics or other competitive extracurricular activities.
       After reviewing the reasonableness issue de novo, we conclude that the district court underestimated the extent to which the LRSD's search practice intrudes upon its students' legitimate privacy interests and overestimated the substantiality of the LRSD's factual showing that such an intrusion was necessary to address a significant difficulty in the schools. Students presumptively have a legitimate, though limited, expectation of privacy in the personal belongings that they bring into public schools. Because subjecting students to full-scale, suspicionless searches eliminates virtually all of their privacy in their belongings, and there is no evidence in the record of special circumstances that would justify so considerable an intrusion, we hold that the search practice is unconstitutional.
      We ask first whether secondary public school students in the LRSD retain any legitimate expectations of privacy. The district court, noted that a "'student's privacy interest is limited in a public school environment where the State is responsible for maintaining discipline, health, and safety’." Students in public schools do indeed have lesser expectations of privacy than people generally have in public situations, due in large part to the government's responsibilities "as guardian and tutor of children entrusted to its care." Public school students' privacy interests, however, are not nonexistent. We think it is clear that schoolchildren are entitled to expect some degree [of privacy in the personal items that they bring to school.
      As a general matter, "the Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view," and public school students thus retain a protection against "unreasonable" searches of their backpacks and purses by school officials. Schoolchildren have a legitimate need to bring items of personal property into their schools, which are their "homes away from home" where they are required by compulsory attendance laws to spend a substantial portion of their waking hours. They "at a minimum must bring to school not only the supplies needed for their studies, but also keys, money, and the necessaries of personal hygiene and grooming," and they may also carry with them "such nondisruptive yet highly personal items as photographs, letters, and diaries." Unlike prisoners, who "retain no legitimate expectations of privacy in their cells" after having been convicted and incarcerated, public school students have traditionally been treated as presumptively responsible persons entitled to some modicum of privacy in their personal belongings, at least to the extent that recognition of such privacy interests does not unduly burden the maintenance of security and order in schools.
      The Supreme Court has observed that there is a tension between the types of privacy "interests protected by the Fourth Amendment and the interest of the States in providing a safe environment conducive to education in the public schools" and has concluded that the fourth amendment allows school officials some flexibility in resolving this tension. But it has characterized as "severely flawed" a state's argument that "because of the pervasive supervision to which children in the schools are necessarily subject, a child has virtually no legitimate expectation of privacy in articles of personal property 'unnecessarily' carried into a school.". While the Court has acknowledged that students' privacy rights are limited due to the "difficulty of maintaining discipline in the public schools," and that "drug use and violent crime in the schools have become major social problems," it has stated that "the situation is not so dire that students in the schools may claim no legitimate expectations of privacy."
     It is true that the legitimate expectation of privacy retained by members of certain subpopulations of a public school's student body falls below the already limited baseline level of privacy afforded to public school students generally. For instance, the Supreme Court has analogized students who voluntarily participate in school athletics or other competitive extracurricular activities to adults who choose to participate in a "closely regulated industry," in that both groups voluntarily subject themselves to "intrusions upon normal rights and privileges, including privacy." Sports and other competitive extracurricular activities usually have separate systems of rules that do not apply to the student body as a whole and often involve such requirements as mandatory physicals, frequent communal undress, and traveling and lodging in close confines. By consciously choosing to "go out for the team" or other competitive extracurricular endeavor, such students agree to waive certain privacy expectations that they would otherwise have as students in exchange for the privilege of participating in the activity. But the search regime at issue here is imposed upon the entire student body, so the LRSD cannot reasonably claim that those subject to search have made a voluntary trade-off of some of their privacy interests in exchange for a benefit or privilege.
      As the district court noted, a passage that was added to the LRSD's current Secondary Student Rights and Responsibilities Handbook, which is distributed to students at the beginning of the school year, provides that "book bags, backpacks, purses and similar containers are permitted on school property as a convenience for students," and that "if brought onto school property, such containers and their contents are at all times subject to random and periodic inspections by school officials." But we do not think that this handbook passage has effected a waiver by LRSD students of any expectations of privacy that they would otherwise have. The students are required by state law to attend school and have not entered into a contract that incorporates the handbook or voluntarily assented to be bound by its terms. The lack of mutual consent to the student handbook makes it fundamentally different from an employee handbook, which may create an enforceable contract between an employer and employee under traditional contract principles. The LRSD may not deprive its students of privacy expectations protected by the Fourth Amendment simply by announcing that the expectations will no longer be honored.
     Given that public school students retain some legitimate expectation of privacy in their persons and belongings, we are bound to inquire into the character of the intrusion that the LRSD's search practice imposes. We respectfully disagree with the district court's determination that the search practices of the LRSD are "minimally intrusive."
     Unlike the suspicionless searches of participants in school sports and other competitive extracurricular activities that the Supreme Court approved in Vernonia and Earls, in which "the privacy interests compromised by the process" of the searches were deemed "negligible," Vernonia, 515 U.S. at 658, see Earls, 536 U.S. at 832-33, the type of search at issue here invades students' privacy interests in a major way." A search of a child's person or of a closed purse or other bag carried on her person, no less than a similar search carried out on an adult, is undoubtedly a severe violation of subjective expectations of privacy. Students often carry items of a personal or private nature in their pockets and bags, and many students (whether or not they are carrying contraband) must surely feel uncomfortable or embarrassed when officials decide to rifle through their personal belongings.
      Whatever privacy interests the LRSD students have in the personal belongings that they bring to school are wholly obliterated by the search practice at issue here, because all such belongings are subject to being searched at any time without notice, individualized suspicion, or any apparent limit to the extensiveness of the search. Full-scale searches that involve people rummaging through personal belongings concealed within a container are manifestly more intrusive than searches effected by using metal detectors or dogs. Indeed, dogs and magnetometers are often employed in conducting constitutionally reasonable large-scale "administrative" searches precisely because they are minimally intrusive and provide an effective means for adducing the requisite degree of individualized suspicion to conduct further, more intrusive searches. The type of search that the LRSD has decided to employ, in contrast, is highly intrusive, and we are not aware of any cases indicating that such searches in schools pass constitutional muster absent individualized suspicion, consent or waiver of privacy interests by those searched, or extenuating circumstances that pose a grave security threat.
      Another relevant consideration is the purpose for which the fruits of the searches at issue are used. In Vernonia and Earls, which involved drug testing of voluntary participants in competitive extracurricular activities, the results of the searches at issue were never disclosed to law enforcement authorities, and the most serious form of discipline that could possibly result from failing the tests was exclusion from the relevant extracurricular activities. The Court in Earls found that "the limited uses to which the test results are put" contributed significantly to a conclusion that the invasion of the students' privacy was insignificant. In sharp contrast to these cases, the fruits of the searches at issue here are apparently regularly turned over to law enforcement officials and are used in criminal proceedings against students whose contraband is discovered. In fact, Ms. Doe was convicted of a misdemeanor as a result of the search of her purse. Because the LRSD's searches can lead directly to the imposition of punitive criminal sanctions, the character of the intrusions is qualitatively more severe than that in Vernonia and Earls. Rather than acting in loco parentis, with the goal of promoting the students' welfare, the government officials conducting the searches are in large part playing a law enforcement role with the goal of ferreting out crime and collecting evidence to be used in prosecuting students.
      We consider finally the nature and immediacy of the governmental concerns that gave rise to the searches at issue here. A sliding scale is used in evaluating the reasonableness of a search, that is, the government is entitled to inflict more serious intrusions upon legitimate expectations of privacy as the governmental interest served by the intrusions becomes more compelling. A governmental interest need not meet some "fixed, minimum quantum of governmental concern," but merely has to be "important enough to justify the particular search at hand," considering the degree of its intrusiveness. The district court determined that the LRSD's search practice is "directed towards an immediate, legitimate need." It failed, however, to point to any evidence indicating that the LRSD has experienced any significant and immediate difficulties sufficient to give rise to a special need for such an unprecedented practice.
    We conclude that the LRSD has in fact failed to demonstrate the existence of a need sufficient to justify the substantial intrusions upon the students' privacy interests that the search practice entails. While the LRSD has expressed some generalized concerns about the existence of weapons and drugs in its schools, it conceded at oral argument that there is nothing in the record regarding the magnitude of any problems with weapons or drugs that it has actually experienced. All schools surely have an interest in minimizing the harm that the existence of weapons and controlled substances might visit upon a student population, but public schools have never been entitled to conduct random, full-scale searches of students' personal belongings because of a mere apprehension.
      In both Vernonia and Earls, the principal cases relied on by the LRSD, the school districts offered particularized evidence to "shore up" their assertions of a special need to institute administrative search programs for extracurricular-activity participants. In Vernonia, the record demonstrated that "a large segment of the student body, particularly those involved in interscholastic athletics, was in a state of rebellion," "disciplinary actions had reached 'epidemic proportions’," and "the rebellion was being fueled by alcohol and drug abuse." The Court emphasized, moreover, that the school district had particularly compelling safety concerns because its "athletes were the leaders of the drug culture" and "drug use increases the risk of sports-related injury." Similarly, in Earls, the school district had "presented specific evidence of drug use" at its schools, leading to the district court's finding that the school district was "faced with a 'drug problem' when it adopted the policy."
       We have upheld a blanket school search somewhat like the one at issue here when school officials had received specific information giving them reasonable grounds to believe that the students' safety was in jeopardy. In Thompson, 87 F.3d at 980, 982-83, we determined that a single "generalized but minimally intrusive search" of all male students in the sixth through twelfth grades for knives and guns was "constitutionally reasonable" because "fresh cuts" on the seats of a school bus and student reports that there was a gun at the school that morning provided particularized evidence that there were dangerous weapons present on school grounds. In Thompson, as in Earls and Vernonia, random, suspicionless searches by school officials were deemed reasonable only after a specific showing was made that not engaging in the searches would have jeopardized some important governmental interest. No such showing has been made here.
      While the LRSD has expressed some generalized concerns about the existence of weapons and drugs in its schools, it conceded at oral argument that there is nothing in the record regarding the magnitude of any problems with weapons or drugs that it has actually experienced. While the line separating reasonable and unreasonable school searches is sometimes indistinct, we think it plain enough that the LRSD's search practice crosses it. In light of the government's legitimate interest in maintaining discipline and safety in the public schools, the privacy that students in those schools are reasonably entitled to expect is limited. The LRSD's search practice, however, effectively reduces these expectations to nothing, and the record contains no evidence of unique circumstances that would justify significant intrusions. The mere assertion that there are substantial problems associated with drugs and weapons in its schools does not give the LRSD carte blanche to inflict highly intrusive, random searches upon its general student body. We therefore reverse the judgment of the district court, and we remand for entry of a judgment not inconsistent with this opinion. 

You Decide 7.5
Ferguson v. City of Charleston, 532 U.S. 67 (2001).
In the fall of 1988, staff members at the public hospital operated in the city of Charleston by the Medical University of South Carolina (MUSC) became concerned about an apparent increase in the use of cocaine by patients who were receiving prenatal treatment. In response to this perceived increase, as of April 1989, MUSC began to order drug screens to be performed on urine samples from maternity patients who were suspected of using cocaine. If a patient tested positive, she was then referred by MUSC staff to the county substance abuse commission for counseling and treatment. However, despite the referrals, the incidence of cocaine use among the patients at MUSC did not appear to change. Some 4 months later, Nurse Shirley Brown, the case manager for the MUSC obstetrics department, heard a news broadcast reporting that the police in Greenville, South Carolina, were arresting pregnant users of cocaine on the theory that such use harmed the fetus and was therefore child abuse. Nurse Brown discussed the story with MUSC's general counsel, Joseph C. Good, Jr., who then contacted Charleston Solicitor Charles Condon in order to offer MUSC's cooperation in prosecuting mothers whose children tested positive for drugs at birth. After receiving Good's letter, Solicitor Condon took the first steps in developing the policy at issue in this case. He organized the initial meetings, decided who would participate, and issued the invitations, in which he described his plan to prosecute women who tested positive for cocaine while pregnant. The task force that Condon formed included representatives of MUSC, the police, the County Substance Abuse Commission, and the Department of Social Services. Their deliberations led to MUSC's adoption of a 12-page document entitled "POLICY M-7," dealing with the subject of "Management of Drug Abuse During Pregnancy." The first three pages of Policy M-7 set forth the procedure to be followed by the hospital staff to "identify/assist pregnant patients suspected of drug abuse." The first section, entitled the "Identification of Drug Abusers," provided that a patient should be tested for cocaine through a urine drug screen if she met one or more of nine criteria. It also stated that a chain of custody should be followed when obtaining and testing urine samples, presumably to make sure that the results could be used in subsequent criminal proceedings. The policy also provided for education and referral to a substance abuse clinic for patients who tested positive. Most important, it added the threat of law enforcement intervention that "provided the necessary `leverage' to make the [p]olicy effective." That threat was, as respondents candidly acknowledge, essential to the program's success in getting women into treatment and keeping them there. The threat of law enforcement involvement was set forth in two protocols, the first dealing with the identification of drug use during pregnancy and the second with identification of drug use after labor. Under the latter protocol, the police were to be notified without delay and the patient promptly arrested. Under the former, after the initial positive drug test, the police were to be notified (and the patient arrested) only if the patient tested positive for cocaine a second time or if she missed an appointment with a substance abuse counselor. In 1990, however, the policy was modified at the behest of the solicitor's office to give the patient who tested positive during labor, like the patient who tested positive during a prenatal care visit, an opportunity to avoid arrest by consenting to substance abuse treatment. The last six pages of the policy contained forms for the patients to sign, as well as procedures for the police to follow when a patient was arrested. The policy also prescribed in detail the precise offenses with which a woman could be charged, depending on the stage of her pregnancy. If the pregnancy was 27 weeks or less, the patient was to be charged with simple possession. If it was 28 weeks or more, she was to be charged with possession and distribution to a person under the age of 18--in this case, the fetus. If she delivered "while testing positive for illegal drugs," she was also to be charged with unlawful neglect of a child. Under the policy, the police were instructed to interrogate the arrestee in order "to ascertain the identity of the subject who provided illegal drugs to the suspect." Other than the provisions describing the substance abuse treatment to be offered to women who tested positive, the policy made no mention of any change in the prenatal care of such patients, nor did it prescribe any special treatment for the newborns.                                                                                                               

Petitioners are 10 women who received obstetrical care at MUSC and who were arrested after testing positive for cocaine. Four of them were arrested during the initial implementation of the policy; they were not offered the opportunity to receive drug treatment as an alternative to arrest. The others were arrested after the policy was modified in 1990; they either failed to comply with the terms of the drug treatment program or tested positive for a second time. Respondents include the city of Charleston, law enforcement officials who helped develop and enforce the policy, and representatives of MUSC. Because MUSC is a state hospital, the members of its staff are government actors, subject to the strictures of the Fourth Amendment. Moreover, the urine tests conducted by those staff members were indisputably searches within the meaning of the Fourth Amendment (1995). While the ultimate goal of the program may well have been to get the women in question into substance abuse treatment and off of drugs, the immediate objective of the searches was to generate evidence for law enforcement purposes in order to reach that goal. The threat of law enforcement may ultimately have been intended as a means to an end, but the direct and primary purpose of MUSC's policy was to ensure the use of those means. In our opinion, this distinction is critical. Because law enforcement involvement always serves some broader social purpose or objective, under respondents' view, virtually any nonconsensual suspicionless search could be immunized under the special needs doctrine by defining the search solely in terms of its ultimate, rather than immediate, purpose. Such an approach is inconsistent with the Fourth Amendment. Given the primary purpose of the Charleston program, which was to use the threat of arrest and prosecution in order to force women into treatment, and given the extensive involvement of law enforcement officials at every stage of the policy, this case simply does not fit within the closely guarded category of "special needs." The fact that positive test results were turned over to the police does not merely provide a basis for distinguishing our prior cases applying the "special needs" balancing approach to the determination of drug use. It also provides an affirmative reason for enforcing the strictures of the Fourth Amendment. While state hospital employees, like other citizens, may have a duty to provide the police with evidence of criminal conduct that they inadvertently acquire in the course of routine treatment, when they undertake to obtain such evidence from their patients for the specific purpose of incriminating those patients, they have a special obligation to make sure that the patients are fully informed about their constitutional rights, as standards of knowing waiver require. As respondents have repeatedly insisted, their motive was benign rather than punitive. Such a motive, however, cannot justify a departure from Fourth Amendment protections, given the pervasive involvement of law enforcement with the development and application of the MUSC policy. The stark and unique fact that characterizes this case is that Policy M-7 was designed to obtain evidence of criminal conduct by the tested patients that would be turned over to the police and that could be admissible in subsequent criminal prosecutions. While respondents are correct that drug abuse both was and is a serious problem, "the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose." Indianapolis v. Edmond, 531 U.S., at ______-______ (slip op., at 9-10). The Fourth Amendment's general prohibition against nonconsensual, warrantless, and suspicionless searches necessarily applies to such a policy. 

Chapter 8: Interrogations and Confessions

You Decide 8.1
Frazier v. Cupp, 394 U.S. 731 (  ).
Petitioner was convicted in an Oregon state court of second-degree murder in connection with the September 22, 1964, slaying of one Russell Anton Marleau. 
Petitioner’s . . . argument concerns the admission into evidence of his own confession. The circumstances under which the confession was obtained can be summarized briefly. Petitioner was arrested about 4:15 p.m. on September 24, 1964. He was taken to headquarters, where questioning began at about 5 p.m. The interrogation, which was tape-recorded, ended slightly more than an hour later, and by 6:45 p.m., petitioner had signed a written version of his confession. After the questioning had begun and after a few routine facts were ascertained, petitioner was questioned briefly about the location of his Marine uniform. He was not asked where he was on the night in question. Although he admitted that he was with his cousin Rawls, he denied being with any third person. Then petitioner was given a somewhat abbreviated description of his constitutional rights. He was told that he could have an attorney if he wanted one and that anything he said could be used against him at trial. Questioning thereafter became somewhat more vigorous, but petitioner continued to deny being with anyone but Rawls. At this point, the officer questioning petitioner told him, falsely, that Rawls had been brought in and that he had confessed. Petitioner still was reluctant to talk, but after the officer sympathetically suggested that the victim had started a fight by making homosexual advances, petitioner began to spill out his story. Shortly after he began, he again showed signs of reluctance, and said, “I think I had better get a lawyer before I talk any more. I am going to get into trouble more than I am in now.” The officer replied simply, “You can’t be in any more trouble than you are in now,” and the questioning session proceeded. A full confession was obtained and, after further warnings, a written version was signed. Petitioner . . . presses the . . . argument that his confession was involuntary, and that it should have been excluded for that reason. The trial judge, after an evidentiary hearing during which the tape recording was played, could not agree with this contention, and our reading of the record does not lead us to a contrary conclusion. Before petitioner made any incriminating statements, he received partial warnings of his constitutional rights; this is, of course, a circumstance quite relevant to a finding of voluntariness. The questioning was of short duration, and petitioner was a mature individual of normal intelligence. The fact that the police misrepresented the statements that Rawls had made is, while relevant, insufficient, in our view, to make this otherwise voluntary confession inadmissible. These cases must be decided by viewing the “totality of the circumstances,” and, on the facts of this case, we can find no error in the admission of petitioner’s confession. 

You Decide 8.2
Brown v. Heyd, 277 F. Supp. 899 (La. 1967). 
On May 26, 1966, the Narcotics Squad of the New Orleans Police Department received information that a school bus driver was delivering what the school children described as pills. The police arrested the driver, found that he was a “terrific addict” and had scars resulting from narcotics injections “all over his arms.” The school children had also reported that the driver made regular stops at his own home on Cherry Street. The police therefore obtained a search warrant and three officers rushed to the driver’s home to search it before any evidence that might be there could be disposed of. They were dressed in plain clothes and drove an unmarked car. As the police car approached the Cherry Street residence, they saw a Chevrolet parked in front of the house. William J. Hadrick was at the driver’s seat, and Brown was about to get in the car. The police knew that Hadrick and Brown were narcotics addicts, and Brown recognized the police. Brown therefore jumped in the car, and Hadrick drove it away rapidly. The police gave chase, sounding their siren. They saw Brown put his hand to his mouth and concluded, based on their prior experience, that he might be trying to swallow evidence. The Chevrolet turned a street corner and, as it did so, one of the police officers fired three shots in the air. When the third shot was fired, Hadrick suddenly stopped the Chevrolet. The police officers rushed to the Chevrolet. They arrested Hadrick who submitted peacefully. Brown resisted arrest, so the officers forcibly removed him from the Chevrolet. While two of the officers were subduing him, the third officer saw a white capsule on the seat of the Chevrolet where Brown had been sitting. The police later searched the automobile without a warrant, and found a brown paper bag containing two glass eyedroppers, one plastic medicine dropper, one bottle cap, and one needle holder, the type of paraphernalia used by addicts in taking narcotics. A motion to suppress this evidence was filed in state court, and the Court suppressed all of the evidence found in the automobile except the capsule found on the seat. It was later determined that this capsule contained heroin. 
Brown and Hadrick, together with the school bus driver, were taken to the bus driver’s house. Brown was advised that he had a right to speak or remain silent; anything he said might be used against him; and he had a right to counsel. He was not told that he had a right to have an attorney present when he spoke, if he decided to make a statement nor was he told that, if he didn’t have funds, the court would appoint a lawyer to represent him. He did, however, say, in the course of the attempt by the police officers to warn him, “I know all of that, Mr. Lampard.” 
According to the testimony of all the witnesses pertaining to this issue, the defendants were amply apprised of their constitutional rights and their admission against interest was admissible. Officer Favalora’s testimony however was as follows: “Q. Did you tell him he had that right to counsel even though he didn’t have the funds to hire him?” “A. No.” “Q. Did you afford him any opportunity to procure a lawyer?” “A. No, sir, I did not.” He later testified: “Q. And your statement to them was that they had a right to counsel?” “A. Right.” “Q. You didn’t explain what that meant any further than that, did you?” “A. No, sir. That’s all I told them.” Thereafter, both Brown and Hadrick told the police that they used narcotics and each said that he “had did up” (injected narcotics) that day. Testimony by the police concerning these statements was admitted in evidence over objection. The warnings required by the decisions in Escobedo and Miranda are summed up on Miranda as follows:

“Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.” 

“In order fully to apprise a person interrogated of the extent of his rights under this system then it is necessary to warn him not only that he has the right to consult with an attorney but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent--the person most often subjected to interrogation--the knowledge that he too has a right to have counsel present. As with the warnings of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it.”

“To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are require. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.”

The Miranda opinion is explicit. The accused must be warned in advance of interrogation that “he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” This was not done here. Nor can it be said that a different rule applies to Brown’s statements because they were not confessions. The Miranda opinion disposes of this contention in the following words:

“The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant. No distinction can be drawn between statements which are direct confessions and statements which amount to ‘admissions’ of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination.” 

It will not do to suggest that Brown’s statement, “I know all of that, Mr. Lampard,” constitutes a waiver of the right to the warning that Brown was not given. The United States Supreme Court has advised us, in Miranda, that “No amount of circumstantial evidence that the person may have been aware of this right (the right to counsel, as the Court there defined it) will suffice to stand in its stead." That decision clearly holds that the right to counsel may be waived only if the individual “knowingly and intelligently” does so “after such warnings have been given.”

You Decide 8.3
United States v. Mittel-Carey, 06-1960 (1st Cir. 2007).

The district court issued an order suppressing statements made by the appellee, Robert Mittel-Carey, to FBI agents during a search of his home. Because we agree with the district court that a reasonable person in the appellee’s situation would have believed he was in custody during the search, we affirm the suppression order.
A magistrate judge issued a search warrant for Mittel-Carey’s house, located in Lowell, MA, for evidence of possession and transportation of child pornography. On January 20, 2005, at 6.25 a.m., eight law enforcement officers arrived at Mittel-Carey’s house, which he shared with his girlfriend, to execute the search warrant. Both Mittel-Carey and his girlfriend were asleep. When the agents knocked on their door. The girlfriend answered the door, the agents explained the search warrant and entered the house. Two agents located Mittel-Carey and entered the dark bedroom where Mittel-Carey was sleeping. One of them carried a flashlight and an unholstered gun. Mittel-Carey saw the gun “at least when [the agent] holstered it and put it back in its holster.”
The agents ordered Mittel-Carey to dress and escorted him downstairs, first into the dining room and then into the living room. They told Mittel-Carey where to sit and separated Mittel-Carey from his girlfriend, whom they sent upstairs, they did not allow the two to speak to each other. Mittel-Carey’s girlfriend was questioned by two agents upstairs for approximately 20 min. At the conclusion of her interview, the girlfriend said she was late for work and asked an agent for permission to shower and change into her work clothes. The agent granted her permission to do so. She testified that she felt the agents “were escorting me and that they were in charge of the situation. When she was ready to leave for work, she asked permission to go downstairs and the agents granted the requested permission for her to leave the house. The agents permitted Mittel-Carey to briefly speak with his girlfriend before she left, but an agent was present for the conversation.
Meanwhile, as other agents searched the house, two FBI agents remained with Mittel-Carey in his living room and began to interrogate him. There were a total of eight federal agents in the home. Prior to beginning this interrogation, the agents did not give Mittel-Carey Miranda warnings. One of the two agents, Agent Travaglia, explained to Mittel-Carey that his house was being searched based on an undercover sting operation investigating child pornography. The agent also told Mittel-Carey that he did not have to respond to the agents’ questions, but that in his experience, “those individuals that cooperated with investigations at the outset tended to fare better. He also told Mittel-Carey that a deal was to be had later on down the road” and that the federal sentencing guidelines contain “a provision for acceptance of responsibility which may qualify him for a reduction in sentencing. In response, Mittel-Carey asked, “Should I have an attorney?” Travaglia replied that he “could not advise him one way or for this?” He also told Mittel-Carey “if he got an attorney, the attorney was going to tell him not to speak to the FBI,” but that it was “his right.” “Finally, Travaglia told Mittel-Carey that “based on what [the agents] anticipated [finding] on his computer and what he had already done he was looking at a lot of jail time.”
The agents interviewed Mittel-Carey for one-and-a-half to two hours. During this time, he received permission from the agents on several occasions to move. First, he was permitted to move in three instances from his seated position in the living room. An agent allowed him to briefly speak to his girlfriend before she left for work. An agent was present for this brief conversation. Second, he requested to use the bathroom. The agents granted this request, and an agent accompanied him to the bathroom. An agent stood outside the bathroom with the door partially open, in order to monitor Mittel-Carey. Finally, the agents permitted Mittel-Carey to feed his pet rabbits on the back porch after the interview was finished. The agents accompanied Mittel-Carey for this task as well.
The interrogation lasted between 90 minutes and 2 hr. The agents left Mittel-Carey’s home without placing him under formal arrest.
The district court ordered the suppression of Mittel-Carey’s statements to the agents, finding that his interrogation was custodial, and therefore that Miranda warnings were required. 
 “The “ultimate inquiry” when determining whether a defendant was in custody during an interrogation “is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. This inquiry is informed by considering the “totality of the circumstances,” and asking whether in light of the circumstances of the interrogation, “a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.” 
Though by no means an exhaustive list, this circuit has identified four factors which ought to be considered when custody is at issue, including “whether the suspect was questioned in familiar or at least neutral surroundings, the number of law enforcement officers present at the scene, the degree of physical restraint placed upon the suspect, and the duration and character of the interrogation. .
Considering the totality of the circumstances, and these four factors in particular, we conclude that the district court was correct that Mittel-Carey was in custody at the time of his interrogation and therefore should have received Miranda warnings. Facts we find dispositive are (1) the early hour of the search and interrogation (6:25 a.m.);  (2) the presence of eight officers in the home;  (3) that the defendant was confronted with an unholstered gun in his darkened bedroom;  (4) the physical control the agents maintained over the defendant at all times;  (5) the length of the interrogation (90 min to 2 hr);  and (6) the coercive statements made by the interrogating agent, which seemed designed to elicit cooperation while carefully avoiding giving the defendant Miranda warnings.
Among these facts, the element that carries the most weight is the level of physical control that the agents exercised over the defendant during search and interrogation. Mittel-Carey was ordered to dress, go downstairs, and was told where to sit;  he was physically separated from his girlfriend and not allowed to speak to her alone;  and he was escorted by agents on the three occasions that he was permitted to move, While an interrogation in defendant’s residence, without more, certainly weighs against a finding of custody, the level of physical control the agents exercised over Mittel-Carey in this case weighs heavily in the opposite direction, despite the fact that the control was exercised inside defendant’s home, 
  The government argues that the physical control was necessary to preserve potential evidence within the house and protect the safety of the officers. While that may be so, this justification does not answer the very different question of whether a reasonable person, awakened at 6:25 a.m. by law enforcement officers (one with an unholstered gun), who is interrogated for up to 2 hr and not permitted freedom of movement within his own home, would believe he was not at liberty to terminate the interrogation and leave. We believe that a reasonable person in Mittel-Carey’s situation would conclude that he was not free to do so. If the government is correct that the agents’ actions were necessary for evidence preservation and officer safety, then it could have chosen to postpone the interrogation until a non-custodial moment, or to Mirandize Mittel-Carey. For the foregoing reasons, we affirm the district court’s suppression of the appellee’s statements.

You Decide 8.4

United States v. Carrillo, 16 F.3d 1046 (9th Cir. 1994).
Following a jury trial, Richard Carrillo and Ernest Benavidez were convicted of numerous charges relating to the possession and distribution of cocaine, including conspiracy with intent to distribute five or more kilograms of cocaine. Carrillo and Benavidez now appeal their convictions, alleging that the district court erred (by admitting into evidence  a postarrest statement made by Carrillo in response  to an officer’s question prior to a Miranda warning . . .
Evidence at trial indicated that a government informant met Richard Carrillo by chance in a bar in Corona, CA, in March or April of 1991. After learning that Carrillo was involved in the cocaine business, the informant cultivated a relationship with Carrillo and proceeded with negotiations for the purchase of large quantities of cocaine. In July, the informant paid Carrillo $800 to obtain a one-ounce sample of cocaine. Because the informant was unhappy about the quality of the cocaine, Carrillo later provided free of charge a second sample of cocaine and negotiations continued.
During these negotiations, the informant convinced Carrillo to travel to Reno, NV, where the informant, Carrillo, and Benavidez met with Scott Jackson, a Nevada narcotics agent posing as a cocaine dealer. During this meeting, both price and quantity were negotiated but not confirmed. Benavidez represented ]  that his wholesale price for the cocaine was $15,000 to $16,000 per kilogram. Many of these negotiations were recorded on videotape or audiotape. Eventually, Carrillo and Benavidez agreed to sell 20 kg of cocaine to the government agents for $18,000 per kilogram.
On November 25, 1991, Carrillo agreed to complete the transaction the following day at the informant's apartment. The next day, Carrillo arrived with Benavidez at the apartment. However, the two men brought only a single kilogram of cocaine. When Agent Jackson inquired about the additional 19 kg, Benavidez responded that he could obtain only 14 more kilograms and he refused to complete the transaction unless Agent Jackson traveled to Benavidez’s home that night. Instead of continuing the operation further, the police arrested Benavidez and Carrillo and several codefendants who assisted in the cocaine delivery.
After an 8-day jury trial, Carrillo and Benavidez were convicted of all charges. They were sentenced to 121 months of imprisonment for conspiracy with intent to distribute five or more kilograms of cocaine and were given lesser sentences on each of the other counts, to run concurrently. They now appeal, urging various trial errors.
Admitted into evidence at trial was a statement made by Carrillo before he was given a Miranda warning. After Carrillo was arrested and transported to the detention facility, Officer Weeks searched Carrillo. Before beginning, however, the officer asked Carrillo if he had any drugs or needles on his person. https://advance.lexis.com/search/?pdmfid=1000516&crid=33f9c4f3-840e-4f51-9bfa-a36bb75e4d46&pdsearchterms=16+F.3d+1046&pdstartin=hlct%3A1%3A3&pdtypeofsearch=searchboxclick&pdsearchtype=SearchBox&pdqttype=and&pdpsf=&ecomp=Lg25k&earg=pdpsf&prid=46f3c08a-ae88-45ba-9d64-cfc7df5fc941Carrillo responded, “No, I don't use drugs, I sell them.” Carrillo argues that this statement should have been suppressed because it was made before Carrillo had been given a Miranda warning. The district court admitted the evidence under the “public safety” exception to Miranda. 
https://advance.lexis.com/search/?pdmfid=1000516&crid=33f9c4f3-840e-4f51-9bfa-a36bb75e4d46&pdsearchterms=16+F.3d+1046&pdstartin=hlct%3A1%3A3&pdtypeofsearch=searchboxclick&pdsearchtype=SearchBox&pdqttype=and&pdpsf=&ecomp=Lg25k&earg=pdpsf&prid=46f3c08a-ae88-45ba-9d64-cfc7df5fc941In determining whether the public safety exception to Miranda   applies, “we ask whether there was an objectively reasonable need to protect the police or the public from any immediate danger.” We agree with the district court that Officer Weeks’s question stemmed from an objectively reasonable need to protect himself from immediate danger. Officer Weeks testified that he asks this question as a matter of policy before searching a prisoner to avoid contact with syringes and toxic substances.https://advance.lexis.com/search/?pdmfid=1000516&crid=33f9c4f3-840e-4f51-9bfa-a36bb75e4d46&pdsearchterms=16+F.3d+1046&pdstartin=hlct%3A1%3A3&pdtypeofsearch=searchboxclick&pdsearchtype=SearchBox&pdqttype=and&pdpsf=&ecomp=Lg25k&earg=pdpsf&prid=46f3c08a-ae88-45ba-9d64-cfc7df5fc9411 The risk differs from that presented by a gun, but the danger of transmission of disease or contact with harmful substances is real and serious enough; a pressing need for haste is not essential. See 
    Our conclusion is buttressed by the non-investigatory nature of the officer’s question. The question called for a “yes” or “no,” not a   testimonial response. Ordinarily, a question framed in this manner would not elicit any incriminating evidence not produced by the search itself. After Carrillo gave the incriminating but unrequested response, the officer asked no more questions. https://advance.lexis.com/search/?pdmfid=1000516&crid=33f9c4f3-840e-4f51-9bfa-a36bb75e4d46&pdsearchterms=16+F.3d+1046&pdstartin=hlct%3A1%3A3&pdtypeofsearch=searchboxclick&pdsearchtype=SearchBox&pdqttype=and&pdpsf=&ecomp=Lg25k&earg=pdpsf&prid=46f3c08a-ae88-45ba-9d64-cfc7df5fc941Although the test is an objective one, the officer’s deliberate refusal to pursue the subject heightens our confidence that, in this case, the narrowly tailored question was a reasonable attempt by a police officer to insure his personal safety in the midst of a search. Consequently, the spontaneous and unrequested response of the suspect was properly admitted under the Quarles public safety exception to Miranda.

You Decide 8.5
Hairston v. United States, 905 A.2d 765 (D.C.App. 2006).
A jury convicted Timothy Hairston, the appellant, of conspiracy to assault and murder members of a rival neighborhood faction of young men, first-degree murder while armed; possession of a firearm during a crime of violence or dangerous offense; assault with intent to kill (Luis Delarosa) while armed; possession of a firearm during a crime of violence or dangerous offense and carrying a pistol without a license, in violation of D.C. Code.
The record shows that the charges against Mr. Hairston, and others with whom he was indicted and tried, resulted from an intense neighborhood dispute between young men in the Clifton Terrace area (the Northwest quadrant of the District of Columbia) during the months of April through October 1997. The dispute between the young men belonging to the “1300 Clifton” and the “1400 Clifton” rival factions escalated into violence, resulting in several deaths and injuries, including the murder of Arrion Johnson, and the injury of Luis Delarosa.
Mr. Hairston contends in his main brief that his written statement should have been suppressed because his Fifth Amendment constitutional rights were violated. Specifically, he complains that the police “deliberately withheld [his] Miranda rights”; that “[i]nstead of providing Miranda rights prior to their custodial interrogation, police officers tried to exact an incriminating statement from [Mr.] Hairston by confronting him with evidence and questioning him for at least an hour.” He maintains that, based on this conduct, the trial court should have suppressed his statement. The government insists in its main brief that Mr. Hairston “voluntarily confessed his role in [Mr.] Johnson’s murder after signing a Form PD-47 waiving his Miranda rights,” and that, at any rate, he “made a knowing, voluntary, and intelligent waiver [of his Miranda rights] under the totality of the circumstances.” 
We asked the parties to file supplemental briefs after the Supreme Court handed down its decision in Missouri v. Seibert. In his supplemental brief, Mr. Hairston argues that “[b]ecause this case . . . involves a confession obtained through question-first police tactics designed to sap the Miranda warnings of their protective value, this [c]ourt should reverse the [trial court’s] judgment. . . .” He claims that he “was subjected to a brutal series of ‘psychological ploys’ designed precisely to break his will so that the Miranda warnings, when finally given, were an empty gesture.” The government contends that Seibert “was based on an entirely different set of circumstances,” and that “an essential factor upon which Seibert is based--the existence of an unwarned confession . . . is not present here.”
Before discussing the parties’ arguments, we set forth the pertinent factual context. The government presented evidence showing that on August 22, 1997, Metropolitan Police Department (MPD) Detective Michael C. Irving obtained an arrest warrant for Mr. Hairston, then an 18-year-old male, relating to the murder of Mr. Johnson. After obtaining the warrant, Detective Irving advised the officers and detectives in the Third District of the MPD4 “that if they saw [Mr. Hairston, they should] place him under arrest and not to advise him of his rights.” Detective Irving delivered this instruction to the other offices because he “wanted to be the one to speak with [Mr. Hairston] when he was arrested.”
On September 26, 1997, at approximately 10:00 p.m., Mr. Hairston was arrested in the Third District. Detective Irving was informed that Mr. Hairston had been arrested and “was being transported to the Homicide Branch of the [MPD],” by Sergeant Kirk Sloan of the Gun Recovery Unit. Upon learning of the arrest, Detective Irving instructed Sergeant Sloan to “place [Mr. Hairston] in the interview room and to leave him alone and [that he, Detective Irving,] would be there shortly thereafter.”
Detective Irving arrived at the Homicide Branch at approximately 11:00 p.m. or 11:30 p.m. He found Mr. Hairston “in the interview room located on the third floor” of the building, sitting at a table, alone in a small room. He was handcuffed to a chain that was attached to the floor. According to Detective Irving, Mr. Hairston was “quiet,” was not “injured,” was not in any “physical discomfort,” did not exhibit any “emotional distress,” and “appeared to be okay.” Mr. Hairston had been restrained in this room from the time he was arrested and transported to the Homicide Branch, until the time of Detective Irving’s arrival, that is, for approximately one-and-a-half to two hours (10:00 p.m. to 11:30 p.m.–12:00 a.m.). He had not been given Miranda warnings before Detective Irving arrived.
When Detective Irving entered the room, he sat down at the table across from Mr. Hairston and introduced himself. Detective Irving “advised [Mr. Hairston] that he had been placed under arrest for murder and that [the detective] was interested in hearing his side of the story as to what happened on the day [Mr.] Johnson was killed.” Detective Irving began to outline “some of the facts in the case that [he] was aware of as far as [Mr. Hairston’s] participation.” He “knew that [Mr. Hairston] was in a van that drove from the 1300 block of Clifton [Street] into [the scene of the murder] at the time [Mr.] Johnson was shot and killed.” Mr. Hairston did not ask to speak with an attorney at any point during this conversation.

As this one-sided conversation unfolded, Detective Irving did not immediately advise Mr. Hairston of his Miranda rights.7 Rather, he described some of the details of Mr. Johnson’s death--the van that was used in the killing; and the names of some of the people who were also involved in the murder. Detective Irving told Mr. Hairston that he “just wanted him to listen,” because his stated goal at this stage of the interview was to make sure that Mr. Hairston was “aware of some of the facts,” and “if [Mr. Hairston] did attempt to speak . . . [, Detective Irving planned to] emphasize that [he] wanted [Mr. Hairston] to listen and not talk at that time.”
While recounting the facts of the murder to Mr. Hairston, Detective Irving mentioned that he had already spoken with Am[o]s Chaney, another suspect in the case, that Mr. Chaney “had already been placed under arrest,” and that “Mr. Chaney had already given [Detective Irving] a statement.”8 When Mr. Hairston told the Detective that he did not believe that Mr. Chaney had given the police a statement, Detective Irving “ask[ed] him . . . [if] he want[ed] to see the proof” of the statement. Mr. Hairston “said that he wanted to see the proof.”
In response to Mr. Hairston’s request “to see the proof,” Detective Irving left the interview room and set up a videotape machine in another room. He placed a “videotape in the machine”--a recording of his interview of Mr. Chaney--and “turned the volume down.” He then “returned to the interview room, got Mr. Hairston,[]brought him back into the room with the video monitor,” and turned on the videotape recorder so that Mr. Hairston could see Detective Irving “speaking with Mr. Chaney.” The detective never turned up the volume so that Mr. Hairston could “hear the contents of the tape.” Mr. Hairston watched the video for “a little under a minute” so that he could see that “Mr. Chaney was, in fact, in custody when he spoke to [Detective Irving].” Detective Irving readily acknowledged on cross-examination that his purpose in showing the videotape to Mr. Hairston was “to convince him of the strength of [his] case so that [Mr. Hairston] would fully cooperate.”
Detective Irving returned to the interview room with Mr. Hairston and “asked him again did he want any help in his case, and . . . did he want to tell [Detective Irving] his side of the story. . . .” Approximately 10 min after viewing the image of Mr. Chaney speaking with Detective Irving, Mr. Hairston said “yes.” Detective Irving then administered the Miranda warnings. As Detective Irving testified: “I advised him that I had to--before he told me his side of the story that I had to advise him of his rights.” Detective Irving took the PD-47 card out of his shirt pocket, read Mr. Hairston his rights as they appeared on the card, and “advised [him] that he had to answer the first four questions and sign his name on line number five” of the card. The rights listed on the card included, among others, the right to remain silent and the right to talk with a lawyer. At 12:51 a.m., after being with Detective Irving for approximately 1 hr, Mr. Hairston answered yes to each question on the card. Mr. Hairston also put his initials, T.H., next to each question and signed “line number five.”
After Mr. Hairston signed the waiver card, “the interview again started up,” and Mr. Hairston proceeded to implicate himself in the murder of Mr. Johnson. When Detective Irving asked Mr. Hairston questions regarding his involvement in the murder, he initially gave “very vague” answers, and attempted to provide a very limited confession. However, Detective Irving questioned Mr. Hairston for “roughly an hour” and was able to elicit a detailed account of Mr. Hairston’s involvement in the murder. Although Mr. Hairston refused to allow his statement to be videotaped, he agreed to “provide a typewritten statement,” and eventually signed a five-page statement prepared by Detective Irving. The interview ended at 3:18 a.m.
Under Miranda, “[t]he government is constitutionally precluded by the Fifth Amendment’s Self-Incrimination Clause from using at trial a defendant’s incriminating statement made while in custody unless the defendant has been advised of his right to remain silent (as a means of safeguarding the privilege against compulsory self-incrimination) and to be represented by an attorney before he is interrogated.” “At the same time, not every violation of the rule requires suppression of the evidence obtained. Evidence is admissible when the central concerns of Miranda are not likely to be implicated and when other objectives of the criminal justice system are best served by its introduction.” Furthermore,
It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made. 
 And, “prewarning interaction [between a defendant and the police] [does] not render the Miranda warnings ineffective to a reasonable suspect, [where a defendant’s] waiver of his Miranda rights was voluntary and constitutionally valid.” Nevertheless, if the defendant’s “statement was the coerced product of the functional equivalent of express questioning, . . . it should . . . [be] suppressed [where] it was made in the absence of Miranda warnings.” 
If this court detects “a Miranda violation, [it] must [] determine whether the trial court’s denial of the motion to suppress the statement constitutes reversible constitutional error.” “If there is ‘no reasonable possibility’ that the offending evidence might have contributed to the conviction, the error is harmless beyond a reasonable doubt.”
Mr. Hairston’s case falls somewhere within the interstices of the factual context and legal principles articulated in Seibert, Elstad, Hill, and Gonzalez-Lauzan. The factual contexts of Seibert and Elstad are different from the factual scenario in the case before us, but are helpful in determining whether what transpired before Mr. Hairston was given his Miranda warnings constituted the functional equivalent of interrogation. In Seibert, a plurality of the Supreme Court held that the police interrogation practice commonly referred to as “question-first” violated the principles of Miranda, and was therefore unconstitutional. There, the respondent’s infant son who was afflicted with cerebral palsy, died in his sleep. Fearing that she would be charged with neglect for her son’s death, because he had bedsores on his body, the respondent concocted a plan to conceal the real cause of his death. The respondent, with the help of her two sons and their friends, set the family mobile home on fire, with hopes that the ensuing fire would destroy all evidence of the boy’s death. However, to avoid any appearance that her son had been left at home unattended, the respondent decided that someone else should also be left in the burning mobile home. The respondent chose Donald Rector, an unrelated mentally ill 18-year-old who was living with the family at the time. The mobile home was set on fire with the body of her infant son still inside, and Mr. Rector sound asleep. He was killed by the fire. 
Five days after the fire, the police arrested the respondent but did not immediately read her Miranda rights. At the police station, Officer Hanrahan questioned the respondent for 30–40 minhttps://www.leagle.com/decision/20061670905a2d76511648 - fid13 and obtained a confession that the respondent intended Mr. Rector to die in the fire. Officer Hanrahan then gave her a 20-min cigarette break, returned and read the respondent her Miranda rights and obtained a signed waiver of her rights. The officer resumed questioning, confronting the respondent with her prewarning statements, and was able to get the respondent to again confess to Mr. Rector’s death. 
At the suppression hearing in the Seibert case, Officer Hanrahan testified that he made a “conscious decision” to withhold Miranda warnings, and that it was part of police interrogation strategy known as “question-first.” Under this strategy, the police question the suspect without the benefit of a Miranda warning and obtain a confession, then give the Miranda warnings, and ask the suspect to repeat the confession. The trial court suppressed the prewarning statement but admitted the responses that were given after the Miranda warnings were administered. 
On appeal, the Supreme Court described the conflicting goals of Miranda and the “question-first” tactic: Whereas “Miranda addressed interrogation practices . . . likely . . . to disable [an individual] from making a free and rational choice about speaking, and held that a suspect must be adequately and effectively advised of the choice the Constitution guarantees,” the “object of question-first is to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed.” 
To help guide future courts examining similar interrogation techniques, especially in light of Elstad, supra, the plurality outlined a multi-factor test “that bear[s] on whether Miranda warnings delivered midstream could be effective enough to accomplish their object[ive]. . . ." A court is to consider: (1) “"the completeness and detail of the questions and answers in the first round of interrogation,” (2) “the overlapping content of the two statements,” (3) “the timing and setting of the first and the second,” (4) “the continuity of police personnel,” and (5) “the degree to which the interrogator’s questions treated the second round as continuous with the first.” 
The plurality then went on, after stating the above multi-factor test, to analyze whether the respondent had effectively been denied her rights under Miranda. The Court concluded that she had, noting that the “unwarned interrogation . . . questioning was systematic, exhaustive, and managed with psychological skill,” that when “the police were finished there was little, if anything, of incriminating potential left unsaid,” that “the police did not advise [her] that her prior statement could not be used,” and, finally, that it “would have been reasonable to regard the two sessions as parts of a continuum.” The plurality concluded that “[t]hese circumstances must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes would not have understood them to convey a message that she retained a choice about continuing to talk.”
In Elstad, after the burglary of the home of Mr. and Mrs. Gilbert Gross, the police received information that Michael Elstad, who lived in the neighborhood, might have been involved in the burglary. Armed with an arrest warrant, the police went to Mr. Elstad’s home. Mr. Elstad’s mother admitted the police and led them to her 18-year-old son’s bedroom. Later, one of the officers spoke with Mr. Elstad in the living room of his home. When asked whether “he knew a person by the name of Gross,” Mr. Elstad “said yes, he did, and also added that he heard that there was a robbery at the Gross house.” The officer indicated that he “felt [Mr. Elstad] was involved” in the burglary. 

Mr. Elstad responded, “Yes, I was there.” As Mr. Elstad was in the process of being taken to the Sheriff’s office, his father arrived, “opened the rear door of the [patrol] car and admonished his son: ‘I told you that you were going to get into trouble, You wouldn’t listen to me. You never learn.’” Approximately 1 hr after his arrival at the Sheriff’s office, Mr. Elstad was read his Miranda rights. He waived these rights and then gave an incriminating statement to the officers. 
The trial court in Elstad excluded the statement Mr. Elstad made at his home, “I was there,” on the ground that Mr. Elstad “had not been advised of his Miranda rights,” but admitted the written confession he made at the Sheriff’s office, after he had been given and had waived his Miranda rights. The Supreme Court held “that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” In reaching its holding, the Supreme Court declared:
When police ask questions of a suspect in custody without administering the required warnings, Miranda dictates that the answers received be presumed compelled and that they be excluded from evidence at trial in the State’s case in chief. The Court has carefully adhered to this principle, permitting a narrow exception only where pressing public safety concerns demanded. The Court today in no way retreats from the bright line-rule of Miranda. We do not imply that good faith excuses a failure to administer Miranda warnings; nor do we condone inherently coercive police tactics or methods offensive to due process that render the initial admission involuntary and undermine the suspect’s will to invoke his rights once they are read to him. A handful of courts have, however, applied our precedents relating to confessions obtained under coercive circumstances to situations involving wholly voluntary admissions, requiring a passage of time or break in events before a second, fully warned statement can be deemed voluntary. Far from establishing a rigid rule, we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspect’s initial inculpatory statement, though technically in violation of Miranda, was voluntary. 

The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative. We find that the dictates of Miranda and the goals of the Fifth Amendment proscription against use of compelled testimony are fully satisfied in the circumstances of this case by barring use of the unwarned statement in the case in chief. No further purpose is served by imputing taint to subsequent statements obtained pursuant to a voluntary and knowing waiver. 
The facts of both Hill and Gonzalez-Lauzan resemble those of Mr. Hairston’s case, in some but not all respects.
The appellant in Hill was arrested in connection with a fatal shooting. He was taken to a police station, placed in an interview room, and handcuffed to a chair. A detective issued instructions that no one should advise the appellant of his rights until the detective had done so. “[A]pproximately three and one-half hours after [he] had been taken into custody,” that is, around 11:30 p.m., the detective obtained a soda for the appellant, and then informed him: “I’m Lu Rivera, I’m the one running the show and you’re going to be charged with murder II.” When the appellant asked about his friend, and whether he was “locked up,” the detective said, “no, but let me tell you he told us what happened”; the appellant replied: “no, I'm going to tell you what happened.” He then made a 2-minute statement, indicating that he had been driving a vehicle, was trying to park when he had an argument with someone who opened the door to his vehicle. When he exited his vehicle and approached the man who had opened the car door, he saw the man reach for “something shiny, something silver in his waistband.” He shot the man, parked his car, and proceeded into an apartment building. The detective gave the Miranda warnings to the appellant around 1:30 a.m., after he had made his incriminating statement, and the appellant invoked his right to an attorney. “The trial court denied the motion to suppress appellant’s statement to the police, concluding that Detective Rivera’s comments did not constitute the functional equivalent of express questioning.”
We reversed Mr. Hill’s conviction after concluding that his “statement was the coerced product of the functional equivalent of express questioning and, therefore, should have been suppressed because it was made in the absence of Miranda warnings.” Explaining our conclusion, we said:
We are convinced that the seemingly benign transmittal of information to [appellant] . . . resembles the kind of mental games that largely generated the Miranda decision itself. The detective’s instruction that nobody [is] to advise him of his rights until I do underscores the plan to intimidate appellant by purposely withholding the advisement of rights meant to counteract the pressure inherent in custodial interrogation required by the Supreme Court in Miranda. This is not to be countenanced for, as the Supreme Court has recently emphasized in an analogous context, strategists dedicated to draining the substance out of Miranda cannot accomplish by training instructions what Dickerson held Congress could not do by statute. [Seibert,]. 
Three police officers assigned to interview the appellant in Gonzalez-Lauzan adopted a “just listen” technique, as did Detective Irving in Mr. Hairston’s case. Gonzalez-Lauzan. At the time Mr. Gonzalez-Lauzan was interviewed, he was serving a sentence for violation of supervised release in connection with a prior offense, and had been indicted but not then arrested on a murder charge. The officers removed him from a federal detention center, took him to an interview room at a courthouse, and spoke with him for two and one-half to three hours, revealing to him evidence that they had gathered concerning the murder. Similar to Detective Irving’s purpose in using the “just listen” technique, the three officers in the Gonzalez-Lauzan case “hoped that the strength of [their] evidence would persuade [Mr.] Gonzalez-Lauzan to talk about his participation in the [murder]. The officers planned to give [Mr.] Gonzalez-Lauzan Miranda warnings only if it became apparent that [he] would be willing to make a custodial statement.” After stating their belief that Mr. Gonzalez-Lauzan was involved in the murder, and recognizing that he had previously been represented by counsel--to which the appellant said he “knew [his] rights”--the officers told the appellant: “[W]e’re not asking you any questions. We don’t want you to say anything. We just have something to say to you and we ask that you listen to it so that you can understand where we are coming from.” As the officers presented the evidence, they instructed Mr. Gonzalez several times “just to listen and told him that [they] did not have any questions. After two and one-half hours, Mr. Gonzalez-Lauzan “stated suddenly, ‘okay, you got me’”; and he was read his Miranda rights, but signed a form waiving them. Id. He then made a statement confessing his role in the murder.
The District Court suppressed the prewarning statement, “‘okay, you got me,’” but upon recommendation of a magistrate judge, allowed Mr. Gonzalez-Lauzan’s postwarning confession to be admitted into evidence, on the ground that he had waived his Miranda rights “‘knowingly, freely and voluntarily,’” and had not been subjected to “threats or coercion” by the police. After considering both Elstad and Seibert, the 11th Circuit “conclude[d] that the Miranda warnings in [Mr.] Gonzalez-Lauzan's circumstances could and did function effectively, that [he] voluntarily waived his Miranda rights, and that [his] warned statements are admissible under both Elstad and Seibert.” The court further explained:
The first phase here did not seek to elicit any incriminating statements as occurred in Seibert, but rather the officers repeatedly told [Mr.] Gonzalez-Lauzan just to listen. Also, the officers did not have prewarned incriminating statements with which to cross-examine [him] in order to pressure him to repeat them and thereby undermine the Miranda warnings. Nor did [Mr.] Gonzalez-Lauzan's postwarning statements relate to the substance of his single, brief prewarning statement. 
The court also applied the Seibert plurality’s multi-factor test and Justice Kennedy’s narrower test and concluded that “prewarning interaction did not render the Miranda warnings ineffective to a reasonable suspect, and [Mr.] Gonzalez-Lauzan’s waiver of his Miranda rights was voluntary.” 
Mr. Hairston’s case does not readily fit the classic “question-first” mold of Seibert. Nor does it mirror the intimidating “I am in charge” approach of the detective in Hill; nor, unlike Hill, was there a prewarning confession. Rather, Mr. Hairston’s case resembles more the “just listen” pattern of Gonzalez-Lauzan and the noncoercive environment and voluntary second phase waiver of both Elstad and Gonzalez-Lauzan. Detective Irving’s first phase recounting of evidence accumulated in the Arrion Johnson murder investigation did not elicit any incriminating statement from Mr. Hairston. The only questions regarding the first phase of Detective Irving’s meeting with Mr. Hairston are whether Detective Irving’s tactic of offering to show Mr. Hairston proof that Mr. Chaney had spoken with the detective and given a statement was the functional equivalent of interrogation, and whether that tactic had a coercive effect on Mr. Hairston in that it overbore his will. That is, did playing of the videotape of Mr. Chaney speaking with the police, with the sound turned down so that Mr. Hairston could not hear what Mr. Chaney said, constitute the functional equivalent of interrogation, and did it have a coercive impact first on Mr. Hairston's decision to say “yes,” he wanted to tell his side of the story, and ultimately on his decision to confess. Initially, we note that saying, “yes,” I want to tell my side of the story (Mr. Hairston) is not the same as saying, “okay, you got me” (Mr. Gonzalez-Lauzan). "[O]kay, you got me," is an obvious incriminating statement, whereas, “yes,” I want to tell my side of the story is not. But, even assuming, without deciding, that Detective Irving's first phase tactic was the functional equivalent of interrogation, it resulted in no incriminating statement, and did not run afoul of the essence of Miranda: "The government is constitutionally precluded by the Fifth Amendment's self-incrimination clause from using at trial a defendant's incriminating statement made while in custody unless the defendant has been advised of his right to remain silent (as a means of safeguarding the privilege against compulsory self-incrimination) and to be represented by an attorney before he is interrogated." 
Furthermore, even if we "presum[e] coercive effect" as a result of Mr. Hairston's prewarning statement, "yes," I want to tell my side of the story, we see nothing in the record to suggest that this statement was not voluntary. Nothing indicates that Detective Irving said anything to Mr. Hairston to pressure him into acknowledging any role in the murder of Mr. Johnson, as he watched (without sound) the videotape of Mr. Chaney speaking with the police. While one could regard the playing of a silent videotape of Mr. Chaney as Detective Irving's effort to give Mr. Hairston the impression that Mr. Chaney had confessed to a role in the murder of Mr. Johnson and had implicated the appellant here, Mr. Hairston's statement just as reasonably could be interpreted as a manifestation of consciousness of guilt on his part and a voluntary desire to share his own version of what had happened. And, assuming that the latter interpretation would make Mr. Hairston's phase one statement inculpatory, it falls within Elstad's cautionary declaration that "there is no warrant for presuming coercive effect where the suspect's initial inculpatory statement, though technically in violation of Miranda, was voluntary." 
Nevertheless, we are left with the question whether the phase two confession of Mr. Hairston should have been excluded because of any "taint" from the phase one session between Detective Irving and Mr. Hairston. Stated in other terms, under Seibert, our task is to determine whether the "just listen to the information I have gathered" and the silent Chaney videotape techniques used by Detective Irving during phase one, or the prewarning phase of his interaction with Mr. Hairston, made the Miranda warnings administered in the second session of their interaction ineffective. As the Supreme Court stated in Seibert:
The threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find that in these circumstances the warnings could function effectively as Miranda requires. Could the warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that juncture? Could they reasonably convey that he could choose to stop talking even if he had talked earlier? For unless the warnings could place a suspect who has just been interrogated in a position to make such an informed choice, there is no practical justification for accepting the formal warnings as compliance with Miranda, or for treating the second stage of interrogation as distinct from the first, unwarned, and inadmissible segment. As a guide to determining the effectiveness of the Miranda warnings given in phase two of the police/suspect interaction, the plurality in Seibert highlighted five factors:
[T]he completeness and detail of the questions and answers in the first round of interrogation[;] the overlapping content of the two statements[;] the timing and setting of the first and second [statements;] the continuity of police personnel[;] and the degree to which the interrogator's questions treated the second round as continuous with the first. 
Applying these plurality Seibert factors to this case, it is clear first that Detective Irving elicited none of the details from Mr. Hairston in phase one that emerged in phase two, and, in fact, the detective asked no questions of Mr. Hairston in phase one, except did he wish to see proof of the fact that Mr. Chaney had already given a statement to Detective Irving. Second, there is no overlapping content between what Mr. Hairston said in phase one and phase two, except that he wanted to tell his side of the story. Thus, the first two factors weigh in favor of concluding that the warnings were effective. As for the third factor, there was close temporal proximity between phase one and phase two of Detective Irving's sessions with Mr. Hairston, and the sessions were conducted in the same interview room. Under the fourth factor, Detective Irving was the same officer during both sessions with Mr. Hairston. While the third and fourth factors weigh in favor of Mr. Hairston, only minimal weight is accorded them because no questions were asked or responses given in phase one. And, application of the fifth factor reveals that the second phase was not “continuous with the first” in that in the first session Detective Irving posed no questions to Mr. Hairston about the details of the murder, as he did in the second phase. Hence, this factor also weighs in favor of concluding that the warnings were effective.
Unlike the first phase in Seibert, we cannot say here that Detective Irving's unwarned questioning of Mr. Hairston in the first phase was so "systematic, exhaustive, and managed with psychological skill," that when "the [detective was] finished there was little, if anything, of incriminating potential left unsaid." Indeed, after Detective Irving's first phase with Mr. Hairston, there was no statement from Mr. Hairston linking him to the specifics of Mr. Johnson's murder, only his uninformative statement that he wanted to tell his side of the story. That statement by itself was insufficient to implicate Mr. Hairston as a principal or an abetter of the murder of Mr. Johnson. Therefore, the administration of the Miranda warnings in phase two of Detective Irving's sessions with Mr. Hairston still could achieve the objective of Miranda--that Mr. Hairston be able to “‘mak[e] a free and rational choice’ about speaking and . . . that a suspect . . . be ‘adequately and effectively’ advised of the choice the Constitution guarantees.” 
Although the third and fourth Seibert plurality factors weigh in Mr. Hairston's favor with respect to whether the second phase Miranda warnings could “adequately and effectively” advise him of his Fifth Amendment constitutional choice about speaking, from the record before us “it is clear that the Miranda warnings as administered [to Mr. Hairston] would meaningfully apprise a reasonable suspect of his right or choice to remain silent and thus were effective in this case.” In fact, Mr. Hairston exercised his free will in providing only "very vague" answers initially to Detective Irving's questions, and in declining to have his statement videotaped, instead insisting on a typewritten statement, which he signed. And nothing in the record persuades us (as nothing at the suppression hearing convinced the trial judge) that Mr. Hairston's will was overborne while he waited for Detective Irving's first session with him, or during that session. Furthermore, as the trial judge found, "[t]his was not Mr. Hairston's first interaction with the police and he was not under age or particularly vulnerable or in any other way [an] impaired person in terms of understanding his rights[,] and having the ability to decline to participate in giving [his] statement. . . ." In short, in light of the legal principles articulated in Elstad, Seibert, Hill, and Gonzalez-Lauzan, and under the specific circumstances of this case, we hold that the trial court did not err by denying Mr. Hairston's motion to suppress his confession.
Our conclusion is not meant to approve a police officer's deliberate decision to withhold Miranda warnings prior to speaking with a person who is under arrest. Indeed, we are mindful of what we said in Brown, "Depending on context, the seemingly benign transmittal of information to an accused may resemble the kind of mental games that largely generated the Miranda decision itself." As we have indicated above, we concluded in Hill, supra, that the factual context there, which began with a detective's instruction, "nobody [is] to advise [the suspect] of his rights until I do," "underscore[d] the plan to intimidate appellant by purposely withholding the advicement of rights meant to counteract the pressure inherent in custodial interrogation. . . . " Furthermore, when the Supreme Court affirmed in Dickerson, the constitutional nature of its Miranda decision, it declared that "custodial police interrogation, by its very nature, isolates and pressures the individual," and also reiterated "that the coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements, and thus heightens the risk that an individual will not be ‘accorded his privilege under the Fifth Amendment . . . not to be compelled to incriminate himself.’” The fact that no incriminating statement was made here during the first phase of Detective Irving's interview with Mr. Hairston does not undercut the importance of the Miranda warnings.

You Decide 8.6
United States v. Blake 571 F.3d 331 (4th Cir. 2009).
On the evening of September 19, 2002, Blake and Terrance Tolbert walked into a Maryland neighborhood with a gun, looking for someone to carjack. Blake pointed out 51-year-old Straughan Lee Griffin, who had just arrived home from work and was in the process of unloading his Jeep Grand Cherokee in front of his home. The men approached Griffin and shot him in the head. They then drove away in his vehicle, running over Griffin in the process. Griffin was transported to a nearby hospital, where he was pronounced dead.
      On October 25, 2002, Tolbert was arrested, and he made statements implicating Blake. Tolbert told police that he was with Blake on the night Griffin was murdered, that Blake had a gun, and that Blake shot Griffin, took Griffin’s keys, and drove his vehicle from the scene.
     Based on this statement, the lead Annapolis police investigator in this case, Detective Williams Johns, applied for an arrest warrant for Blake and a search warrant for Blake’s residence. Using the information in Detective Johns’s application, a Maryland state district court commissioner issued the requested warrants, determined the offenses Blake would be charged with, and generated a statement of charges.
    At around 5:00 a.m. on October 26, a dozen officers executed the warrant at Blake's home. They entered with guns drawn and found Blake watching television. They ordered him to lie on the floor and then arrested and handcuffed him. He was wearing only boxer shorts and a T-shirt. The police forcibly took him away, giving him no time to dress or put on his shoes.
    When Blake arrived at the Annapolis Police Department, he was brought to an intake room. Detective Johns arrived soon after. According to Johns, he and Corporal Thomas Hannon, who was assisting Johns in the investigation, spoke to Blake in a nonaggressive, conversational tone without discussing the possible penalties that Blake faced. Johns testified that Blake was not given the statement of charges at that time because it contained Tolbert’s version of events, and Johns did not want Blake to be able to tailor his version of events to Tolbert’s. According to Johns, Blake appeared calm and was not wearing handcuffs. Johns read Blake his Miranda rights and provided a waiver outlining each right. Blake immediately requested a lawyer. As a result, Johns stopped the interrogation. Thus, at around 5:25 a.m., Blake was transferred to a prison cell and left alone.
    Thirty-five minutes later, Detective Johns returned to Blake’s cell. According to Johns, his purpose in returning was to give Blake a copy of the statement of charges. Johns was accompanied by Officer Curtis Reese, who had driven the police car that transported Blake to the Annapolis Police Department but who was not involved in the investigation.
Johns gave Blake the statement, read the charges as they were described on the first page, and told Blake, “it’s very serious, this is your copy, you need to read it over.” The second and third pages contained a brief description of each charge as well as the maximum penalty for each offense. Unbeknownst to Johns, the maximum penalty listed for the first-degree murder charge was “DEATH.” Although the death penalty is indeed the maximum penalty that can be imposed in Maryland for first-degree murder, Blake himself could not have received the death penalty because he was only 17 years old on the night of the murder, and thus statutorily ineligible for the death penalty in Maryland. The application section of the statement of charges contained the factual summary, that Johns had prepared, of the conduct underlying the charges, including an accusation by Tolbert that Blake was the one who shot Griffin and drove Griffin’s vehicle from the scene.
    As Johns turned to leave, he heard Reese say, in a loud and confrontational voice, “I bet you want to talk now, huh?” Blake did not respond. Detective Johns was surprised by Reese’s remark, and immediately physically guided Reese out of the cellblock. As he did so, he loudly stated to Reese words to the effect of “no, he doesn't want to talk to us, you can't say anything to him, he asked for a lawyer.” According to Johns, he spoke loudly to prevent Reese from saying anything more and to avoid hearing any response that Blake might offer. Johns reported this incident to his supervisor and included a description of it in the homicide report.
    At 6:28 a.m., about one half hour after Johns had last spoken to Blake, Johns returned to the cellblock to deliver Blake some clothing that had been brought for him. According to Johns, Blake appeared calm. When Johns gave him the clothes, Blake asked, "I can still talk to you?" Johns replied, "Are you saying you want to talk to me now?" Blake replied that he was. Johns told him he would have to reread Blake his Miranda rights before they could talk, to which Blake agreed. Blake, fully clothed by that time, was then walked back to the interview room, where he was re-mirandized. Blake never made reference to the death penalty or to Officer Reese’s remark at any time that day.
    Blake proceeded to provide the following account of the night in question. He and Tolbert were walking around Annapolis. At one point Tolbert entered a house and emerged with a gun; when they arrived at Cumberland Court they saw a man holding some clothes beside a car with its hood up. After they walked past the man, Tolbert approached him, pulled out the gun without saying anything, and pointed it at the man's face. Tolbert pulled the trigger once and it clicked. Then he pulled the trigger again, the gun fired, and the man fell. Tolbert rolled the man over and removed the car keys from his pocket. Tolbert and Blake entered the Jeep with Tolbert in the driver's seat. Tolbert drove the Jeep from the scene. They proceeded to Glen Burnie, where they wiped down the Jeep and went to the home of a person that Blake knew as "Smalls," where Tolbert and Smalls wiped off the gun and bullets. Blake explained that, prior to Tolbert approaching the victim, Blake and Tolbert had not been looking for someone to rob. Blake also stated, "I understand I was wrong by being there, but I don't want to be blamed for the murder." 
     At the end of the interview, Detective Johns asked if Blake would agree to a polygraph exam, and Blake said he would. About an hour later, Blake was transported to the Maryland State Police barracks, where he met Corporal Ed White, the state police polygraph examiner. White also found Blake to be calm. After White administered the test, he told Blake that he appeared to have been deceptive, and White asked Blake if he was holding anything back. Blake then admitted that on the day of the murder, he knew Tolbert had a gun. He also admitted that they were looking for someone to carjack, and that Blake initially noticed Griffin and pointed him out to Tolbert. After White informed Johns of the additional admissions, Blake then repeated them to White and also demonstrated how he pointed out Griffin to Tolbert.
    Blake was indicted by an Anne Arundel County grand jury for first-degree murder, second-degree murder, and manslaughter. On June 3, 2003, however, a Maryland state court judge granted Blake’s motion to suppress his postarrest statements on the ground that after Blake invoked his right to counsel, the statements were obtained from Blake as the result of custodial interrogation in violation of Edwards v. Arizona, 451 U.S. 477 (1981). The Maryland Court of Special Appeals reversed, but the Maryland Court of Appeals later reversed the intermediate court, upholding the suppression of Blake's statements. In so doing, the Maryland Court of Appeals rejected an argument that Detective Johns cured any Edwards violation with his loud statement that Blake had requested a lawyer and could not be interrogated further.
     The state then petitioned the United States Supreme Court for a writ of certiorari. The sole issue presented was:
      When a police officer improperly communicates with a suspect after invocation of the suspect's right to counsel, does Edwards v. Arizona, permit consideration of curative measures by the police, or other intervening circumstances, to conclude that a suspect later initiated communication with the police?
    Blake first maintains that the district court erred in refusing to suppress his postarrest statements. We disagree.
       In the case at bar, the district court determined that the conduct at issue also did not “rise above subtle compulsion,” as it would have to do in order to constitute the functional equivalent of interrogation. The district court found that Officer Reese's remark was merely “a snide taunt or a facetious jibe and it represented no more than a caustic commentary by Officer Reese on the evidence.” The court determined it to be “only an isolated, offhand remark” that “invited no reply” and noted that it “was not a lengthy harangue in the presence of the suspect.” Observing that "Officer Reese had no function as an investigating detective or officer in the Griffin murder case," the court found that there was no evidence whatsoever to suggest that Officer Reese had any plan to elicit an incriminating statement. In fact, the court reasoned, in light of the caustic nature of the comment, that "Officer Reese never would have anticipated that [it] would have been likely to elicit an incriminating response." The court concluded that "only a very strained interpretation [of Officer Reese's remark] would allow a finding of any level of coercion or compulsion." 
    The district court further determined that Blake's desire to waive his rights was not motivated by the offhand comment, but rather by his concern with Tolbert's accusation--included in the statement of charges--that it was Blake who was the triggerman. In this regard, the court noted Blake's statement to Detective Johns that he understood he was wrong to be with Tolbert but that he did not want to be blamed for his murder. The court also reasoned that "Blake's argument that he was intimidated by the reference in the charging documents to the appearance of death as a maximum penalty . . . strains credulity given the total absence of any reference to that during subsequent statements." The court additionally found that Blake had been "calm throughout" the process.
     We find nothing in the district court's analysis that warrants reversal. Initially, we note that Detective Johns' provision to Blake of the statement of charges served to inform Blake that Tolbert had named him as the triggerman, that Blake was being charged with first-degree murder, and that the maximum penalty for first-degree murder was the death penalty. Regardless of whether a reasonable officer would suspect that giving Blake the document was likely to garner his cooperation, no evidence suggests that Detective Johns' provision of the statement of charges was anything other than an action "normally attendant to arrest and custody." In fact, it was the officers' legal duty to provide Blake with the document. Accordingly, providing Blake with the statement of charges did not constitute the functional equivalent of interrogation.
     In contrast to Detective Johns's provision of the statement of charges to Blake, which might have been expected to increase the chance that Blake would cooperate, a reasonable officer in Reese's position would not have anticipated that his taunt would elicit an incriminating response. Indeed, had Officer Reese paused to consider the expected effect of his taunt prior to delivering it, he very well might have predicted that it would anger Blake, thereby reducing the chance that he would confess. As it is, it appears that Reese simply issued the caustic comment without ever engaging in that calculus. 
    Blake suggests that Reese's aggressive tone could reasonably have been expected to intimidate him into cooperating. However, any such prospect was greatly minimized by the calm demeanor that Blake exhibited and the completely isolated nature of Reese's remark.5 In fact, the isolated nature of the taunt and the concomitant reduction in its potential to intimidate also significantly lessened the chance that it would be perceived by Blake as some sort of "psychological ploy." In our view, the conversation in Innis would have been more likely to have been perceived as a ploy by the suspect therein.
     Moreover, unlike the officers' conversation in Innis, which informed the suspect that his silence regarding the gun's location could result in serious harm to handicapped children, Officer Reese's remark provided Blake with no substantive information. The primary message that the taunt conveyed was simply that the information in the statement of charges showed Blake to be in a very difficult spot, a proposition that was obvious from a reading of that document. The taunt at most contained an implicit suggestion that Blake would be wise to cooperate in light of the information contained in the statement of charges. In the absence of any explanation of why cooperating, rather than conferring with a lawyer, would be the best choice for Blake, Reese could not have reasonably anticipated that his taunt would convince Blake to change his mind. Thus, we conclude that any marginal coercive effect that Reese reasonably would have expected the remark to have was even more subtle than that of the conversation at issue in Innis.
     Officer Reese's statement is analogous to the statements at issue in United States v. Payne, 954 F.2d 199 (4th Cir. 1992), and United States v. Jackson, 863 F.2d 1168 (4th Cir. 1989), which we held not to be the functional equivalent of interrogation. In Payne, the defendant was arrested for selling cocaine in violation of the conditions of his release pending incarceration for a prior federal conviction. Upon his arrest, he invoked his right to counsel. He was later transported by car to Baltimore to be turned over to the United States Marshals Service. During the ride, an FBI agent received information that execution of a search warrant at the defendant's residence had turned up a handgun. Sometime later, the agent said to Payne, "They found a gun at your house," to which Payne responded, "I just had it for my protection." The defendant was later charged with drug and weapons offenses and unsuccessfully moved to suppress his statement before trial as resulting from custodial interrogation after he had invoked his right to counsel. We affirmed the ruling on appeal. In so doing, we noted that "the Innis definition of interrogation is not so broad as to capture within Miranda's reach all declaratory statements by police officers concerning the nature of the charges against the suspect and the evidence relating to those charges." We emphasized that the statement had not been intended to prompt a response, that it was isolated, and that it was not part of a psychological ploy. 
     In Jackson, the defendant and several other men conspired to transport cocaine. When the defendant was arrested, he was informed of his Miranda rights and of the statutory violations that had prompted his arrest. When he stated that he did not know anything about cocaine, an agent stated, "Just think about Harry Payne," who was one of the defendant's coconspirators. The defendant denied knowing a Harry Payne, and this false statement was subsequently introduced at his trial. We affirmed the admission of the statement on appeal, emphasizing that the statement "was in the form of a declaration, not a question," that it "came only in response in a conversation [that the defendant] himself initiated," and that "it should not be construed as an attempt to solicit information from [the defendant]."
Payne and Jackson reflect the proposition that "in the absence of some police interference with the exercise of the right to counsel of the accused, the Edwards rule is to be strictly and narrowly applied." Although neither statement was designed to elicit an incriminating response, both might be understood as having "tightened the screws" on the suspects such that they might have been persuaded to cooperate. We nevertheless found both statements to amount to no more than the "subtle coercion" that Innis explains is not the functional equivalent of interrogation. Reese's taunt here not only provided less information than the statements in Payne and Jackson, it was delivered in a tone less conducive to obtaining the suspect's cooperation. Concluding as we do, that it had relatively little potential to intimidate Blake (especially in comparison to the knowledge that he was alleged to be the triggerman in a murder at which he knew he had been present), we hold that the remark, like those in Payne and Jackson, was not the functional equivalent of interrogation. We therefore affirm the denial of the suppression motion.
Chapter 9: Eyewitness and Scientific Identifications

You Decide 9.2
Israel v. Odom, 521 F.2d 1370 (7th Cir. 1975).
The complaining witness, Mrs. Marcia Buff, testified at trial that she was awakened during the early morning hours of May 21, 1967, by an intruder standing over her bed, holding a carving knife to her throat. She saw by a luminous clock that it was 5:00 a.m. She testified that it was "just dusk" at this time and that it was "just beginning to get light in the wee hours of the morning." In addition, there was a small night light burning in the bathroom and street light outside of her window. The parties stipulated that sunrise was at 5:44 a.m. on the morning in question. Mrs. Buff testified that she could see in the room and described the intruder as being a Negro, with dark-rimmed glasses, a light beard, moustache, and wearing an overcoat, wash pants, and sports shirt. She testified that the outstanding feature of the intruder's appearance was his glasses.
The intruder forced Mrs. Buff to get out of her bed and, holding the knife at her side and walking behind her, took her into the living room, put her face to the wall, and kissed her shoulders. Remaining behind her, he then took her into a second bedroom, which was unlighted,  and forcibly raped her. During these events,  the intruder questioned the victim concerning whether she had any money and the whereabouts of her husband. Mrs. Buff testified that her assailant left the house by 5:15 a.m.
Following her assailant's departure, Mrs. Buff ran to a neighbor's home and notified the police. Shortly thereafter, two patrolmen arrived. Mrs. Buff described her assailant to the police as follows: "He was African American; he was taller than I; he had a moustache; he was wearing a coat; dark rimmed glasses." Mrs. Buff is 5 ft 4 or 4 1/2 inches tall. Later that morning, a Detective Johnson of the East St. Louis police department brought a sketch of a man to her house. Detective Johnson exhibited the sketch to the victim and inquired: "Does this resemble the man?" Mrs. Buff testified that: "I recognized the picture . . . as the man who attacked me. . . . It looked like him but . . . this man had worn glasses." Detective Johnson then drew glasses on the sketch and she stated: "Yes, definitely, that's him." No other pictures or sketches were ever shown to the victim and the sketch was not available in the police files to be introduced into evidence. 
 The next day, May 22, 1967, Mrs. Buff went to the East St. Louis police station to view a lineup. No photographic record of the lineup was made or preserved and the police report, as reflected in the testimony of the officers present, was incomplete. It appears from the record, however, that all five participants were African American and that no distinctive clothing was worn by the individuals in the lineup. Three of the participants were approximately 6 ft tall or taller, while the petitioner was only 5 ft 5 1/2 inches. Only Odom wore glasses. A police officer testified that the victim identified Odom as her assailant although "she was somewhat reluctant at first." 
 After the lineup, Mrs. Buff and her parents were brought into another room, and Odom was also brought in. The purpose for this showup was apparently to obtain a voice identification. While in her presence, Odom was questioned by the authorities concerning the crime. The victim testified that she was able to identify the defendant's voice as that of her attacker. A police officer testified that the victim stated that she was "sure" that Odom was her attacker and became hysterical when they brought him into the same room with her.
During trial, in addition to testifying concerning the pretrial identifications of Odom, Mrs. Buff identified him as the perpetrator of the crime in the courtroom. 
 Odom's primary claim here is that the pretrial identification procedures described above were unnecessarily and prejudicially suggestive and that, accordingly, the witnesses' testimony concerning these occurrences was improperly admitted and that the in-court identification of defendant by Mrs. Buff was irreparably tainted.
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=0bbe821f-cda2-452b-b2c9-6008919c14b5&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A3S4X-2R20-0039-M55V-00000-00&pdpinpoint=PAGE_1374_1102&pdcontentcomponentid=6391&pddoctitle=521+F.2d+1370%2C+1374+(7th+Cir.+1975)&ecomp=Lg85k&prid=1d0c92ba-a537-442e-a808-54b72ce13086In Stovall v. Denno, the Supreme Court held that if a pretrial confrontation "was so unnecessarily suggestive and conducive to irreparable mistaken identification" as to deny due process of law, a habeas corpus petitioner challenging the admissibility of testimony concerning the pretrial confrontation and a subsequent in-court identification, would be entitled to his requested relief. The Court cautioned, however, that a determination of this issue turns upon "the totality of the circumstances" presented by the particular case. This court, in United States ex. rel. Kirby v. Sturges, identified three interrelated aspects of the "totality of the circumstances" which must be considered in a case such as the present. First, the court must determine whether the police procedures at issue in the case were, in fact, suggestive. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=0bbe821f-cda2-452b-b2c9-6008919c14b5&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A3S4X-2R20-0039-M55V-00000-00&pdpinpoint=PAGE_1374_1102&pdcontentcomponentid=6391&pddoctitle=521+F.2d+1370%2C+1374+(7th+Cir.+1975)&ecomp=Lg85k&prid=1d0c92ba-a537-442e-a808-54b72ce13086If such suggestiveness is found, the court must next consider whether any unusual or exigent circumstances existed which might, at least in part, have justified the use of the faulty procedures.https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=0bbe821f-cda2-452b-b2c9-6008919c14b5&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A3S4X-2R20-0039-M55V-00000-00&pdpinpoint=PAGE_1374_1102&pdcontentcomponentid=6391&pddoctitle=521+F.2d+1370%2C+1374+(7th+Cir.+1975)&ecomp=Lg85k&prid=1d0c92ba-a537-442e-a808-54b72ce13086 Finally, and most critically, the court must examine the reliability of the identification, in spite of the suggestive nature of the confrontation. It is clear that the reliability issue is the determining factor in this examination and unjustified, suggestive procedures may be overborne when there are present sufficient indicia of reliability.
 We have no doubt that the pretrial identification procedures utilized by the police in this case contained elements of suggestiveness, and that the fact that these procedures were consecutively applied increased the possible danger of misidentification.
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=0bbe821f-cda2-452b-b2c9-6008919c14b5&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A3S4X-2R20-0039-M55V-00000-00&pdpinpoint=PAGE_1374_1102&pdcontentcomponentid=6391&pddoctitle=521+F.2d+1370%2C+1374+(7th+Cir.+1975)&ecomp=Lg85k&prid=1d0c92ba-a537-442e-a808-54b72ce13086First, on the day following the attack, the victim was shown a single sketch depicting a Black male and was asked whether "this resembles the man." It is well established that "the display of pictures of [the suspect] alone [is] the most suggestive and therefore the most objectionable method of pre-trial identification." Even when the police refrain from expressly identifying the individual portrayed in the picture as the person they suspect as the criminal, compare production of a single picture necessarily and implicitly suggests such a conclusion. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=0bbe821f-cda2-452b-b2c9-6008919c14b5&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A3S4X-2R20-0039-M55V-00000-00&pdpinpoint=PAGE_1374_1102&pdcontentcomponentid=6391&pddoctitle=521+F.2d+1370%2C+1374+(7th+Cir.+1975)&ecomp=Lg85k&prid=1d0c92ba-a537-442e-a808-54b72ce13086While photographic identification undoubtedly provides an effective and useful investigatory tool, especially in cases such as the present where the crime is fresh and the perpetrator still at large, there can be no doubt that use of a single picture compromises much of this advantage with improper suggestion. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=0bbe821f-cda2-452b-b2c9-6008919c14b5&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A3S4X-2R20-0039-M55V-00000-00&pdpinpoint=PAGE_1374_1102&pdcontentcomponentid=6391&pddoctitle=521+F.2d+1370%2C+1374+(7th+Cir.+1975)&ecomp=Lg85k&prid=1d0c92ba-a537-442e-a808-54b72ce13086
 https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=0bbe821f-cda2-452b-b2c9-6008919c14b5&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A3S4X-2R20-0039-M55V-00000-00&pdpinpoint=PAGE_1374_1102&pdcontentcomponentid=6391&pddoctitle=521+F.2d+1370%2C+1374+(7th+Cir.+1975)&ecomp=Lg85k&prid=1d0c92ba-a537-442e-a808-54b72ce13086The following day, the victim viewed a lineup in the East St. Louis police station and selected Odom as her assailant. The police failed to preserve the event with photographs, but the testimony at the hearing to suppress and during trial reveals the pertinent facts. Odom was the only person in the lineup to wear glasses, the outstanding feature of the assailant's appearance to the victim and an integral part of the description provided the police. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=0bbe821f-cda2-452b-b2c9-6008919c14b5&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A3S4X-2R20-0039-M55V-00000-00&pdpinpoint=PAGE_1374_1102&pdcontentcomponentid=6391&pddoctitle=521+F.2d+1370%2C+1374+(7th+Cir.+1975)&ecomp=Lg85k&prid=1d0c92ba-a537-442e-a808-54b72ce13086Moreover, of the five men appearing, three were approximately 6 ft tall or taller, while Odom's height was only 5 ft 5 1/2 inches. Lineups in which suspects are the only participants wearing distinctive clothing or otherwise matching important elements of the description provided by the victim have been severely criticized as substantially increasing the dangers of misidentificationhttps://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=0bbe821f-cda2-452b-b2c9-6008919c14b5&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A3S4X-2R20-0039-M55V-00000-00&pdpinpoint=PAGE_1374_1102&pdcontentcomponentid=6391&pddoctitle=521+F.2d+1370%2C+1374+(7th+Cir.+1975)&ecomp=Lg85k&prid=1d0c92ba-a537-442e-a808-54b72ce13086 and authority cited therein. With respect to the matter of glasses,  at least, and probably the variation in height as well, the lineup was suggestive for the purpose of the Kirby test. 
After the lineup was completed, Mrs. Buff was taken to an interrogation room for a one-to-one confrontation with Odom apparently in order to obtain a voice identification. During this confrontation, the victim heard the accused undergo  questioning concerning his involvement in the crime. The utilization of voice identification processes may provide significant advantage to both law enforcement personnel and to an innocent suspect in criminal detection and investigation. As with lineup identification, however, the process should present the question of identification to the witness in as neutral a context as practicable. Where, as here, the victim heard the voice of a suspect after she had identified him by sight, it is probably less objectionable than if she had not yet identified him. But a more neutral process could well have been employed.
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=0bbe821f-cda2-452b-b2c9-6008919c14b5&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A3S4X-2R20-0039-M55V-00000-00&pdpinpoint=PAGE_1374_1102&pdcontentcomponentid=6391&pddoctitle=521+F.2d+1370%2C+1374+(7th+Cir.+1975)&ecomp=Lg85k&prid=1d0c92ba-a537-442e-a808-54b72ce13086We next turn our consideration to whether any unusual or exigent circumstances justified the use of the suggestive procedures. The testimony reveals that the usual procedure of the East St. Louis police department in photographic identifications was to present the witness with a group of pictures of different individuals. No justification has been offered to explain the abandonment of this procedure in favor of the single sketch. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=0bbe821f-cda2-452b-b2c9-6008919c14b5&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A3S4X-2R20-0039-M55V-00000-00&pdpinpoint=PAGE_1374_1102&pdcontentcomponentid=6391&pddoctitle=521+F.2d+1370%2C+1374+(7th+Cir.+1975)&ecomp=Lg85k&prid=1d0c92ba-a537-442e-a808-54b72ce13086The sketch in question was shown to Mrs. Buff within hours of the attack. It has been held that face-to-face   showups conducted immediately after the commission of a crime are justifiable. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=0bbe821f-cda2-452b-b2c9-6008919c14b5&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A3S4X-2R20-0039-M55V-00000-00&pdpinpoint=PAGE_1374_1102&pdcontentcomponentid=6391&pddoctitle=521+F.2d+1370%2C+1374+(7th+Cir.+1975)&ecomp=Lg85k&prid=1d0c92ba-a537-442e-a808-54b72ce13086Insofar as these cases  concern exigency justification, they stand for the proposition the requirement of a nonsuggestive identification process should not preclude eyewitness, on-the-scene, identification when it is vitally important for the police to ascertain quickly whether they have captured the right person or should continue their search, while the criminal is still within easy reach. Such considerations are not present here. No appreciable time would have been lost by obtaining additional sketches or photographs to present to Mrs. Buff.
  https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=0bbe821f-cda2-452b-b2c9-6008919c14b5&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A3S4X-2R20-0039-M55V-00000-00&pdpinpoint=PAGE_1374_1102&pdcontentcomponentid=6391&pddoctitle=521+F.2d+1370%2C+1374+(7th+Cir.+1975)&ecomp=Lg85k&prid=1d0c92ba-a537-442e-a808-54b72ce13086Nor do we find any justification for the suggestive elements of the lineup. The suspect could have been required to remove his glasses or, in the alternative, similar glasses could have been supplied to the others in the lineup.
https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=0bbe821f-cda2-452b-b2c9-6008919c14b5&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A3S4X-2R20-0039-M55V-00000-00&pdpinpoint=PAGE_1374_1102&pdcontentcomponentid=6391&pddoctitle=521+F.2d+1370%2C+1374+(7th+Cir.+1975)&ecomp=Lg85k&prid=1d0c92ba-a537-442e-a808-54b72ce13086The existence of unjustified suggestive pretrial identification procedures does not resolve the question however. It is clear that the determinative factor is the reliability of the victim's identification. In reaching this issue, Neil v. Biggers provides the considerations: “The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." 
On consideration of these factors we conclude that Mrs. Buff's identifications of Odom were sufficiently reliable to avoid the due process challenge. https://advance.lexis.com/document/documentlink/?pdmfid=1000516&crid=0bbe821f-cda2-452b-b2c9-6008919c14b5&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A3S4X-2R20-0039-M55V-00000-00&pdpinpoint=PAGE_1374_1102&pdcontentcomponentid=6391&pddoctitle=521+F.2d+1370%2C+1374+(7th+Cir.+1975)&ecomp=Lg85k&prid=1d0c92ba-a537-442e-a808-54b72ce13086The witness testified that, although the crime occurred in the early morning hours, there was sufficient light in her bedroom to permit her to see the intruder. The witness' degree of attention has not been seriously disputed. "She was no casual observer, but rather the victim of one of the most personally humiliating of all crimes." Her attacker was present for at least 15 min and she described considerable conversation during that period.
Petitioner points out the general nature of the initial description Mrs. Buff provided the police and argues that this seriously compromises the reliability of her identifications. Experience teaches, however, that many persons may lack the ability to articulate a detailed description of a person they have seen and yet can still identify him on sight. Thus, the focus must be on inaccuracies rather than generality. Here the description was apparently accurate, although very general.
Petitioner also argues that the record displays some uncertainty in the witness' identifications at the various confrontations. Mrs. Buff testified that she was certain in her identification of the  sketch and that she selected Odom in the lineup and recognized his voice at the showup. A police officer present at the lineup indicated that she was, at first, "reluctant" but did proceed to identify Odom as her assailant. The jury was thus presented with full accounts of the lineup by all the pertinent participants and was properly instructed to consider all the testimony presented, "considering the means of identification; the circumstances   under which he was identified; the opportunity for identifying the said defendant; the description of his apparel as stated by the witnesses; and the probabilities or improbabilities that it was the defendant." Under the facts of this case, we do not consider evidence of some initial reluctance, in the face of a substantial showing of later certainty of identification, to be dispositive since it may well reflect only a natural and proper reluctance to misidentify an innocent party. Here, we note that when Mrs. Buff was confronted with Odom at the voice identification showup, she stated that she was "sure" and became hysterical. Moreover, the confrontations all occurred within less than 48 hr after the assault. Thus, they operated   at a time when the events and faces were fresh in the victim's mind and before her memory had been blurred by the passage of time.
The identification procedures employed in this case were suggestive in varying degree, and unnecessarily so. They are not condoned. The constitutional consideration here, however, is not police behavior but rather reliability of identification. While this case is close, we have carefully studied the testimony and conclude that there was no deprivation of due process.

You Decide 9.2
United States v. Rogers, 387 F.3d 925 (8th Cir. 2004).
On the evening of December 2, 2000, Rogers, a crack cocaine addict living in Kentucky, agreed to accompany his supplier, James Moorman, on a trip to Merrillville, IN. Rogers received some cocaine from Moorman for agreeing to make the trip. Rogers used the cocaine that night, and the pair set out for Merrillville on the morning of December 3, 2000. During the trip, Moorman made numerous calls on his cellular telephone. The two arrived at their destination, the Burger King parking lot in a Merrillville mall, later in the afternoon. When the pair pulled into the parking lot, Moorman was on the telephone, and Rogers noticed an African American male in the same lot, also talking on his cellular telephone. After they parked, Rogers exited the vehicle, and the other man took his place. Moorman and the man then drove away; Rogers ate at the Burger King and looked at some clothing in the mall. After about 25 min, Rogers returned to the parking lot in time to see Moorman return with the same African American male. This passenger exited Moorman's vehicle, entered another waiting car, and drove away. Rogers and Moorman switched places for the return trip, with Rogers driving. About 35 min later, as they traveled south on Interstate 65, Trooper Jason Carmin of the Indiana State Police observed Rogers' vehicle weave in its lane, cross by one to two feet the white (fog) line separating the travel lane from the shoulder and then make an abrupt move to return to the correct side of the line. The trooper stopped the car and, as he approached it, noticed an odd, unidentifiable odor coming from the interior of the vehicle. When he asked for Rogers' license and registration, Trooper Carmin became more suspicious because Rogers and Moorman seemed nervous and avoided eye contact with him. Trooper Carmin also learned by radio that Rogers had several charges for possession of and trafficking in controlled substances. The trooper therefore summoned assistance and a drug-sniffing canine unit. The dog alerted to the presence of drugs in the car, and its handler, Officer Myron Retske, let the dog inside the car. The officer eventually isolated the source of the scent--the vehicle's glove compartment--where he found a brick of cocaine wrapped in plastic and in a week-old Gary, IN, newspaper. As Officer Retske searched the passenger compartment, other officers discovered two wads of currency, totaling approximately $2,000 hidden in a spare tire in the trunk. A search of Moorman yielded an additional $660 from his front shirt pocket. Based on their discoveries, the police arrested Rogers and Moorman and impounded the vehicle. On December 7, 2000, the police continued their search of the car, and discovered a cellular telephone registered to Moorman. In the phone's internal directory, the officers noticed two numbers with northwestern Indiana's “219” area code and a three-digit prefix for the city of Gary. One number had been programmed with the letters "W I N" identifying the owner. This number was registered to Crystal Bryant, who had purchased the cellular telephone associated with it for Owens; Owens had been in possession of this phone for approximately 1 year, from the fall of 2000 to the fall of 2001. Telephone records from Owens' phone indicated two calls to Moorman on December 2, and eight calls on December 3. Police subsequently found Owens' fingerprint on the Gary newspaper wrapped around the seized brick of cocaine, along with Moorman's fingerprint and several unidentified prints. After his arraignment, Rogers moved to suppress evidence seized from the car. He asserted that the stop and search violated his rights under the Fourth Amendment to the Constitution of the United States. Before this motion was heard, however, Rogers decided to cooperate with the Government. In September or October of 2001, almost 10 months after his arrest, he was shown some photographs and asked if any of them depicted the man who he had seen in the parking lot with Moorman. Rogers could not identify any photograph, but he gave a description of the man, along with a statement, and, on October 2, 2001, he petitioned the court to change his plea to guilty of one count of possession with intent to distribute cocaine in exchange for his cooperation. The district court scheduled a hearing for October 26, 2001, to determine whether to accept the guilty plea. During the week preceding this hearing, FBI Special Agent Anthony Riedlinger had attempted to arrest Owens with the help of Owens' probation officer, Louis Fuentes, but had to wait until Owens returned from a cruise. Officer Fuentes, employing a ruse, convinced Owens to report to him in person. Officer Fuentes then notified Agent Riedlinger, who arrested Owens when he reported on October 26, 2001. Agent Riedlinger found Owens in possession of a key chain inscribed with the letters "W I N"--the letters programmed in Moorman's telephone. Owens was taken to a cell in the same federal courthouse where Rogers' plea hearing was scheduled for that day. At his plea hearing, Rogers testified to the facts above. The district court accepted his guilty plea, and marshals then returned him to the holding cell. According to Agent Riedlinger, he told the marshals to ensure that Rogers and Owens were separated; nevertheless, Rogers found himself in the cell with Owens. Rogers claims that, upon entering the cell, he recognized Owens as the man from the Merrillville parking lot. While the two occupied the cell, a probation officer entered and interviewed Rogers to begin his presentence investigation. At some point, Agent Riedlinger arrived to talk with Rogers, saw the two men together in the cell, and immediately told the marshals to separate them.
In March 2002, Rogers moved to vacate his guilty plea. . . . Concluding that Rogers did not demonstrate a fair and just reason to change his plea, the district court denied his motion. Owens was tried the same month. The Government introduced evidence of the facts we have just described, and Rogers testified against Owens. In his testimony, Rogers identified Owens as the man he had seen in the Merrillville parking lot and who drove away with Moorman. On cross-examination, Rogers admitted that he remembered Owens better because he had spent time with him in the same cell on October 26. Asked to describe the man he saw on December 3, 2000, Rogers replied only that the man was "a black guy" and that to him "most black guys look alike." Owens unsuccessfully objected to the in-court identification, contending that his placement in the cell with Rogers on October 26 was unduly suggestive. He also unsuccessfully moved for judgment of acquittal. At the end of the 2-day bench trial, the court found Owens guilty on all counts. Owens then filed a posttrial motion for acquittal or for a new trial, again attacking Rogers' identification and the sufficiency of the evidence. The district court denied this motion. It determined that the identification procedures were reliable even if Rogers' placement in the same cell had been unduly suggestive. Rogers and Owens were sentenced to 51 and 97 months' imprisonment, respectively.
A criminal defendant has a due process right not to be identified before trial "in a manner that is ‘unnecessarily suggestive and conducive to irreparable mistaken identification.’" We conduct a two-step analysis to determine whether an identification procedure comports with due process. First, Mr. Owens "must demonstrate that the identification procedures were unduly suggestive." Second, "we ask whether, under the totality of the circumstances, the identification was reliable despite the suggestive procedures." In this case, the district court allowed, over Mr. Owens' objection, Mr. Rogers to identify Mr. Owens in court. That identification is tainted, according to Mr. Owens, because placing him alone in the same cell with Mr. Rogers, when the latter previously had been unable to identify him from a photo lineup, was unduly suggestive. In this vein, he likens the situation to a "showup," in which only one suspect, rather than a lineup, is presented to a witness. The district court denied Mr. Owens' post-conviction motion for acquittal but nevertheless characterized the identification as "less than ideal." It assumed that the situation in the holding cell "could be construed as a suggestive pretrial identification." The court nevertheless found the in-court identification reliable. Mr. Owens claims that this determination was erroneous, and that, under the totality of the circumstances, the in-court identification was unreliable. The Government contends that the placement of Mr. Rogers in a cell with Mr. Owens represented a simple chance encounter between the two and was not unduly suggestive because law enforcement authorities did not present Mr. Owens to Mr. Rogers. Assuming that the encounter was unduly suggestive, however, the Government further argues that the in-court identification of Mr. Owens was sufficiently and independently reliable under the totality of the circumstances.
We agree with the district court that Mr. Rogers' identification of Mr. Owens was "less than ideal." There is no evidence that the Government intentionally placed Mr. Rogers in the cell to identify Mr. Owens; the lapse in appropriate procedures appears to have been inadvertent. The agents did not present him to the witness for identification. The Government, however, goes too far in characterizing the events of October 26 as a chance encounter. The facts before us indicate that the meeting between Mr. Rogers and Mr. Owens was more than an accidental encounter in a hallway or a snack bar. Both men were in the cell because of their complicity in the same criminal transaction. A probation officer interviewed Mr. Rogers, in preparation for sentencing on that offense, while Mr. Owens sat close by. Mr. Rogers had been shown a picture of Mr. Owens in the photo array a few weeks earlier at most, and he may well have determined--if only subconsciously--that finding the same man in his cell on the day he pleaded guilty was no coincidence. Mr. Rogers' failure to recognize Mr. Owens from the photo array casts suspicion on his "immediate" recognition in the holding cell.
It is irrelevant that police unintentionally placed the two men in one cell. The circumstances were, as the district court assumed, unduly suggestive. Mr. Owens has met his burden of demonstrating the first element of the two-part inquiry. Having determined the identification procedure to be unduly suggestive, we must consider whether, under the totality of the circumstances, Mr. Rogers' in-court identification was reliable despite his having been placed in a cell with Mr. Owens. In assessing the reliability of an identification despite unduly suggestive pretrial procedures, we must consider the five so-called “Biggers factors”: (1) the witness' opportunity to view the suspect at the scene of the crime; (2) the witness' degree of attention at the scene; (3) the accuracy of his pre-identification description of the suspect; (4) the witness' level of certainty in the identification; and (5) the time elapsed between the crime and the identification. Applying these factors to the facts of this case casts very serious doubt on the reliability of this in-court identification. It is not clear from Mr. Rogers' testimony how long he observed the other man in the Merrillville parking lot. He saw the man twice within the space of 25 min, and testified to observing him in the parking lot, entering Moorman's car and driving away, returning, and then leaving in another vehicle. But there is no indication how close the two came to each other or for how long Mr. Rogers observed him. Mr. Rogers' view may have been obstructed at almost every stage: the man held a telephone to his ear in the parking lot at first, and was then observed in a vehicle. As for the second Biggers factor, the record raises doubts about the amount of attention Mr. Rogers gave to events in that parking lot. On one hand, Mr. Rogers was a knowing participant in a criminal transaction and may have been particularly attentive as a result. He also had used cocaine 7–8 hr before arriving in the parking lot, but we defer to the district court's factual determination that he was free from the drug's influence at the time. However, Mr. Rogers played a limited role in the transaction--he only accompanied Moorman in exchange for the cocaine. He appears to have been uninterested in Moorman's scheme; Mr. Rogers exited the vehicle once they arrived at the parking lot, allowed Moorman and the other man to drive away, spent his time eating and looking at clothes until they returned, and then immediately began driving back to Kentucky. There is no evidence that Mr. Rogers ever spoke to the other man or that he even asked Moorman about the transaction. Moreover, Mr. Rogers' statement that "most Black guys look alike" to him casts doubt on any attention that he paid to the man in the parking lot. The record is silent as to the quality or content of any description Mr. Rogers gave of the other man. Again, though, his admitted inability to distinguish African Americans would give us pause in considering his description. Perhaps instructively, at trial the best description Mr. Rogers could give of himself was "a Black guy and I got a little bit of hair." Mr. Rogers expressed no uncertainty about identifying Mr. Owens in court. We give this factor little weight in the present circumstances, however, because the presence at a criminal trial of a single defendant like Mr. Owens can be suggestive and it is not surprising that Mr. Rogers would express certainty with respect to his in-court identification. Indeed, "the most certain witnesses are not invariably the most reliable ones." It is telling that when asked to describe the individual who drove the man identified as Mr. Owens away from the parking lot, Mr. Rogers' certainty faltered, and the most he could manage was in response to prodding from Mr. Owens' counsel:
Q: So, the other person in that car was a male, not a female?
A: It was a back [sic]—yeah, Black male.
In addition, here, where Mr. Rogers' certainty is a product of the suggestive earlier identification in the cell, we are particularly skeptical. Moreover, as certain as Mr. Rogers may have been in the identification at trial, his failure to identify Mr. Owens' photograph before the suggestive encounter makes his actual degree of certainty doubtful.
Finally, consideration of the fifth Biggers factor reveals that a significant amount of time elapsed between the parking lot transaction and his identification of Mr. Owens. Mr. Rogers did not recognize Mr. Owens until, as a cooperating witness, he walked into the holding cell on October 26, 2001, almost 11 months after seeing the man in the parking lot and weeks after failing to identify Mr. Owens' photograph. See Cossel, 229 F.3d at 656 (7 months between encounter and identification would "be a seriously negative factor." He did not identify Mr. Owens in court for a further 5 months. We conclude that Mr. Rogers' identification was unduly suggestive and, under the totality of the circumstances, unreliable, and it should have been excluded. At oral argument, the Government conceded that if we found the identification to be inadmissible, its admission would not be considered harmless. We agree that the error was not harmless, and therefore reverse Mr. Owens' convictions. Because we reverse based on trial error, we remand to the district court for further proceedings consistent with this opinion.

You Decide 9.3
Dispensa v. Lynaugh, 847 F.2d 211 (5th Cir. 1988).
In the early morning hours of July 16, 1981, Theresa Ellen Barthel was alone in her apartment in the City of Houston, TX. After returning from work the previous evening, she had cleaned the apartment thoroughly, then gone to bed at about 10 p.m., leaving a hall light and the lights on a patio adjoining her bedroom illuminated as a security measure since her husband was away. At about 4 a.m., she awoke to find a man standing by her bed with his hand over her mouth. The lights she had left on when she went to bed illuminated the area well, giving her a clear view of her assailant. After a brief struggle, he began to rape her. During the rape, there was a pillow over Barthel's face. When she pulled the pillow away after the rape, she saw the assailant, who was wearing only his pants, grab his shirt and the rest of his belongings and leave the apartment. After the rapist had gone, Barthel found that both her apartment door and a window were open. She had complained to the management of the apartment complex many times about faulty locks on the windows; apparently the rapist had entered the apartment through one of these windows. Immediately after the rape, Barthel telephoned her husband, who was attending a training school in Florida, then reported the crime to the police. She described the rapist as being 5 ft 8 in. to 5 ft 9 in. in height, weighing 160–170 pounds, and having brown wavy or curly hair. She said she didn't know whether or not the rapist had a moustache. She did not know Rosario Dispensa, who had recently moved to Houston from another city and who lived in her apartment complex. Dispensa is approximately 6 ft tall; weighed 180–185 pounds; wore glasses; and had straight hair, prominent tattoos on his arms and shoulders, a large amount of body hair, and a prominent moustache. In addition, he offered the testimony of a female companion that he has a visibly deformed penis and that the deformity is perceptible during intercourse. As a result of having been mugged shortly before the date of the rape, he had cuts on his hip and scabs and rough places on the palms of his hands. A police officer, J. L. Pratt, who had been at the apartment complex on another matter, testified that he had seen Dispensa at 3:00 a.m., wearing only his trousers and carrying his shoes and what appeared to be a shirt, heading toward his apartment, which was a few doors away from the Barthels'. Dispensa testified that frequently upon arriving at the apartment complex after his long day of work, he went to the swimming pool and soaked his feet before proceeding to his apartment. Following the rape, the police found seven sets of fingerprints in the apartment, none of which were identified as Dispensa's. They found a cigarette butt, but it was not from the brand Dispensa smoked. Dispensa's friend, Sandra Fay Wilson, testified that he was asleep in bed with her at 4:00 a.m. on July 16. The police examined the sheets on Barthel's bed. Although Dispensa is hirsute, the police found only two hairs that were not Barthel's or those of her dog or cat, plus a few other fragments too short to identify. A toxicologist testified that these two hairs were pubic hairs and that one had microscopic characteristics similar to those of a pubic hair furnished by Dispensa pursuant to a court order. Dispensa was the manager of Papa Joe's Seafood Restaurant. His duties required him to remain after the restaurant closed at 11:00 p.m., checking receipts and preparing for the next day's operations. He usually returned home about 2:00 a.m. Houston police detectives L.W. Henning and Ralph Yarborough decided to take Barthel to Papa Joe's to see if she could recognize Dispensa as her assailant. They arrived at the mall in which the restaurant was located at about 11:00 a.m. and learned that the restaurant would not open until 11:30. They therefore strolled through the mall for about half an hour. During their walk, the police asked Barthel to observe the crowd and let them know if she recognized anyone. Then, they testified, without ever having explicitly told her the purpose of their trip, they took her to eat lunch at Papa Joe's. After he had finished eating, Yarborough excused himself from the table and asked the cashier if he could speak to Dispensa. He was directed to Dispensa, who was in a back office in the kitchen area at the rear of the restaurant. Yarborough there informed Dispensa that he was a suspect in a sex crime and told him that he could either walk through the restaurant so that the victim could see him or be subject to arrest and a police lineup. Dispensa chose to walk through the restaurant. None of the witnesses to the identification procedure agreed precisely on how it was conducted. At the trial, Detective Yarborough testified that he remained in the office while Dispensa walked through the restaurant. He said he then asked Dispensa to wait while he checked with Henning to see if Barthel had reacted as Dispensa walked by. In a whispered conversation at the table, Henning told him that nothing had occurred. Consequently, Yarborough returned to Dispensa's office and asked him to walk through the restaurant again. This time, however, Yarborough stated, he preceded Dispensa from the office and waited for him at the cashier's desk. He said that Dispensa then walked through the restaurant a second time, taking a different path that placed him directly in front of Barthel, and finally walked up to Yarborough. Yarborough asserts that he then looked over Dispensa's shoulder to see if there had been any reaction and saw Henning struggling to keep Barthel seated. Detective Henning testified at the trial that he did not know what Dispensa looked like when he and Yarborough took Barthel to the restaurant and that he did not signal to her to look at Dispensa as he approached their table. Instead, he related, he merely told her to be generally observant of the people in the restaurant. He testified at the suppression hearing that, while Yarborough was away from the table, Barthel told him that a man had just passed by who looked like the rapist but that Henning himself had only gotten a glimpse of the man to whom she referred. He stated that he next saw Dispensa when Dispensa was approaching the cashier's desk. Although he said that Yarborough was also in that general area, he denied seeing the two men walk to the register together and could not remember how close together they were standing when Barthel turned around on her own volition, saw Dispensa clearly, exclaimed that he was the rapist, and burst into tears. Barthel's testimony at the suppression hearing contradicted portions of both Yarborough's and Henning's accounts. She asserted that Yarborough did not return to the table after he excused himself. More importantly, she testified that Henning "told me to talk to him like I was his brother [sic], just start talking to him, and he said when I tell you to look, I want you to look. So when Mr. Henning told me to look, walked past me [sic], and I didn't get a look at his face, but then he walked by me again and that's when I ran out" of the restaurant. She testified that she did not know the purpose of the trip to the restaurant but she was pressed by counsel for Dispensa with the question: "Now, didn't you suspect why he [Henning] was asking you to act in a peculiar fashion?" Barthel answered, "At that point I did." Counsel persisted, "So at that point then you knew what you were supposed to see when you looked around?" Barthel responded, "Well, at that point when somebody tells me to look behind me--I'm really getting mad," and she asked for a recess. She stated that the first time Henning told her to look, Dispensa walked past before she could see his face, but that when Henning told her to look a second time, she saw Dispensa well and recognized him immediately. She also asserted that she did not see Yarborough with Dispensa in the restaurant and that she fled the dining room area after making the identification. At both the suppression hearing and the trial, Dispensa described making two trips through the restaurant. He stated that the first time he walked by every table, checking to see that the place settings and arrangements of condiments were in order, and then returned to his office, where Yarborough was waiting. Yarborough then left the office "to check on something" and, upon returning, told Dispensa that someone had not gotten a good look at him. He therefore asked Dispensa to walk through again, and Dispensa reluctantly complied. Dispensa testified, however, that on the second trip Yarborough followed behind him, and that rather than meandering through the tables as he had done on the first pass he proceeded directly to the receptionist's desk at the front of the restaurant. There, he said, he and Yarborough talked a few minutes before he returned to his office. Shortly thereafter, Yarborough entered the office with a uniformed policeman to make the arrest. Dispensa stated further that he did not notice any commotion indicating that an identification had been made while he was in the restaurant.
Arguing in state court that the identification procedure was impermissibly suggestive, Dispensa's trial counsel moved to suppress any in-court identification of Dispensa and any reference to the pretrial identification. After a hearing on this motion, the trial court ruled that the identification procedure was fair and reasonable under the circumstances and that the procedure was not so impermissibly suggestive as to violate Dispensa's due process rights. The court stated that the reliability of the identification was an issue for the jury.
Dispensa's testimony at the federal hearing differed from his prior account of the identification procedure. Instead of describing a single full pass through the restaurant and a second abbreviated trip to the receptionist's desk and back, he asserted that he was asked to make two full passes through the restaurant before he and Yarborough walked together from his office to the receptionist's desk and talked a few minutes. Dispensa testified that Yarborough left him in the office between the first and second and the second and third passes while he checked with Henning in the restaurant to see if Barthel had made an identification. He explained that he failed to describe the second full trip through the restaurant during his testimony in the trial court because his trial counsel had told him that the court would be less likely to believe his account if he testified to more trips than Yarborough and Henning admitted. At his federal hearing, Dispensa also testified for the first time that, during his first walk through the restaurant, he greeted the people at each occupied table as he checked their table settings. Because he did not know where Barthel and Henning were seated, he testified, he could not tell when the identification actually was made.
In addition to offering these modifications to his account of the identification procedure at the federal habeas hearing, Dispensa offered expert psychological testimony about the significance of Barthel's choice of words and her apparent emotional state at the suppression hearing. Dr. Fred Fason explained that Barthel's repeated assertion that Henning told her when to look and her stated anger during cross-examination about that testimony suggest that she unconsciously relied on the police to identify the rapist for her and that she felt guilty and angry with herself for not being able to make the identification alone. By analyzing the transcript of her testimony, Dr. Fason also concluded that Barthel's assertions that she did not know why the police were taking her to the mall, despite the fact that there was only one obvious reason for such a trip, suggest that she had suspended her critical thinking and therefore was especially susceptible to suggestion. In response to questions posed by Dispensa's habeas counsel about discrepancies between the description of her assailant that Barthel gave to the police and Dispensa's actual appearance, Dr. Fason testified that she most likely would have noticed if her attacker was especially hairy, that she would also have been likely to notice prominent tattoos, and that poor descriptions such as the one she offered the police after the attack are consistent with a determination that she had repressed her memory of the attacker and could no longer accurately recall his appearance. Finally, he offered general testimony about the poor performance of victims in witness-identification experiments and about the low correlation between witnesses' expressed confidence in the identifications they have made and the accuracy of their choices. The State called no witnesses at the federal evidentiary hearing. Examining the transcripts of the testimony in state court, the magistrate concluded that Henning had testified falsely when he said he had not directed Barthel to look at Dispensa. He found that Barthel had identified Dispensa as the rapist "only because she saw him standing with officer [sic] Yarborough and was prompted to look at petitioner by officer [sic] Henning" and that her later in-court identification of Dispensa at the trial "was the direct result of the identification by her at Papa Joe's Restaurant on July 23, 1981." He concluded that, therefore, the procedure was "highly and impermissibly suggestive and was intended more to confirm their belief in petitioner's guilt than in seeking [sic] a truthful resolution of the matter." Referring to Dr. Fason's testimony, the magistrate stated,
Although Dr. Fason's testimony may explain why she [Barthel] relied upon Henning and Yarborough to make the selection for her, it is obvious from the record that she did so and thus would have been obvious without Dr. Fason's testimony. . . . [I]t is clear from the record that complainant relied upon Henning and Yarborough to point out the petitioner to her.
Unnecessarily suggestive out-of-court identifications are not per se subject to exclusion, however; they are admissible if, under the totality of the circumstances, they are sufficiently reliable. In reviewing the constitutionality of the admission of out-of-court identifications, courts are to assess their reliability by analyzing such factors as the witness's opportunity to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of the witness's prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors, the court ruling on admissibility must weigh the corrupting effect of the suggestive identification itself.
The federal magistrate, expressly found Dispensa to be "a credible, truthful witness," and stated, "I accept his testimony given in the [federal] evidentiary hearing as truthful." He found that Dispensa spoke to all parties in the dining room on the first walk through the restaurant, that Barthel did not identify Dispensa on the first walk-through, that Yarborough conferred with Henning at the table where Barthel was sitting between each pair of walks through the restaurant, that Dispensa made a total of three walks through the restaurant, that Yarborough accompanied Dispensa on the third walk-through, that Henning told Barthel to look at Dispensa while Dispensa and Yarborough stood together talking at the cashier's desk, and that Barthel thereupon made the identification. The magistrate further found that Henning testified untruthfully when he denied having told Barthel to look in Dispensa's direction and that Barthel testified untruthfully when she stated that Yarborough did not return to the table to confer with Henning. The magistrate found that Barthel identified Dispensa at the restaurant "only because she saw him standing with officer [sic] Yarborough and was prompted to look . . . by officer [sic] Henning." The district court adopted these findings.
Based on its adoption of the magistrate's findings of fact, the district court held that the identification procedure was unfair and unnecessarily suggestive. We affirm these findings as not clearly erroneous. Bound by these findings, we reach the same legal conclusion the district court did. Barthel expected to be presented with a suspect to identify; Dispensa was presented to her 3 times, as Henning told her to look, with Yarborough and Henning conferring in whispers to see whether she had made an identification yet; Yarborough walked with and stood by Dispensa in Barthel's field of view, thus essentially telegraphing to Barthel, who had until that time failed to perform on cue, "This is the one."
Our conclusion that the procedure was unfair and unnecessarily suggestive does not mandate the suppression of testimony about the identification if that identification is sufficiently reliable. We must therefore test the reliability of Barthel's identification by the measures the Supreme Court set forth in Neil v. Biggers. Of these, by far the most significant in this case is the lack of accuracy of the witness's prior description of the criminal. Barthel described an assailant shorter and lighter than Dispensa. These discrepancies, considered alone, are not great enough to undermine the reliability of the identification conclusively. Overwhelmingly, more significant are those features that Barthel failed to include in her description of the assailant, particularly his moustache, his general hirsuteness, and the striking tattoos. This pronounced incongruity between the assailant described and the suspect identified lead us to conclude that the identification was unreliable and should have been suppressed. Barthel's identification of Dispensa was the primary, if not the sole, basis for his arrest. Her out-of-court identification made possible her later identification of him at the hearing on the motion to suppress and at the trial.
If both identifications had been suppressed, the remaining evidence would not have been sufficient to support Dispensa's conviction. The only other evidence to link Dispensa with the assault was the pubic hair sample and Officer Pratt's testimony. Even the expert who testified about the similarities between the hair samples could not categorically state that one of the two hairs removed from Bartel's sheets came from Dispensa. Given Dispensa's hirsuteness and the testimony of his companion that he shed hairs liberally on the sheets at his home, it is noteworthy that only one hair arguably Dispensa's could be found on the victim's sheets if the assailant were Dispensa. None of the seven fingerprints found in the complainant's apartment matched Dispensa's. Neither the State nor Dispensa's trial attorney ever established that semen samples taken from Barthel and the sheets on her bed matched Dispensa's blood type. The cigarette found in the ashtray in her apartment was not the brand smoked by either Dispensa or Barthel. While Officer Pratt said he saw Dispensa at 3:00 a.m. going to his apartment, Dispensa's friend Wilson testified that Dispensa was asleep between 3:00 and 5:00 a.m. on the morning the complainant was raped. The record shows no basis for concluding that even Pratt's identification was not a result of suggestion. The record therefore could not support a conviction of Dispensa without Barthel's in-court identification, which was buttressed by the identification she made at Papa Joe's Seafood Restaurant. The out-of-court identification was inadmissible and the in-court identification could not stand without it. The district court correctly found that the procedure followed in suggesting Dispensa as the suspect "was likely to and did result in a substantial likelihood of irreparable misidentification."

You Decide 9.4
United States v. Emanuele, 51 F.3d 1123 (3rd Cir. 1993).      
Defendant Joseph Arthur Emanuele was convicted of robbing two Integra Banks, the "Millvale Bank" and the "Waterworks Bank." Martha Hottel, a teller, observed the man who robbed the Millvale Bank standing at a writing table before he came to her window and demanded money. Five weeks later, when shown a six-photo array, she selected a photograph of the defendant but stated that she "wasn't one hundred percent sure" of her choice. When shown a second array several weeks later, Hottel selected the photograph of someone other than defendant. The bank's security cameras malfunctioned without photographing the robber, and latent fingerprints from the writing table and bank door did not match those of defendant. The man who robbed the Waterworks Bank demanded money from Lorraine Woessner, a teller. Woessner observed the man for several minutes at close range in the well-lit bank lobby. Shown a six-photo array that included a photograph of defendant shortly after the crime, Woessner was unable to identify the robber. App. at 44, 48. The one fingerprint taken from the Waterworks Bank did not match that of defendant, but the Waterworks Bank security cameras did photograph the robber. The two tellers were subpoenaed by the government to testify, and after checking in at the U.S. Attorney's Office, they were directed to sit outside the courtroom. There, the tellers saw defendant led from the courtroom in manacles by U.S. Marshals. Though later Woessner could not remember for certain who had spoken first, outside the courtroom the two tellers talked to each other about defendant, telling each other "it has to be him." Having learned of the encounter, defendant's attorney moved to suppress the tellers' anticipated in-court identification testimony as violative of defendant's right to due process, or in the alternative, for a court-ordered lineup. The government conceded that it had been "careless," App. at 52, but argued that because the confrontation was inadvertent no constitutional violation had occurred.
The court denied the motion as to the testimony of Hottel, the teller who had identified defendant's photograph in one photo spread but selected someone else in another. As to the testimony of Woessner, who had failed to identify defendant's photograph in the only array she was shown, the court held a hearing out of the presence of the jury and ruled that the second teller's identification testimony was admissible. The court made no specific findings of fact. Both tellers took the stand and identified defendant as the robber. During trial, three government witnesses, who knew defendant, testified that he was the person in the Waterworks Bank surveillance photographs, and three defense witnesses, who also knew him, testified that defendant was not the person in the photographs. An expert witness, a surgeon, testified that he had compared the dimensions of defendant's face with those of the face of the robber in the Waterworks Bank photographs and determined that defendant could not be the robber in the pictures. Two government experts testified in rebuttal that the surgeon's calculations were unreliable. Defendant also challenges the district court's order requiring him to shave his moustache and put on glasses similar to ones worn by the Waterworks robber. At trial, the court had defendant wearing the glasses stand silently before the jury, which was instructed that "these are not glasses that were found anywhere. They have been supplied by the government." No witness was on the stand at the time.
After his conviction, defendant moved for a new trial based on the admission of the tellers' identification testimony and the orders to shave and wear glasses. The court held another hearing, at which time two receptionists from the U.S. Attorney's Office testified that they had told the tellers to sit outside the courtroom, as is the government's custom, without any specific instruction from the prosecutor on the case. The court denied the motion for a new trial.
A government identification procedure violates due process when it is "unnecessarily suggestive" and creates a "substantial risk of misidentification. A "suggestive and unnecessary identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability," for reliability is the "linchpin in determining the admissibility of identification testimony." To determine reliability, we examine the identification procedure in light of the "totality of the circumstances." Riley. These circumstances may include the witness' original opportunity to observe a defendant and the degree of attention during that observation; the accuracy of the initial description; the witness' degree of certainty when viewing a defendant or his image; and the length of time between the crime and the identification procedure.
We evaluate first whether the interaction was unnecessarily suggestive. It is undisputed that the two tellers were sitting outside the courtroom because the U.S. Attorney's receptionists had told them to be there, and that defendant was walked past them in handcuffs with a U.S. Marshal on each shoulder. Defendant had not asked to leave the courtroom--he was ordered out when the court granted the government's motion to have defendant shave. We conclude that the confrontation was caused by the government, albeit inadvertently, and that to walk a defendant--in shackles and with a U.S. Marshal at each side--before the key identification witnesses is impermissibly suggestive.
The more difficult question is whether this impermissibly suggestive confrontation created a "substantial likelihood of misidentification," in light of the totality of circumstances. Riley. First, though we will consider the reliability of each teller's testimony separately, we note several Biggers factors common to both: the two tellers (a) had several minutes to observe the robber, (b) at close range, (c) in a well-lit space. We agree with the government that the unobstructed view of both tellers during the robberies would strengthen the reliability of their testimony. But this point also supports defendant's position. The tellers' protracted and clear view of the robber highlights Woessner's failure to select defendant's photo in the array and Hottel's choice of a different photo in the second array shown her. Second, Woessner testified that she recognized defendant immediately upon seeing him in the hallway. We will assume that her testimony was truthful and sincere. Third, in the courthouse the two tellers observed defendant together and immediately spoke to each other about his identity, prior to their testifying. This conversation may well have overwhelmed any doubts Hottel or Woessner retained after observing defendant in the hallway, though given the indication that Hottel spoke to Woessner first, it is the reliability of Woessner's identification that is more impugned. Woessner testified: 
Q. Did Miss Hottel tell you that was him? 
A. Ah, not right away, only when he was down the hall she mentioned that. I mean, she spoke very softly and said that she was very upset because she didn't remember--she didn't think she remembered what he looked like, but when she saw him she knew exactly that's who it was. 
. . .
Q. She didn't say that was him to you?
A. I think we both looked at each other and we were kind of it's, it has to be him (witness nodding.) . . . 
Finally, we consider a crucial difference between the circumstances of each teller's identification: the strength of the initial identification. As we noted in Reese, whether subsequent viewings create a substantial risk of misidentification may depend on the strength and propriety of the initial identification. Upon viewing her first photo spread, Hottel recognized defendant as the robber. Her slight qualification--not being "one hundred percent sure"--does not significantly diminish the import of that identification, nor does her subsequent selection of the photograph of another person in a second array. In contrast, having scrutinized an array that included his photograph, Woessner failed to identify defendant as the robber. All the photo spreads were viewed close in time to the respective robberies. 
Thus, we face a situation in which the one eyewitness who would be able to identify the Waterworks robber and place defendant at the scene of the crime, could not, despite her opportunity to observe, recognize him in a photo array. That failure, coupled with the highly suggestive viewing of the defendant in conditions reeking of criminality, bolstered by the comments of another witness, render the in-court identification unreliable. The reaction "it has to be him" greatly diminishes the reliability of Woessner's identification and renders manifest the impact of her viewing defendant. In effect, the viewing communicated to the witness that the defendant was the robber, and there was no reliable evidence that she would have so concluded or testified absent that viewing. Under such suspect circumstances, there clearly was a substantial risk of misidentification. It was thus an abuse of discretion to admit Woessner's in-court identification testimony, in violation of defendant's right to due process. As to Hottel, we conclude that her identification was reliable, and thus the admission of her testimony was not an abuse of discretion. 

You Decide 9.5
People v. Scott 
283 A.D.2d 98 (2001)
728 N.Y.S.2d 474 (2001)
The People of the State of New York, respondent, v. John Scott, Bracken, P. J.
The People assert that the defendant, John Scott, was one of two masked men who robbed a grocery in Queens on March 21, 1996. Yet of the several persons who were present in the grocery at the time of the robbery, the People produced none who, at trial, identified the defendant as one of the robbers. There is no proof that the defendant ever admitted to having participated in the robbery, and there is no physical evidence linking him to that crime. The only evidence linking the defendant to the crime consists in the proof of a single extrajudicial identification made by one witness based not on the defendant's appearance, but based instead on the defendant having spoken a few words in a voice which the identifying witness thought matched that of the taller of the two robbers. In our opinion, the convictions are against the weight of the evidence and, therefore, in the exercise of our factual review power, we reverse the judgment of conviction and dismiss the indictment.
The chief witness for the People was William Vizcarrondo, who worked in the grocery where the robbery occurred. As alluded to above, and as will be elaborated upon below, Vizcarrondo's trial testimony concerning his extrajudicial voice-based identification of the defendant constitutes the cornerstone of the People's case. Yet Vizcarrondo was not produced at the pretrial Wade hearing which was conducted in this case in order to permit the People to meet their burden of proving that the extrajudicial voice-based identification made by their principal witness was untainted by any suggestiveness.
In order to meet their burden at the Wade hearing, the People called one witness, Detective Gary Russo, who had been assigned to investigate the robbery. Detective Russo testified that, several days after the robbery, Vizcarrondo was asked to view a lineup which included the defendant. Vizcarrondo initially viewed the six participants in the lineup, while they were arrayed in a seated position. He then asked Detective Russo to have them stand, and to have each of the participants utter the phrase "[R]un the shine," a phrase which the taller of the two robbers had used during the robbery. It was only after the participants had each uttered these words that Vizcarrondo identified the defendant.
Following the Wade hearing, the Supreme Court denied that branch of the defendant's motion which was to suppress the use of any evidence relating to Vizcarrondo's extrajudicial identification. The Supreme Court stated, in its decision and order, "[t]here was nothing elicited in the testimony [at the Wade hearing] to indicate that the voice identification was suggestive in any way."
At trial, Vizcarrondo testified that at approximately 8:00 p.m. on March 21, 1996, two men, both wearing black jeans, black leather jackets, black ski masks, and knit hats, and both brandishing guns, burst into his father's grocery and announced a robbery.
Vizcarrondo described the taller of the two men, that is, the person who the People now theorize was the defendant, as being approximately 6 ft and 1 in. tall, and weighing approximately 170 pounds. The taller man had a voice which Vizcarrondo described as deep, and which he also described as being a little different than any he had ever heard. Vizcarrondo was also able to observe the color of the portion of the taller man's skin which was exposed by a small opening in the mask in the area of his eyes. Based on this, he testified that the taller of the two robbers was a light-skinned Black man.
During the robbery, the taller man asked Vizcarrondo to produce the cash in the cash register, and to "run the shine." Vizcarrondo took this as being a request to turn over his jewelry. Vizcarrondo surrendered the cash, as well as his chain and ring. The taller robber told him that he could keep his wedding band. Before leaving the grocery with his accomplice, the taller robber asked about the score of a basketball game, and asked for cigarettes and a match. The entire incident lasted approximately 4 min.
At trial, Vizcarrondo testified that he could not identify the defendant as the taller of the two robbers. He stated that "too much time [had] passed." He also conceded that such an identification was impossible because the taller of the two robbers had been masked. He testified only that, at the lineup conducted several days after the robbery, he pointed to the person who had the same voice as the taller of the two robbers.
Questioned about the circumstances surrounding his prior, extrajudicial identification of the defendant, Vizcarrondo testified that the defendant was one of two men whose skin tone was noticeably lighter than that of the other participants in the lineup. He also testified that he did not select any of the lineup participants until after each of the participants in the lineup had repeated the phrase "[g]et on the floor, and run the shine." In describing the similarity between the voice of the defendant as it sounded at the time of the lineup and the voice of the taller robber, Vizcarrondo testified that both were "deep" voices.
At trial, the People produced, as witnesses, other individuals who were present in the grocery during the course of the robbery. None of these witnesses identified the defendant. Their testimony tends to confirm the People's theory that one of the two robbers had a voice which was "rough," "deep," "cool," "commanding," or "hard."
At trial, the police also produced Detective Russo, who, as mentioned above, had conducted the lineup which included the defendant. The prosecutor elicited from this witness the fact that the lineup was conducted after he had spoken to an individual named Eric McIlwain, who was not called as a witness.
On appeal, the defendant contends, inter alia, that the Supreme Court erred in failing to suppress Vizcarrondo's testimony with regard to the pretrial voice identification of the defendant, the only competent evidence of guilt in this case. In this regard, the defendant asserts that the People failed to meet their burden of proving that the voice-based lineup identification was not unduly suggestive. Next, he argues that the jury verdict is against the weight of the evidence. We agree with the defendant that the jury verdict is against the weight of the evidence.
The chief witness for the People in this case made no visual identification of the defendant at trial, and conceded his inability to do so. This witness also made no in-court identification of the defendant based on his presumed ability to recall the supposedly distinctive voice of the tall robber, because the defendant was not compelled to speak at trial, and no recording of his voice was offered into evidence. Such voice exemplars are admissible. Had such an exemplar been admitted into evidence, the jury would at least have had both the opportunity to hear for itself the supposedly distinctive character of the defendant's voice and, consequently, the opportunity to assess the reliability of the claim that the complaining witness was able to distinguish that voice from all others.
As the result of the absence of any such voice exemplar as part of the record on appeal, this Court is now in the same position as that in which the jurors found themselves at the time of trial. While we do have testimony of several witnesses who characterized the tall robber's voice as "rough," "deep," "hard," and so on, we note that these witnesses (unlike Vizcarrondo) were apparently never offered the opportunity to compare this supposedly distinctive voice with the voice of the defendant. We thus have nothing more than the opinion offered by a single witness, Vizcarrondo, that this voice and the voice of the defendant were one and the same.
The People argue, in their brief, that Vizcarrondo's lineup identification was based on his observation of the physical attributes displayed by the defendant at the time of the lineup, as well as upon his voice. The People argue accordingly that the reliability of this lineup identification is bolstered by certain proof which tended to show that the robbery occurred under bright lights, which gave Vizcarrondo an "ample opportunity" to "observe the defendant's complexion and height." However, the weight of the evidence supports the conclusion that Vizcarrondo would not have been able to make an identification based on factors other than the supposed similarity of the defendant's voice and that of the taller perpetrator. This is reflected in the following testimony, elicited from Vizcarrondo on cross-examination:
"Q. In any event, you testified--you said that you recognized the person that robbed you in part by his skin color and height, correct sir?”
"A. Correct.”
"Q. I want you to look around this room and look over there, look very carefully. Do you recognize this person as the person who robbed you?”
"A. I recognize him from the lineup, but I don't recognize the person that robbed me because I couldn't see because of the mask.”
"Q. Right. But you said you recognized him by his skin color and height. And you’re saying you recognized him at the lineup. But looking at him here--take a good look at him, sir. Right now, July 14, 1997, you can't say it's the guy that robbed you, right?”
"A. I can't say that.”
"Q. You're looking at his skin color, right?”
"A. Yes.”
"Q. You're looking at the greater half of his body, right? Can't recognize him, can you?”
"A. No.”
"Q. And connect him with this robbery?”
"A. No.”
"Q. So doesn't it come down to this, that you're looking at his skin color, you're looking at him right here, and you're saying it's not enough. And the only way you can connect him is with the lineup when you heard someone speak, correct?”
"A. Correct.”
"Q. Thank you."
The defendant is correct, then, in arguing that the judgment of conviction rests entirely on Vizcarrondo's voice-based identification of the defendant from a police-arranged lineup. Even assuming, without deciding, that the testimony relating to this out-of-court procedure was properly admitted into evidence, the fact remains that the jury had no opportunity to hear the defendant's voice, or to assess its allegedly distinctive quality. Furthermore, the jury had no opportunity to hear the voices of the five other members of the lineup from which the defendant was selected. Had the People proved that their principal witness selected the defendant from a lineup consisting of other deep-voiced men, then the weight to be afforded to any evidence relating to such identification would certainly be stronger than if it were to appear that the defendant was instead chosen from a lineup in which every other participant had a voice noticeably higher than his own. As it stands, the record is silent as to the reliability of the voice-identification, and, aside from whether the silence of the record in this respect would warrant suppression of any evidence relating to the lineup identification as a matter of due process, we find that, in the circumstances of this case, the People's failure, at the Wade hearing, to demonstrate more clearly the reliability of the identification procedure employed by the police resulted in a distinct failure of proof at the time of the later trial.
In sum, the verdict is against the weight of the evidence, and the judgment must therefore be reversed, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens. . . . Ordered that the judgment is reversed, on the facts, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

You Decide 9.6
State v. Loucks, 656 P.2d 480 (Wash. 1983).
Allen Boyd Loucks appeals his conviction in King County Superior Court for second degree burglary. Defendant's conviction rested entirely on evidence provided by police dog Tally of the Seattle Police Department's canine unit. Loucks claims the evidence presented against him was insufficient as a matter of law to sustain his conviction. We agree with defendant that dog tracking evidence standing alone is insufficient to support a criminal conviction. Therefore, we reverse defendant's conviction.
In the early morning hours of May 13, 1979, a burglary occurred at 1147 Harvard Avenue East, Seattle, the home of Robert Cochran, Bishop of the Episcopal Diocese of Olympia. Bishop Cochran and his wife testified they awoke to the sound of banging or hammering noises within their home. Shortly after being awakened by the noises, the Cochrans realized their residential security system indicated an unauthorized entry into their home had occurred. The Cochrans called the Seattle Police Department when they determined the intruder was still present in the house. Neither of the Cochrans saw the intruder nor did they hear any voices.
When the police arrived, they conducted a thorough search of the Cochran residence. The police discovered an open window on the main floor, as well as an open door to the basement of the house. The glass panel in the basement fdoor was broken. Blood smears were found near the basement door. Inside the house, the police found more blood smears in the main floor library, as well as fingerprints. The police found the intruder had moved an oak prayer desk from the basement to the back patio of the house.
Soon after the police department's initial response to the Cochrans' request for help, Officer Beard and police dog Tally from the canine unit arrived on the scene. Officer Beard gave Tally the "search command," and the dog wandered through the entire residence and apparently picked up a scent in the basement. Tally exited through the exterior basement door, circled the prayer desk on the patio, then left the Cochran property, with Officer Beard in pursuit.
Tally led Officer Beard to a residence just south of the Cochran house. Tally found defendant lying at the bottom of a stairwell and bit him on the leg. The police arrested Loucks and charged him with burglary of the Cochran residence.
Defendant was not a stranger to the Seattle police officers on duty in the Capitol Hill area that evening. Approximately 1 hr before they responded to the Cochran burglary, Seattle police officers stopped and ticketed Loucks for jaywalking. At the burglary trial, the police testified they confronted Loucks at the corner of Broadway and Roy Streets after he crossed Broadway against the traffic light. Officer Brandner testified Loucks appeared to have been drinking but did not appear intoxicated. Both Officers Ayco and Brandner testified defendant Loucks showed them a piece of paper with an address on it and claimed to be looking for the address. While neither officer remembered the address, both testified it was not in the Capitol Hill area.
Laboratory analysis of the blood smears and fingerprints found at the Cochran residence showed neither belonged to the defendant. Nevertheless, Loucks was charged and convicted of second degree burglary. The prosecution theory of the case was that Loucks and an unknown accomplice committed the burglary. The prosecution's case consisted of the Cochrans' testimony describing their home and the noises they heard, the testimony of the arresting officer, and the testimony of Tally's handler. The only evidence placing Loucks within the Cochran home was that provided by Tally's handler.
Although there is a division of authority, we believe dog tracking evidence should be admissible where a proper foundation is made showing the qualifications of dog and handler. 
(1) the handler was qualified by training and experience to use the dog, (2) the dog was adequately trained in tracking humans, (3) the dog has, in actual cases, been found by experience to be reliable in pursuing human track, (4) the dog was placed on track where circumstances indicated the guilty party to have been, and (5) the trail had not become so stale or contaminated as to be beyond the dog's competency to follow. 
The question whether dog tracking evidence standing alone is sufficient to support a conviction is a novel one for the Washington courts. Although in Socolof the Court of Appeals intimated properly introduced tracking evidence might be sufficient evidence on which to base a conviction, in that case the victim also identified the defendant as her assailant. Other courts, however, generally hold tracking evidence is not of itself sufficient to support a conviction.
A large majority of jurisdictions allowing introduction of dog tracking evidence do so only after other evidence has been introduced clearly connecting the accused with commission of the crime for which he is being prosecuted. Courts which allow dog tracking evidence regard its probative value with some suspicion. Most courts allowing dog tracking evidence restrict its use to corroborative purposes only. In People v. McPherson, the Michigan Court of Appeals stated that dog tracking evidence is cumulative only, and must be supported by corroborating evidence to sustain a conviction. 
The dangers inherent in the use of dog tracking evidence can only be alleviated by the presence of corroborating evidence identifying the accused as the perpetrator of the crime. Police dogs cannot be conclusively relied on to follow the trail of one individual if other human trails cross this one, or even come near it. While a dog's trainer may be available for cross-examination, he obviously will be unable to answer many questions bearing on the reliability of the dog's conclusions. 
In the present case, evidence presented by the State failed to corroborate tracking evidence provided by Officer Beard and police dog Tally. The State's fingerprint and blood type evidence tend to exculpate defendant Loucks rather than corroborate Tally's identification of him as the intruder in the Cochran home. As previously stated, laboratory tests showed defendant's blood type did not match the blood found at the scene of the burglary. Likewise, defendant's fingerprints did not match fingerprints discovered at the Cochran residence.
The State's theory that an accomplice was involved rests on its contention the Cochrans' prayer desk was too large for one person to move and evidence of two break-in points at the Cochran residence. In its opening statement, the prosecution referred to the prayer desk as "a large oak prayer desk, which is very heavy." In contrast, Officer Ayco, who investigated the Cochran burglary, described the furniture as "a pulpit, a little brown kneeling desk." The only evidence presented regarding the size of the desk was the statement by Bishop Cochran that "[i]ts dimensions are about 33 inches high, 30 inches wide and about 2 feet deep. It has a kneeling pad. It's a pretty solid piece of furniture." The State presented no evidence at all regarding the weight of the prayer desk.
The evidence presented regarding the two break-in points is equally inconclusive. Bishop Cochran testified the interior doors to the basement were locked, so an intruder entering the basement could not then enter the main floor of the house without reentering from outside. The State presented no evidence the intrusions were made by different individuals or that more than one person passed through either point of entry.
Finally, the State asserts Loucks' presence in the Capitol Hill area after telling police officers he was looking for an address in another part of the city somehow corroborates Tally's identification of Loucks. We reject the State's argument. Defendant's unexplained presence in the Capitol Hill vicinity is susceptible to too many constructions to constitute evidence of his complicity in the Cochran burglary. 
Tally's identification of defendant Loucks as the perpetrator of the Cochran burglary is unsupported by other evidence linking Loucks to the burglary.

Chapter 10: The Exclusionary Rule and Entrapment

You Decide 10.1
Maryland v. Garrison, 480 U.S. 79 (1983).
Baltimore police officers obtained and executed a warrant to search the person of Lawrence McWebb and "the premises known as 2036 Park Avenue third floor apartment." When the police applied for the warrant and when they conducted the search pursuant to the warrant, they reasonably believed that there was only one apartment on the premises described in the warrant. In fact, the third floor was divided into two apartments, one occupied by McWebb and one by respondent Garrison. Before the officers executing the warrant became aware that they were in a separate apartment occupied by respondent, they had discovered the contraband that provided the basis for respondent's conviction for violating Maryland's Controlled Substances Act. The question presented is whether the seizure of that contraband was prohibited by the Fourth Amendment. The trial court denied respondent's motion to suppress the evidence seized from his apartment, and the Maryland Court of Special Appeals affirmed. The Court of Appeals of Maryland reversed and remanded with instructions to remand the case for a new trial.
There is no question that the warrant was valid and was supported by probable cause. The trial court found, and the two appellate courts did not dispute, that, after making a reasonable investigation, including a verification of information obtained from a reliable informant, an exterior examination of the three-story building at 2036 Park Avenue, and an inquiry of the utility company, the officer who obtained the warrant reasonably concluded that there was only one apartment on the third floor, and that it was occupied by McWebb. When six Baltimore police officers executed the warrant, they fortuitously encountered McWebb in front of the building and used his key to gain admittance to the first-floor hallway and to the locked door at the top of the stairs to the third floor. As they entered the vestibule on the third floor, they encountered respondent, who was standing in the hallway area. The police could see into the interior of both McWebb's apartment to the left and respondent's to the right, for the doors to both were open. Only after respondent's apartment had been entered and heroin, cash, and drug paraphernalia had been found did any of the officers realize that the third floor contained two apartments. As soon as they became aware of that fact, the search was discontinued. All of the officers reasonably believed that they were searching McWebb's apartment. No further search of respondent's apartment was made.
The matter on which there is a difference of opinion concerns the proper interpretation of the warrant. A literal reading of its plain language, as well as the language used in the application for the warrant, indicates that it was intended to authorize a search of the entire third floor. This is the construction adopted by the intermediate appellate court, and it also appears to be the construction adopted by the trial judge. One sentence in the trial judge's oral opinion, however, lends support to the construction adopted by the Court of Appeals, namely, that the warrant authorized a search of McWebb's apartment only. Appeals concluded that the warrant did not authorize the search of respondent's apartment and the police had no justification for making a warrantless entry into his premises. In our view, the case presents two separate constitutional issues, one concerning the validity of the warrant and the other concerning the reasonableness of the manner in which it was executed. The Warrant Clause of the Fourth Amendment categorically prohibits the issuance of any warrant except one "particularly describing the place to be searched and the persons or things to be seized." The manifest purpose of this particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit. Thus, the scope of a lawful search is "defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase." In this case, there is no claim that the "persons or things to be seized" were inadequately described or that there was no probable cause to believe that those things might be found in "the place to be searched" as it was described in the warrant. With the benefit of hindsight, however, we now know that the description of that place was broader than appropriate because it was based on the mistaken belief that there was only one apartment on the third floor of the building at 2036 Park Avenue. The question is whether that factual mistake invalidated a warrant that undoubtedly would have been valid if it had reflected a completely accurate understanding of the building's floor plan. Plainly, if the officers had known, or even if they should have known, that there were two separate dwelling units on the third floor of 2036 Park Avenue, they would have been obligated to exclude respondent's apartment from the scope of the requested warrant. But we must judge the constitutionality of their conduct in light of the information available to them at the time they acted. Those items of evidence that emerge after the warrant is issued have no bearing on whether or not a warrant was validly issued. [Just as the discovery of contraband cannot validate a warrant invalid when issued, so is it equally clear that the discovery of facts demonstrating that a valid warrant was unnecessarily broad does not retroactively invalidate the warrant. The validity of the warrant must be assessed on the basis of the information that the officers disclosed, or had a duty to discover and to disclose, to the issuing Magistrate. On the basis of that information, we agree with the conclusion of all three Maryland courts that the warrant, insofar as it authorized a search that turned out to be ambiguous in scope, was valid when it issued. The question whether the execution of the warrant violated respondent's constitutional right to be secure in his home is somewhat less clear. We have no difficulty concluding that the officers' entry into the third-floor common area was legal; they carried a warrant for those premises, and they were accompanied by McWebb, who provided the key that they used to open the door giving access to the third-floor common area. If the officers had known, or should have known, that the third floor contained two apartments before they entered the living quarters on the third floor, and thus had been aware of the error in the warrant, they would have been obligated to limit their search to McWebb's apartment. Moreover, as the officers recognized, they were required to discontinue the search of respondent's apartment as soon as they discovered that there were two separate units on the third floor and therefore were put on notice of the risk that they might be in a unit erroneously included within the terms of the warrant. The officers' conduct and the limits of the search were based on the information available as the search proceeded. While the purposes justifying a police search strictly limit the permissible extent of the search, the Court has also recognized the need to allow some latitude for honest mistakes that are made by officers in the dangerous and difficult process of making arrests and executing search warrants. The validity of the search of respondent's apartment pursuant to a warrant authorizing the search of the entire third floor depends on whether the officers' failure to realize the overbreadth of the warrant was objectively understandable and reasonable. Here it unquestionably was. The objective facts available to the officers at the time suggested no distinction between McWebb's apartment and the third-floor premises. For that reason, the officers properly responded to the command contained in a valid warrant even if the warrant is interpreted as authorizing a search limited to McWebb's apartment, rather than the entire third floor. Prior to the officers' discovery of the factual mistake, they perceived McWebb's apartment and the third-floor premises as one and the same; therefore their execution of the warrant reasonably included the entire third floor. Under either interpretation of the warrant, the officers' conduct was consistent with a reasonable effort to ascertain and identify the place intended to be searched within the meaning of the Fourth Amendment. 

 You Decide 10.2
Rodriquez v. State, No. SC14-160 (2015).

Several bail bondsmen were attempting to locate one of their clients. The client, who had been charged with marijuana cultivation in a different house, had listed the address of Mr. Rodriguez's home on his application for the bond. When the bondsmen knocked on the front door of that home, Mr. Rodriguez answered. He told the bondsmen that he did not know their client and that he was alone in the home. The bondsmen requested permission to search the home to be certain their client was not hiding there, and Mr. Rodriguez consented. The bondsmen noticed a smell of marijuana in the home.
Encountering a locked bedroom door, the bondsmen asked Mr. Rodriguez to open it so they could confirm that their client was not hiding there. Mr. Rodriguez unlocked the door and told the bondsmen that he was growing marijuana in the room. At that point, one of the bondsmen in the group moved outside and called the police to report what the bondsmen had observed.
About 30 minutes later, a uniformed officer arrived at the home. The officer testified that Mr. Rodriguez invited him to enter. The officer saw the grow room, called the narcotics squad, and placed Mr. Rodriguez in handcuffs in the back of the officer's squad car while they waited for the narcotics detectives to arrive. The bondsmen remained at that location throughout, and spoke to the lead detective when the narcotics unit arrived.
The lead detective testified that Mr. Rodriguez signed a form consenting to a search of the home. Mr. Rodriguez testified that he only signed the consent forms because the narcotics detectives had guns and most were also wearing masks. After their search confirmed the presence of a “grow room” containing 6-ft marijuana plants, lights, and 36 pounds of marijuana, the detectives arrested Mr. Rodriguez.
The defense filed a motion to suppress. At the hearing on that motion, the circuit court heard testimony from the lead bondsman, the police officer who first responded to the call from the bondsmen, the lead narcotics unit detective, and Mr. Rodriguez. The state did not establish that the police officer or any detective had made any efforts to obtain a search warrant before law enforcement entered the home or Mr. Rodriguez was arrested. The lead detective did, however, testify that he would have sought a warrant if Mr. Rodriguez had not consented to the search.
The court denied the motion to suppress, although the court found that Mr. Rodriguez's consent to entry by the police and detectives, and his signature on the consent form, were coerced. The court concluded that the inevitable discovery doctrine applied because probable cause had been established before law enforcement requested consent, and:
Soon as the bail bondsman calls and says, Listen I'm looking at a hydroponics lab to me that's a trigger. If they had not gotten consent, they would have gone and gotten a warrant.
Following the denial of the motion to suppress, Mr. Rodriguez entered a guilty plea and reserved the right to appeal the suppression issue. He was adjudicated guilty and sentenced, and [then appealed to the Third District Court of Appeal].
Based on these facts, the Third District found that the trial court properly applied the inevitable discovery doctrine. On appeal, Rodriguez argues that because law enforcement was not conducting a separate ongoing investigation, and the officers were not in the process of obtaining a warrant when the illegal conduct occurred, the lower courts improperly relied on the inevitable discovery doctrine. We agree. From the totality of the evidence, we find that the application of the inevitable discovery doctrine was improper and hold that the trial court should have suppressed the evidence obtained from the illegal search.
The Fourth Amendment prohibits unreasonable searches and seizures. Searches or seizures executed without prior approval by a judge or magistrate are “per se unreasonable.” “[T]he warrant requirement is an important working part of our machinery of government, not merely an inconvenience to be somehow weighed against the claims of police efficiency.” Further, the exclusionary rule makes evidence obtained either during or as a direct result of an unlawful invasion inadmissible. The purpose of the exclusionary rule is to sufficiently deter deliberate police misconduct. We recognize three exceptions to the exclusionary rule: “(1) an independent source existed for the discovery of the evidence; or (2) the evidence would have inevitably been discovered in the course of a legitimate investigation; or (3) sufficient attenuation existed between the challenged evidence and the illegal conduct.” 
Of particular concern here is the inevitable discovery doctrine, which applies to balance the need to deter police misconduct with the societal cost of allowing obviously guilty persons to go free. The inevitable discovery doctrine was first adopted by the United States Supreme Court in Nix and has long been recognized by this Court. Under this exception, “evidence obtained as the result of unconstitutional police procedure may still be admissible provided the evidence would ultimately have been discovered by legal means.” In adopting the inevitable discovery doctrine, the Supreme Court explained, “Exclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial.” In making a case for inevitable discovery, the State must demonstrate “that at the time of the constitutional violation an investigation was already under way.” In other words, the case must be in such a posture that the facts already in the possession of the police would have led to this evidence notwithstanding the police misconduct.
Inevitability under this rule “involves no speculative elements” and essentially requires the State to show “‘that at the time of the constitutional violation an investigation was already under way.’” Thus, the rule first requires a “reasonable probability” that the evidence would have been discovered despite the improper police procedure. Second, the State cannot argue that some later or future investigation would have inevitably led to the discovery of the evidence; rather, the investigation must be ongoing and the State must show that the facts known by the police at the moment of the unconstitutional procedure would have led to the evidence notwithstanding the police misconduct. 
In Fitzpatrick and Maulden, we applied the inevitable discovery doctrine to scenarios in which an investigation was already under way. If there was no ongoing investigation and the prospect of eventual discovery was merely speculative, we have refused to apply the rule. 
Basing its decision on a review of the totality of the evidence that indicated that probable cause to obtain a warrant existed, the First District Court of Appeal has ruled that, where the officers had begun to seek a warrant, showing probable cause for a warrant existed is sufficient to demonstrate inevitable discovery. McDonnell, officers were investigating the theft of an ATM and went to McDonnell's home to speak to him. McDonnell initially refused to consent to a search of his home, at which time an officer left to obtain a warrant. While waiting for the officer to return, another officer requested and received consent to search. The search led to incriminating evidence. As in this case, the lower court determined that McDonnell's consent to search was not valid. Nevertheless, the First District affirmed the trial court's denial of McDonnell's motion to suppress, noting that
federal law suggests that the inevitable discovery doctrine will not be applied in every case where the police had probable cause for a search warrant, but failed to get one. The cases focus on whether police made an effort to get a warrant prior to the illegal search and whether strong probable cause existed for the search warrant.
Judge Hawkes dissented, and noted that the State should not benefit from illegal activity and “any other rule would effectively eviscerate the exclusionary rule.” Judge Hawkes emphasized that the burden is on the prosecution to demonstrate that the evidence actually would have inevitably been discovered, not that it merely could have been. Accordingly, Judge Hawkes would have ruled that probable cause is not sufficient when there has been no attempt to obtain a warrant before contact with the defendant. 
The Fourth District Court of Appeal agreed with the reasoning of Judge Hawkes' dissent and found that where there had been no effort to obtain a warrant before the misconduct occurred, inevitable discovery could not be found. There, officers were dispatched to an apartment complex in response to shots fired. After the officer established a perimeter, they placed the defendant in custody and decided to search his apartment for the safety of everyone on the scene. Citing McDonnell, the Fourth District determined that “the prosecution made absolutely no showing that efforts to obtain a warrant were being actively pursued prior to the occurrence of the illegal conduct.” Further, the Fourth District found that the “[o]peration of the ‘inevitable discovery’ rule under the circumstances of this case would effectively nullify the requirement of a search warrant under the Fourth Amendment.” 
Likewise, the First District has reaffirmed that “the inevitable discovery doctrine may be employed to deem a search lawful if probable cause to obtain a warrant existed and officers are ‘in the process of obtaining a warrant’ when the search occurs.” In King, the First District found that the trial court erred in relying on the inevitable discovery doctrine where “the officer testified that he did not attempt to get a warrant, and the State presented no evidence suggesting he did.”
Several federal courts require active and independent pursuit to meet the warrant requirement. Our jurisprudence has been clear thus far that the inevitable discovery doctrine does not apply when the prosecution cannot demonstrate an active and independent investigation. Compare furthermore, neither Moody nor Fitzpatrick involves warrantless searches of the home, as seen here. As recently affirmed by the United States Supreme Court, “when it comes to the Fourth Amendment, the home is first among equals. At the Amendment's “very core” stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” “As such, we must hold firm the protections of the Fourth Amendment and find the actions here unreasonable.
Here, bondsmen contacted the Hialeah Police Department to report having seen the grow room in Rodriguez's house during their unrelated search for a fugitive. Officer Garfinkel was dispatched and arrived on scene. Officer Garfinkel testified that upon arrival, he observed the bondsmen on Rodriguez's porch and followed Rodriguez into his home. After following Rodriguez into his home, Officer Garfinkel personally observed the grow room operation, placed Rodriguez in handcuffs, and placed Rodriguez in the back of his squad car while contacting the narcotics unit. The narcotics officers arrived while Rodriguez remained handcuffed in the back of Garfinkel's car. At no point prior to this did any law enforcement officer attempt to obtain a warrant. Upon the narcotics unit's arrival, the officers approached the handcuffed Rodriguez to request consent to search his home. He was released from the handcuffs to sign the consent form. The trial court properly found this consent to be coerced. Rodriguez. At no point after the bondsmen arrived on the scene was Rodriguez left alone. There were no exigent circumstances; nor was there any risk that evidence would be removed or destroyed. Prior to the warrantless search, the narcotics officers had eyewitness accounts from the bondsmen and a sworn law enforcement officer that they had observed grow lights and marijuana plants. The bondsmen and Officer Garfinkel also testified that they had been able to smell the marijuana from outside the home. Therefore, it is highly likely that had any of the narcotics officers sought a warrant, it would have been granted. However, it was not a certainty and it cannot be said that the prosecution would have been able to demonstrate that a separate investigation had been initiated prior to the misconduct, nor that any steps were taken in pursuit of a warrant.
The question before this Court is whether the inevitable discovery rule requires the prosecution to demonstrate that the police were in the process of obtaining a warrant prior to the misconduct or whether the prosecution need only establish that a warrant could have been obtained with the information available prior to the misconduct. We conclude that permitting warrantless searches without the prosecution demonstrating that the police were in pursuit of a warrant is not a proper application of the inevitable discovery rule. The rule cannot function to apply simply when police could have obtained a search warrant if they had taken the opportunity to pursue one, but can only apply if they actually were in pursuit of one. Within the inevitable discovery exception to the exclusionary rule there is no room for probable cause to obviate the requirement to pursue a search warrant, for this would eliminate the role of the magistrate and replace judicial reasoning with the current sense impression of police officers.
Further, this case involves the sanctity of the home--a bedrock of the Fourth Amendment and an area where a person should enjoy the highest reasonable expectation of privacy. The constitutional guarantee to freedom from warrantless searches is not an inconvenience to be dismissed in favor of claims for police and prosecutorial efficiency. While it is true that here the police were already in possession of the information leading to the evidence before the misconduct, they failed to pursue a legal means to attain this evidence. The police attempted to gain consent from Rodriguez to enter his home, but his consent was found to be coerced and invalid. With no valid consent, and no pursuit of a search warrant, there are no legal means present that would have led to the evidence. In this way, the discovery was not inevitable notwithstanding the police misconduct, and the rule cannot be applied.
Because the exclusionary rule works to deter police misconduct by ensuring that the prosecution is not in a better position as a result of the misconduct, the rule cannot be expanded to allow application where there is only probable cause and no pursuit of a warrant. If the prosecution were allowed to benefit in this way, police misconduct would be encouraged instead of deterred, and the rationale behind the exclusionary rule would be eviscerated. Where the prosecution has made no showing that a search warrant was being actively pursued prior to the occurrence of the illegal conduct, application of the inevitable discovery rule would effectively nullify the requirement of a search warrant under the Fourth Amendment. In sum, prosecutors may not be permitted to benefit from the violation of constitutional rights. We cannot apply the inevitable discovery rule in every case where the police had probable cause to obtain a warrant but simply failed to get one. Accordingly, the officers' failure to seek a search warrant precludes the application of the inevitable discovery doctrine in this case.
For the foregoing reasons, we quash the decision of the Third District Court of Appeal in Rodriguez v. State, and remand for proceedings consistent with this opinion.
Canady, J. dissenting
Because I conclude that the failure of the police to initiate the process for securing a search warrant did not preclude application of the inevitable discovery doctrine, I would approve the decision on review. I would disapprove the decision in Rowell v. State, 83 So.3d 990 (Fla. 4th DCA 2012), to the extent that it adopted a categorical rule, also adopted by the majority here, that pursuit of a search warrant is prerequisite to application of the inevitable discovery doctrine when the existence of probable cause justifying issuance of a search warrant is the basis asserted for the application of the doctrine. This categorical limitation on the inevitable discovery doctrine is inconsistent with the deterrent purpose of the exclusionary rule.
In Nix v. Williams, 467 U.S. 431, 447 (1984), in adopting the inevitable discovery exception to the exclusionary rule, the Supreme Court concluded that suppression of evidence is unwarranted “if the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police.” Justifying that conclusion, the Court observed that “there is no rational basis to keep [such] evidence from the jury in order to ensure the fairness of the trial proceedings.” The Court further observed that suppression of such evidence “would do nothing whatever to promote the integrity of the trial process, but would inflict a wholly unacceptable burden on the administration of criminal justice.” Id. But the major focus of the Court's justification of the inevitable discovery rule was based on its analysis of the deterrent purpose of the exclusionary rule.
The underlying principle is this: “the interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. The deterrent purpose of the exclusionary rule generally is served if the police will gain no advantage by virtue of unconstitutional conduct and thus have no incentive to engage in that conduct. The Court reasoned that the inevitable discovery rule is consistent with the deterrent purpose of the exclusionary rule because “when an officer is aware that the evidence will inevitably be discovered, he will try to avoid engaging in any questionable practice” since “there will be little to gain from taking any dubious ‘shortcuts’ to obtain the evidence.” The Court also noted that “[s]ignificant disincentives to obtaining evidence illegally--including the possibility of departmental discipline and civil liability--also lessen the likelihood that the ultimate or inevitable discovery exception will promote police misconduct. Given all these circumstances, the Court rejected the argument that the inevitable discovery rule should include a requirement that the government prove an absence of bad faith.
In applying the inevitable discovery rule, we have held that evidence discovered by the police based on a constitutional violation is not subject to suppression if the evidence “would have been found independently . . . by means of normal investigative measures that inevitably would have been set in motion as a matter of routine police procedure.” The facts presented by the case on review fall squarely under that principle of law. Based on the record before us, it is undeniable that--as the trial court found--if the police had not acted on the constitutionally infirm consent to search, they would have proceeded to obtain a search warrant based on the information provided to them by the bondsmen. Only a flight of fancy could lead to a contrary conclusion.
In this case, we need not decide whether the inevitable discovery rule can be applied to the warrantless search of a dwelling conducted without any colorable legal basis. And to conclude that suppression is unjustified in this case, we need not adopt a rule that suppression will never be available for evidence obtained in the warrantless search of a dwelling if the police had probable cause justifying the issuance of a search warrant that would have led to the discovery of that evidence. It might be argued that such a broad rule would inevitably produce a perverse incentive to deliberately erode the requirement for obtaining a warrant. In any event, resolution of this case requires only that we recognize that suppression of the evidence here--where the police acted on the basis of consent to search that was determined to be invalid--would be inconsistent with the purpose of the exclusionary rule.
As the Supreme Court explained in Herring v. United States, 555 U.S. 135, 144 (2009):
To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.
The “bottom-line effect” of the exclusionary rule in many cases is to suppress the truth and set the criminal loose in the community without punishment. [The case law holds] that society must swallow this bitter pill when necessary, but only as a “last resort.” For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.
This understanding of the exclusionary rule strongly cuts against the cramped reading of the inevitable discovery exception adopted by the majority.
The record here supports the conclusion that the conduct of the police was neither deliberate, reckless nor grossly negligent. The police acted on the basis of a consent to search, which was determined to be invalid based on the circumstances in which the consent was requested by the police--circumstances involving the presence of several armed police officers, including an officer wearing a mask. There is no suggestion in the record of any threats or physical coercion. Nor is there any suggestion that the police understood the consent they obtained to be invalid. The mistake made by the police in this case does not justify the cost that is imposed by the suppression of the evidence--evidence which would readily have been available to the police through routine measures leading to the issuance of a search warrant.
“The purpose of the inevitable discovery rule is to block setting aside convictions that would have been obtained without police misconduct.” That purpose is thwarted by the decision in this case. The conduct of the police here was neither “sufficiently deliberate” nor “sufficiently culpable” to justify the “bitter pill” of “setting the criminal loose in the community without punishment.” I dissent.

Chapter 11: Civil and Criminal Remedies for Constitutional Violation
You Decide 11.1
Briscoe v. LaHue, 460 U.S. 325 (1983).
This case presents a question of statutory construction: whether 42 U.S.C. 1983 (1976) authorizes a convicted person to assert a claim for damages against a police officer for giving perjured testimony at his criminal trial. LaHue testified that in his opinion, Briscoe was one of no more than 50–100 people in Bloomington whose prints would match a partial thumbprint on a piece of glass found at the scene of the crime. According to Briscoe, the testimony was false because the Federal Bureau of Investigation and the state police considered the partial print too incomplete to be of value, and without the print, there was no evidence identifying him as the burglar. He sought $100,000 in damages. Petitioners Vickers and Ballard were jointly tried and convicted of sexual assault in state court. They subsequently brought a civil action under 1983 against respondent Hunley, a member of the Cedar Lake, IN, police force, alleging that he had deprived them of their constitutional rights to due process and a fair trial. They alleged that, by giving false testimony suggesting that they had been able to harmonize their stories before making exculpatory statements to police, he had prejudicially diminished the credibility of those statements. Each plaintiff sought $150,000 in compensatory and $50,000 in punitive damages. Although other issues were argued in the Court of Appeals, its holding in both cases was predicated squarely on the ground that in litigation brought under 42 U.S.C. 1983, all witnesses--police officers as well as lay witnesses--are absolutely immune from civil liability based on their testimony in judicial proceedings.
The central focus of our analysis has been the nature of the judicial proceeding itself. Thus, in his opinion, concurring in the judgment in Imbler v. Pachtman, JUSTICE WHITE explained that the absolute immunity of public prosecutors was "based on the policy of protecting the judicial process." In short, the common law provided absolute immunity from subsequent damages liability for all persons--governmental or otherwise--who were integral parts of the judicial process. It is equally clear that 1983 does not authorize a damages claim against private witnesses on the one hand or against judges or prosecutors in the performance of their respective duties on the other. When a police officer appears as a witness, he may reasonably be viewed as acting like any other witness sworn to tell the truth--in which event he can make a strong claim to witness immunity; alternatively, he may be regarded as an official performing a critical role in the judicial process, in which event he may seek the benefit afforded to other governmental participants in the same proceeding. Nothing in the language of the statute suggests that such a witness belongs in a narrow, special category lacking protection against damages suits. 
Petitioners, finally, urge that we should carve out an exception to the general rule of immunity in cases of alleged perjury by police officer witnesses. They assert that the reasons supporting common-law immunity--the need to avoid intimidation and self-censorship--apply with diminished force to police officers. Policemen often have a duty to testify about the products of their investigations, and they have a professional interest in obtaining convictions which would assertedly counterbalance any tendency to shade testimony in favor of potentially vindictive defendants. In addition, they are subject to 1983 lawsuits for the performance of their other duties, as to which they have only qualified immunity, and their defense is generally undertaken by their governmental employers. Further, petitioners urge that perjured testimony by police officers is likely to be more damaging to constitutional rights than such testimony by ordinary citizens, because the policeman in uniform carries special credibility in the eyes of jurors. And, in the case of police officers, who cooperate regularly with prosecutors in the enforcement of criminal law, prosecution for perjury is alleged to be so unlikely that it is not an effective substitute for civil damages. These contentions have some force. But our cases clearly indicate that immunity analysis rests on functional categories, not on the status of the defendant. A police officer on the witness stand performs the same functions as any other witness; he is subject to compulsory process, takes an oath, responds to questions on direct examination and cross-examination, and may be prosecuted subsequently for perjury. Moreover, to the extent that traditional reasons for witness immunity are less applicable to governmental witnesses, other considerations of public policy support absolute immunity more emphatically for such persons than for ordinary witnesses. Subjecting government officials, such as police officers, to damages liability under 1983 for their testimony might undermine not only their contribution to the judicial process but also the effective performance of their other public duties. Section 1983 lawsuits against police officer witnesses, like lawsuits against prosecutors, "could be expected with some frequency." Police officers testify in scores of cases every year, and defendants often will transform resentment at being convicted into allegations of perjury by the State's official witnesses. As the files in this case show, even the processing of a complaint that is dismissed before trial consumes a considerable amount of time and resources. This category of 1983 litigation might well impose significant burdens on the judicial system and on law enforcement resources. As this Court noted when it recognized absolute immunity for prosecutors in Imbler, if the defendant official "could be made to answer in court each time [a disgruntled defendant] charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law." To some degree, the individual's burden might be alleviated by the government's provision of counsel, but a case that goes to trial always imposes significant emotional and other costs on every party litigant. There is, of course, the possibility that, despite the truthfinding safeguards of the judicial process, some defendants might indeed be unjustly convicted on the basis of knowingly false testimony by police officers. The absolute immunity for prosecutors recognized in Imbler bars one possible avenue of redress for such defendants. Similarly, in this case, the absolute witness immunity bars another possible path to recovery for these defendants. But we have recognized, again and again, that in some situations, the alternative of limiting the official's immunity would disserve the broader public interest. 
You Decide 11.2
Rivera v. Rhode Isand 312 F. Supp. 175 (1st Cir. 2005).
In May 2000, 15-year-old Jennifer Rivera was shot dead in front of her house in Providence, Rhode Island, to stop her from testifying at a murder trial that she saw Charles Pona, the defendant in the trial, fleeing from the scene of the murder of Hector Feliciano in August 1999. Her death has been avenged in one sense: Charles Pona, who ordered her murder, was convicted of her murder in state court. Charles Pona was sentenced to life plus 20 years.
Iris Rivera, Jennifer's mother, seeks to avenge her daughter's death in another sense. She filed a federal lawsuit alleging the police had violated Jennifer's constitutional substantive due process right to life by failing, after promising to do so, to protect Jennifer from the danger posed by Pona if she agreed to testify against him. She sued the Providence Police Department (PPD); police officers Matos and Finegan and state Assistant Attorneys General White and Page, whom she said acted directly to compel Jennifer to testify; the Providence Police Chief Urbano Prignano for failing to train and properly supervise his officers; and the City for having a policy and practice of not protecting endangered witnesses who were given assurances of protection. In addition to her federal constitutional claims, the sole basis on which she is in federal court, Rivera brings claims under Rhode Island law. 
It would be inhumane not to feel a sense of outrage over Jennifer's death or a sense of deep sympathy for Iris Rivera who has lost her daughter. https://advance.lexis.com/document/?pdmfid=1000516&crid=f785fc64-f780-4a23-b22a-850fe9cb0349&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pddocid=urn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pdcontentcomponentid=6385&pdshepid=urn%3AcontentItem%3A7XWP-FBJ1-2NSD-P2F2-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=dy_fk&earg=sr0&prid=657f21b1-a9f0-4dd9-bd09-f7026be4eb9bBut our question is one of federal law, not one of sympathy. The Supreme Court has said that only in very rare situations will the state's failure to protect someone amount to a constitutional violation, even if the state's conduct is grossly negligent. The Court has cautioned that "the doctrine of judicial self-restraint requires [courts] to exercise the utmost care whenever [they] are asked to break new ground in this field." Based on the facts alleged in the complaint, we conclude that this is not one of those rare cases. 
The most difficult analysis involves those constitutional claims against the police officers and state attorneys who made the promises. In fact, it may be that the officers made no promises or contingent promises at best. It may be that they intended to keep or tried to keep the promises but were unable to guarantee Jennifer's safety. We do not know the defendants' version of the events. They chose to test the plaintiff's claims by motion to dismiss, so we must assume the truth of everything alleged by the plaintiff in the complaint. Still, we conclude that the plaintiff has not stated a claim of violation of Jennifer's federal constitutional rights. For that reason, the claims against all defendants were properly dismissed. Whether the plaintiff has some recompense under the laws of Rhode Island is another matter for Rhode Island to decide. Whatever recompense there can be to Jennifer and Iris Rivera, it is not to be found in this case.
We explain our reasons, starting with the allegations in the complaint.
We look only to the allegations in the complaint and take them as true, as required in a Rue 12(b)(6) motion to dismiss a claim. On August 28, 1999, Hector Feliciano was shot to death in a vacant lot next to Jennifer Rivera's home. Fifteen-year-old Jennifer Rivera, who lived at 95 Congress Street in Providence, Rhode Island, heard gun shots, went to her kitchen window, and saw a dark skinned man scale the fence of the lot and drive away in a sport utility vehicle. At the request of a Providence police officer, Jennifer went to the police station that same day and signed a witness statement. On August 31, at the request of Feliciano's family, she went to the police station a second time. She signed another statement and identified Charles Pona from police photographs as the man she saw fleeing the crime scene. On October 28, 1999, Charles Pona was arrested for the murder of Feliciano. On November 1, 1999, he began serving a 6-month sentence on unrelated charges.
Starting in November 1999, Rivera was continually threatened with death if she agreed to testify as to the murder she witnessed. At this time, Jennifer and her mother informed Jennifer's counselor of the death threats that she had been receiving. The PPD and Providence police detectives were immediately notified of the threats against Jennifer's life if she were to testify about having witnessed the murder.
"Soon thereafter, the PPD repeatedly assured her she would be safe." The PPD also informed defendants White and Page, prosecutors in the Attorney General's office, of the threats against Jennifer.
 Based on these promises of protection, Jennifer agreed to and did testify at the grand jury   hearing on November 15, 1999.
Another 15-year-old boy testified at this grand jury hearing as well, apparently also identifying Pona. That evening a passenger in an automobile pointed a gun at this boy's sister and asked where her brother was. Upon learning of these threats, the PPD placed the boy in a witness protection program that same day.
The threats against Jennifer's life, if she agreed to testify against Pona, continued. Specifically, Police Detectives Matos and Finegan were repeatedly informed of the death threats made against Jennifer. On November 23, 1999, Detective Finegan confirmed that he had received the information regarding the threat and indicated that he would speak with Jennifer. In January 2000, a detective of the PPD contacted Jennifer's counselor to confirm that he was aware of the threats against Jennifer's life as a result of her willingness to testify about having witnessed the murder.
On March 1, 2000, Charles Pona was indicted on charges of murdering Hector Feliciano, and on April 22, 2000, he was released on bail after completing his 6-month sentence on unrelated charges. All defendants were aware of the release of Charles Pona.
On May 15, 2000, a subpoena was issued by defendants White and Page to Jennifer to appear in court at 9:30 on May 22 to testify in the murder trial of Charles Pona. White and Page were aware of the threats being made against Jennifer's life if she agreed to testify. On May 16, the PPD notified Jennifer that she was required to testify on May 22, 2000. As late as May 17, 2000, Jennifer told the defendants White and Page and a PPD detective that she was afraid to go to court because she would be killed. Again, the defendants promised to protect her in order to secure her testimony.
As a result of the promises for protection, Jennifer continued in her willingness to testify to what she had seen on the day of the murder and to identify Charles Pona at trial as the killer of Feliciano.
On May 21, 2000, Jennifer Rivera was standing in front of her house when a young man with a hooded shirt stepped out of a car, grabbed her, and shot her in the head. Dennard Walker, Pona's half brother, shot Jennifer and was convicted for her murder. On November 12, 2003, Charles Pona was convicted of Jennifer's murder and conspiracy to commit murder because he had ordered Jennifer killed. 
The complaint alleges that despite the repeated threats to Jennifer's life, her repeated requests for protection, and the defendants' repeated assurances that they would protect her, the defendants took no action to protect Jennifer including, among other things, failing to place her in the state's witness protection program. Rivera alleged that the defendants undertook a duty to protect Jennifer by identifying her as a witness to the murder and taking her statement, promising to protect her if she testified, and subpoenaing her to testify before the grand jury and at the trial of Charles Pona, "knowing that she was reluctant to testify without such protection because of the repeated death threats she had received."
The complaint also alleges that the City of Providence and the PPD maintain legally inadequate training and supervision of employees, including the individual defendants, for protecting witnesses.
Rivera alleged in the complaint that by failing to protect Jennifer the defendants acted with "deliberate indifference to [Jennifer's] constitutional rights" and that the defendants' conduct "shocks the conscience."
With respect to defendants Matos, Finegan, White, and Page, the district court dismissed the case against them for failure to state a claim under the Federal Rules of Civil Procedure 12(b)(6). This court reviews de novo the district court's dismissal of Rivera's https://advance.lexis.com/document/?pdmfid=1000516&crid=f785fc64-f780-4a23-b22a-850fe9cb0349&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pddocid=urn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pdcontentcomponentid=6385&pdshepid=urn%3AcontentItem%3A7XWP-FBJ1-2NSD-P2F2-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=dy_fk&earg=sr0&prid=657f21b1-a9f0-4dd9-bd09-f7026be4eb9bIn considering a motion to dismiss for failure to state a claim, a court must take the allegations in the plaintiff's pleadings as true and must make all reasonable inferences in favor of the plaintiff. A complaint may be dismissed for failure to state a claim "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations". https://advance.lexis.com/document/?pdmfid=1000516&crid=f785fc64-f780-4a23-b22a-850fe9cb0349&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pddocid=urn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pdcontentcomponentid=6385&pdshepid=urn%3AcontentItem%3A7XWP-FBJ1-2NSD-P2F2-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=dy_fk&earg=sr0&prid=657f21b1-a9f0-4dd9-bd09-f7026be4eb9b
In substantive due process cases, the Supreme Court has held that such claims must be/are fully scrutinized to determine if the alleged facts support the conclusion that the state has violated an individual's constitutional rights. This scrutiny of the complaint entails two separate inquiries. The first is whether the facts alleged state a claim for violation of constitutional rights. If such a claim is stated, there is a second inquiry as to whether the allegations meet the separate set of requirements as to particular categories of defendants to establish a claim within 42 U.S.C. § 1983, the statutory provision on which suit is brought. Because we find no cognizable claim of a violation of a constitutional right is stated, we uphold the dismissal of the case without reaching the second inquiry.
The due process guarantees of the Fourteenth Amendment forbid the State itself from depriving a person of life, liberty, or property, without due process of laws. https://advance.lexis.com/document/?pdmfid=1000516&crid=f785fc64-f780-4a23-b22a-850fe9cb0349&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pddocid=urn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pdcontentcomponentid=6385&pdshepid=urn%3AcontentItem%3A7XWP-FBJ1-2NSD-P2F2-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=dy_fk&earg=sr0&prid=657f21b1-a9f0-4dd9-bd09-f7026be4eb9bIn order to establish a substantive due process claim, the plaintiff must first show a deprivation of a protected interest in life, liberty, or property. It is not enough to claim the governmental action shocked the conscience. https://advance.lexis.com/document/?pdmfid=1000516&crid=f785fc64-f780-4a23-b22a-850fe9cb0349&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pddocid=urn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pdcontentcomponentid=6385&pdshepid=urn%3AcontentItem%3A7XWP-FBJ1-2NSD-P2F2-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=dy_fk&earg=sr0&prid=657f21b1-a9f0-4dd9-bd09-f7026be4eb9b (The implication of a fundamental right is a threshold requirement for establishing a due process violation). The complaint alleges that Jennifer was caused to be deprived of her life, a protected interest. https://advance.lexis.com/document/?pdmfid=1000516&crid=f785fc64-f780-4a23-b22a-850fe9cb0349&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pddocid=urn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pdcontentcomponentid=6385&pdshepid=urn%3AcontentItem%3A7XWP-FBJ1-2NSD-P2F2-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=dy_fk&earg=sr0&prid=657f21b1-a9f0-4dd9-bd09-f7026be4eb9bSecond, the plaintiff must show that the deprivation of this protected right was caused by governmental conduct. That is easily met when a government actor causes the injury, such as when police officers act under color of law. ("To be sure, violence is attributable to state action if the perpetrator is acting under color of state law.") It is much more difficult when the person who inflicts the injury is a private person. The Due Process Cause https://advance.lexis.com/document/?pdmfid=1000516&crid=f785fc64-f780-4a23-b22a-850fe9cb0349&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pddocid=urn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pdcontentcomponentid=6385&pdshepid=urn%3AcontentItem%3A7XWP-FBJ1-2NSD-P2F2-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=dy_fk&earg=sr0&prid=657f21b1-a9f0-4dd9-bd09-f7026be4eb9b acts as a check on the government, not on actions by private individuals. Here, of course, the person who killed Jennifer was a private individual. Nonetheless, there are possible scenarios of government involvement   with a private individual which amount to government conduct--for example, if the police had handed the murderer the gun with instruction to shoot her or assured Pona that he could attack Jennifer with impunity. That is certainly not the case. The claimed governmental involvement in causing Jennifer's death was much more indirect: The government is said to have enhanced the danger posed by a private individual and then failed to protect against this risk. https://advance.lexis.com/document/?pdmfid=1000516&crid=f785fc64-f780-4a23-b22a-850fe9cb0349&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pddocid=urn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pdcontentcomponentid=6385&pdshepid=urn%3AcontentItem%3A7XWP-FBJ1-2NSD-P2F2-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=dy_fk&earg=sr0&prid=657f21b1-a9f0-4dd9-bd09-f7026be4eb9bThe Supreme Court has stated that as a general matter, "a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Cause.” That is because the purpose of the Due Process Clause is to protect the people from the state, not to ensure that the state protects them from each other. "The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security," because "the Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes,".
https://advance.lexis.com/document/?pdmfid=1000516&crid=f785fc64-f780-4a23-b22a-850fe9cb0349&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pddocid=urn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pdcontentcomponentid=6385&pdshepid=urn%3AcontentItem%3A7XWP-FBJ1-2NSD-P2F2-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=dy_fk&earg=sr0&prid=657f21b1-a9f0-4dd9-bd09-f7026be4eb9bHowever, the Court recognized that this general principle is not absolute: in situations in which there is a "special relationship," an affirmative, constitutional duty to protect may arise when the state "so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs." "The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf." This court has recognized that this relationship, and thus a constitutional duty, may exist when the individual is incarcerated or is involuntarily committed to the custody of the state. https://advance.lexis.com/document/?pdmfid=1000516&crid=f785fc64-f780-4a23-b22a-850fe9cb0349&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pddocid=urn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pdcontentcomponentid=6385&pdshepid=urn%3AcontentItem%3A7XWP-FBJ1-2NSD-P2F2-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=dy_fk&earg=sr0&prid=657f21b1-a9f0-4dd9-bd09-f7026be4eb9bThe Supreme Court in DeShaney also suggested, but never expressly recognized, the possibility that when the state creates the danger to an individual, an affirmative duty to protect might arise:
https://advance.lexis.com/document/?pdmfid=1000516&crid=f785fc64-f780-4a23-b22a-850fe9cb0349&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pddocid=urn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pdcontentcomponentid=6385&pdshepid=urn%3AcontentItem%3A7XWP-FBJ1-2NSD-P2F2-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=dy_fk&earg=sr0&prid=657f21b1-a9f0-4dd9-bd09-f7026be4eb9bWhile the State may have been aware of the dangers that [the plaintiff] faced in the free world, it played no part in their creation nor did it do anything to render him any more vulnerable to them. [By returning the plaintiff's child to his abusive father, the State] placed him in no worse position than that in which he would have been had it not acted at all.
https://advance.lexis.com/document/?pdmfid=1000516&crid=f785fc64-f780-4a23-b22a-850fe9cb0349&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pddocid=urn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pdcontentcomponentid=6385&pdshepid=urn%3AcontentItem%3A7XWP-FBJ1-2NSD-P2F2-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=dy_fk&earg=sr0&prid=657f21b1-a9f0-4dd9-bd09-f7026be4eb9bFrom this statement comes Rivera's argument that the Due Process Clause is implicated when the state has played a role in creating the danger or has enhanced the danger to an individual. At least three circuit courts have recognized the existence of a constitutional violation when, on particular facts, the state fails to protect against private violence under this state created danger theory. https://advance.lexis.com/document/?pdmfid=1000516&crid=f785fc64-f780-4a23-b22a-850fe9cb0349&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pddocid=urn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pdcontentcomponentid=6385&pdshepid=urn%3AcontentItem%3A7XWP-FBJ1-2NSD-P2F2-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=dy_fk&earg=sr0&prid=657f21b1-a9f0-4dd9-bd09-f7026be4eb9b
https://advance.lexis.com/document/?pdmfid=1000516&crid=f785fc64-f780-4a23-b22a-850fe9cb0349&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pddocid=urn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pdcontentcomponentid=6385&pdshepid=urn%3AcontentItem%3A7XWP-FBJ1-2NSD-P2F2-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=dy_fk&earg=sr0&prid=657f21b1-a9f0-4dd9-bd09-f7026be4eb9b Even if there exists a special relationship between the state and the individual or the state plays a role in the creation or enhancement of the danger, under a supposed state created danger theory, there is a further and onerous requirement that the plaintiff must meet in order to prove a constitutional violation: The state actions must shock the conscience of the court. https://advance.lexis.com/document/?pdmfid=1000516&crid=f785fc64-f780-4a23-b22a-850fe9cb0349&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pddocid=urn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pdcontentcomponentid=6385&pdshepid=urn%3AcontentItem%3A7XWP-FBJ1-2NSD-P2F2-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=dy_fk&earg=sr0&prid=657f21b1-a9f0-4dd9-bd09-f7026be4eb9b . . . In determining whether the state has violated an individual's substantive due process rights, a federal court may elect first to address whether the governmental action at issue is sufficiently conscience shocking. The state action must be "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." "Conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level." https://advance.lexis.com/document/?pdmfid=1000516&crid=f785fc64-f780-4a23-b22a-850fe9cb0349&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pddocid=urn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pdcontentcomponentid=6385&pdshepid=urn%3AcontentItem%3A7XWP-FBJ1-2NSD-P2F2-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=dy_fk&earg=sr0&prid=657f21b1-a9f0-4dd9-bd09-f7026be4eb9bOf course, whether behavior is conscience shocking varies with regard to the circumstances of the case. In situations where actors have an opportunity to reflect and make reasoned and rational decisions, deliberately indifferent behavior may suffice to "shock the conscience."
The federal claims dismissed as to defendants Matos, Finegan, White, and Page are alleged in counts one and two. Specifically, Rivera alleges in the complaint that the defendants undertook a duty to protect Jennifer and that the defendants enjoyed a special relationship with Jennifer. The acts and omissions of the defendants and their failure to take appropriate steps to protect Jennifer from the risk that Pona posed to her, despite her requests for protection, violated her substantive due process rights. 
https://advance.lexis.com/document/?pdmfid=1000516&crid=f785fc64-f780-4a23-b22a-850fe9cb0349&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pddocid=urn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pdcontentcomponentid=6385&pdshepid=urn%3AcontentItem%3A7XWP-FBJ1-2NSD-P2F2-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=dy_fk&earg=sr0&prid=657f21b1-a9f0-4dd9-bd09-f7026be4eb9bAlthough not clear from the complaint, Rivera's objections to the motions to dismiss and supporting memorandum clarify that in addition to the duty which arises in the context of a special relationship between Jennifer and the state, the two counts are premised on an alleged separate duty to protect Jennifer based on the defendants' actions which enhanced the danger to her. Rivera has essentially conceded, by dropping her special relationship claim on appeal, that she cannot establish such a relationship. The factual circumstances, as alleged in the complaint, also do not amount to the type of state creation of risk contemplated by the doctrine. The actions of the defendants are "not the kind of 'affirmative acts' by the state that would give rise to a constitutional duty to protect." As to Officers Matos and Finegan, Rivera argued that the danger was created as a result of their actions of identifying and securing Jennifer as a witness, providing her with false assurances of protection upon which she relied, compelling her to act in this capacity as a witness, and by issuing a subpoena to her to confront Pona in open court.
As to defendants White and Page, Rivera argued that the danger was created as a result of their promising to protect Jennifer if she testified and subpoenaing her to testify before the grand jury and at the trial of Charles Pona, knowing that she was reluctant to testify without such protection because of the repeated death threats. 
Rivera argues the state's two actions in identifying Jennifer as a witness and taking her witness statement in the course of investigating a murder compelled Jennifer to testify and thus enhanced the danger to Jennifer. Both are necessary law enforcement tools and cannot be the basis to impose constitutional liability on the state.
Rivera also argues issuance of a subpoena enhanced the risk to Jennifer. Issuing a subpoena is also a vital prosecutorial tool. While requiring Jennifer's testimony may in fact have increased her risk, issuance of a subpoena did not do so in the sense of the state created danger doctrine. Every witness involved in a criminal investigation and issued a subpoena to testify in a criminal proceeding faces some risk, and the issuance of a subpoena cannot become the vehicle for a constitutional claim against a state. 
The only remaining "affirmative acts" alleged in the complaint are the defendants' assurances of protection. There is no doubt that, if accepted as true, the complaint shows that Jennifer may have been subjected to an increased risk, if she was promised protection, not given it, and relied on the promise. The state, in making these promises, may have induced Jennifer into a false sense of security, into thinking she had some degree of protection from the risk, when she had none from the state.
https://advance.lexis.com/document/?pdmfid=1000516&crid=f785fc64-f780-4a23-b22a-850fe9cb0349&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pddocid=urn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pdcontentcomponentid=6385&pdshepid=urn%3AcontentItem%3A7XWP-FBJ1-2NSD-P2F2-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=dy_fk&earg=sr0&prid=657f21b1-a9f0-4dd9-bd09-f7026be4eb9bWhile the unkept promises may have rendered her more vulnerable to the danger posed by Charles Pona and his associates, merely rendering a person more vulnerable to risk does not create a constitutional duty to protect. In part, this is because an increased risk is not itself a deprivation of life, liberty, or property; it must still cause such a deprivation.
https://advance.lexis.com/document/?pdmfid=1000516&crid=f785fc64-f780-4a23-b22a-850fe9cb0349&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pddocid=urn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pdcontentcomponentid=6385&pdshepid=urn%3AcontentItem%3A7XWP-FBJ1-2NSD-P2F2-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=dy_fk&earg=sr0&prid=657f21b1-a9f0-4dd9-bd09-f7026be4eb9bUltimately, the claims alleged in the complaint are indistinguishable from those in DeShaney. The allegation--that Jennifer trusted the state to do what it said and relied on that promise in agreeing to testify--is not materially different from DeShaney, where the state was aware of the risk, by its actions expressed promises of help, and then failed to protect a young boy from his abusive father. 
https://advance.lexis.com/document/?pdmfid=1000516&crid=f785fc64-f780-4a23-b22a-850fe9cb0349&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pddocid=urn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pdcontentcomponentid=6385&pdshepid=urn%3AcontentItem%3A7XWP-FBJ1-2NSD-P2F2-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=dy_fk&earg=sr0&prid=657f21b1-a9f0-4dd9-bd09-f7026be4eb9bDeShaney directs that a state's affirmative constitutional duty to protect an individual from private violence arises when there is some deprivation of liberty by state actors. ("The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.") The state's promises, whether false or merely unkept, did not deprive Jennifer of the liberty to act on her own behalf nor did the state force Jennifer, against her will, to become dependent on it. Moreover, the state did not take away Jennifer's power to decide whether or not to continue to agree to testify. Merely alleging state actions which render the individual more vulnerable to harm, under a theory of state created danger, cannot be used as an end run around DeShaney's core holding. 
We add a few words about the separate shock the conscience test which plaintiff would also have to meet if she established a duty. In part, the test is meant to give incentives to prevent such gross government abuses of power as are truly outrageous. The facts here do not match the need for such incentives. Intimidation and even murder of witnesses is a growing national problem in major urban areas, plaguing witnesses, law enforcement officers, and the communities. https://advance.lexis.com/document/?pdmfid=1000516&crid=f785fc64-f780-4a23-b22a-850fe9cb0349&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pddocid=urn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pdcontentcomponentid=6385&pdshepid=urn%3AcontentItem%3A7XWP-FBJ1-2NSD-P2F2-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=dy_fk&earg=sr0&prid=657f21b1-a9f0-4dd9-bd09-f7026be4eb9bIt is in the interests of the police to protect witnesses in order to secure convictions. There can be any number of common reasons why police protection of witnesses is ineffectual, none of which involve acts by the police intended to cause the murder of a needed witness. Of course, there may be an extreme set of facts involving such deliberate and malevolent actions by police against witnesses as to shock the conscience and implicate a constitutional violation. Those await another day.
https://advance.lexis.com/document/?pdmfid=1000516&crid=f785fc64-f780-4a23-b22a-850fe9cb0349&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pddocid=urn%3AcontentItem%3A4FS8-6M10-0038-X21T-00000-00&pdcontentcomponentid=6385&pdshepid=urn%3AcontentItem%3A7XWP-FBJ1-2NSD-P2F2-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=dy_fk&earg=sr0&prid=657f21b1-a9f0-4dd9-bd09-f7026be4eb9bSince the plaintiff has failed to state a constitutional claim at all, her claims against the other defendants for supervisory liability and for failure to train fail. 

You Decide 11.3
Cash V. County of Erie, 654 F.3d 324 (2nd Cir. 2010).
It is undisputed that while held in pretrial confinement at the Erie County Holding Center ("ECHC"), plaintiff Vikki Cash was sexually assaulted by a male deputy, Marchon Hamilton. The issue on appeal was whether Cash produced sufficient evidence of municipal liability to support the jury verdict returned in her favor against Erie County. Trial evidence revealed that on December 17, 2002, while Cash was a pretrial detainee in a female housing unit at ECHC, Deputy Hamilton, acting alone, escorted some female detainees to the recreation center but ordered Cash to remain behind. When Hamilton returned, he grabbed Cash, put his hands over her nose and mouth, forced her into the deputies' bathroom, and raped her.
Cash reported the assault the next morning, prompting an investigation that led to Hamilton's arrest for first-degree rape in violation of New York Penal Law Section 130.35. Hamilton was suspended without pay and eventually pleaded guilty to third-degree rape in violation of New York Penal Law section 130.25, after which he resigned his deputy position. Because defendants did not dispute Hamilton's rape of Cash, the parties' focus at trial was on whether a County policy caused the assault. See generally Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). On that point, considerable attention was given to the policies that defendants implemented to protect prisoners from sexual exploitation and defendants' awareness of past sexual misconduct by prison guards notwithstanding such policies. Expert testimony was also received as to accepted deterrent practices at other correctional facilities.
Defendants submitted that, at the time of Cash's rape, policies were in place to prevent such an assault. As Sheriff Gallivan testified at trial, "[a] deputy was prohibited from having any type of relationship, intimate relationship with an inmate. A deputy was prohibited from having any physical contact with an inmate unless authorized by law in the case of justifiable use of force or preventing death or serious injury." These proscriptions are, in fact, mandated by New York state law, which deems persons in the custody of a state or local correctional facility "incapable of consent" to sexual conduct with facility employees. Persons who engage in sexual intercourse with persons incapable of consent are criminally culpable for third-degree rape; persons who engage in any sexual contact with persons incapable of consent are criminally culpable for second-degree sexual abuse.
Further, ECHC policy required that at the start of a new shift, a deputy of one sex announce his or her presence on a unit housing prisoners of another sex. No such announcement was required, however, when a deputy conducted periodic unannounced inspections of housing units, during which prisoners undressing, showering, or using the toilets might be viewed naked. No County policy prohibited a single deputy of one sex from being alone with a prisoner of another sex. Nor were any monitoring devices, such as surveillance cameras, ever employed to supervise such one-on-one interactions.
Sheriff Gallivan testified that in the years 1998 through 2002, approximately 85,000 prisoners passed through ECHC. In that time, prior to Cash's rape, he "only kn[e]w of one" complaint of sexual misconduct involving a male deputy and female detainee at ECHC. That earlier complaint apparently pertained to events that occurred in mid-January 1999 with respect to another female pretrial detainee at ECHC, Elizabeth Allen. Although Gallivan testified that he could not recall the details of the Allen complaint, he acknowledged that relevant findings would have been reported to him. This was in fact confirmed by documentary evidence addressed or copied to Gallivan.
This documentary evidence revealed an internal affairs investigation of Allen's claim that on or about January 15, 1999, a male guard, Deputy Gary Morgan, had engaged her in sexual intercourse, and that she had a condom to prove it. When interviewed, Allen revised her account, stating that while alone with Deputy Morgan, the two had engaged in various sexual acts just short of intercourse for which she expected to receive extra commissary items. Allen alleged that she had previously engaged in sexual activity with Morgan, as well as other guards but lacked any corroborating physical evidence of such encounters. She further reported that, on a number of occasions, she exposed her breasts and fondled herself in front of male guards in exchange for cigarettes or other commissary items.
When questioned, Morgan initially falsely stated that he had allowed Allen out of her cell on January 15, 1999, in violation of her "keep-lock" status, simply to allow her to retrieve cleaning equipment, and that no sexual activity occurred at that time. He later revised this account, stating that when released from her cell, Allen had exposed herself to him, which he knew she had a history of doing in front of male guards. He stated that, in the course of trying to return Allen to her cell, he "may" have touched her breasts but insisted that any such contact was unintentional and not sexual.
The Allen investigation report, addressed to Gallivan, was skeptical of Morgan's denial and found "likely . . . sexual contact" between the guard and Allen. Nevertheless, the report determined that such a charge could not be sustained in light of Allen's questionable veracity. The report concluded that Morgan could be found clearly to have violated ECHC policy only with respect to allowing a keep-lock prisoner out of her cell, failing to report Allen's exhibitionist behavior, and lying to investigators at his initial interview. It recommended 30 days' suspension. Instead, the Sheriff's Department suspended Morgan for only 3 days, which punishment he was permitted to satisfy by surrendering 3 days of compensatory time. The department cautioned Morgan that repetition of the conduct at issue could result in harsher discipline, including dismissal.
Gallivan testified that on March 11, 1999, in response to the Allen complaint and "highly publicized incidents" at other New York correctional facilities, ECHC Superintendent H. McCarthy Gipson issued a one-page memorandum entitled "Sexual Conduct," reminding facility personnel of ECHC's "no-contact" policy. The memorandum stated as follows:
Sexual conduct between Staff and Inmates is strictly prohibited, by the New York State Penal Law Article 130. Per the NYS Penal Law, inmates are not capable of consenting to any type of sexual conduct between an employee and exercising authority over them. The only permissible conduct is that which is within the scope of your regular duties and would not be considered sexual in nature.
The Erie County Holding Center encourages peer and supervisory reporting. Any Holding Center employee with information concerning inappropriate conduct, (other than criminal), on the part of another employee is encouraged to bring this to the attention of an appropriate supervisor. Wrongful conduct could be an embarrassment to the entire department. Furthermore, early discovery and intervention on the part of supervision could prevent further misconduct and decrease administrative sanctions . . . .
Any reports of misconduct will be thoroughly investigated.
Mem. from H. McCarthy Gipson to ECHC Personnel (March 11, 1999) ("Gipson Memorandum").
Gallivan explained that the Gipson Memorandum was issued to "prevent what happened in other facilities from happening at the holding center" and "to make clear to people [that] even though you've been trained in the policy and procedure, even though you know these things exist, be assured that it cannot take place, we will do something about it." 
Thomas Frame, a corrections consultant who had worked as a Pennsylvania prison warden for 24 years, testified for Cash as an expert witness. Frame pronounced it "bad policy" for ECHC to allow male guards to be alone and unmonitored with female prisoners. He explained that such a practice jeopardized the safety of female prisoners because the male guard "has authority over the inmate and . . . can direct that inmate to do almost anything he wants." Frame testified that "good and accepted practice" is to pair a female officer with a male officer whenever direct interaction with a female prisoner is required. He further testified that the Allen complaint should have alerted defendants to the need for such a policy. Frame opined that the Gipson Memorandum was an inadequate response to the Allen complaint because it failed to "remove the situation" posing a risk to female prisoners, that is, allowing a single unmonitored male deputy to interact with female prisoners. Defendants offered no contrary expert opinion.
The district court reserved decision and proceeded to charge the jury. With respect to the section 1983 claim, the district court instructed that defendants could not be held liable for constitutional violations by Deputy Hamilton merely because he was a County employee. Rather, to establish municipal liability, Cash had to prove "by a preponderance of the evidence that the actions of Marchon Hamilton . . . [were] the result of an official policy, practice or custom." The court explained that such a policy, practice, or custom did not have to be in writing or formally adopted. The court stated that Sheriff Gallivan was the relevant County policymaker with respect to ECHC, a point conceded by defendants . . . .
Title 42 U.S.C. section 1983 states in pertinent part as follows:
http://www.lexis.com/research/retrieve?_m=40f7743394888750e7c8d82caecd80ec&_browseType=TEXTONLY&docnum=41&_fmtstr=FULL&_startdoc=26&wchp=dGLbVzV-zSkAb&_md5=fc4450d52ebfce33011c9f0c715e6f68 - clscc3 
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
A municipality may be liable under section 1983 only "if the governmental body itself 'subjects' a person to a deprivation of rights or 'causes' a person 'to be subjected' to such deprivation." In other words, municipalities are "responsible only for 'their own illegal acts'" and cannot be held "vicariously liable under section 1983 for their employees' actions." Rather, a "plaintiff must demonstrate that, through its deliberate conduct, the municipality was the 'moving force' behind the alleged injury." In short, to establish municipal liability under section 1983, a plaintiff must prove that "action pursuant to official municipal policy" caused the alleged constitutional injury. 
A municipal policy may be pronounced or tacit and reflected in either action or inaction. In the latter respect, a "city's policy of inaction in light of notice that its program will cause constitutional violations is the functional equivalent of a decision by the city itself to violate the Constitution." see City of Canton v. Harris, 489 U.S. at 396 (O'Connor, J., concurring in part and dissenting in part) ("Where a section 1983 plaintiff can establish that the facts available to city policymakers put them on actual or constructive notice that the particular omission is substantially certain to result in the violation of the constitutional rights of their citizens, the dictates of Monell are satisfied."). Consistent with this principle, "where a policymaking official exhibits deliberate indifference to constitutional deprivations caused by subordinates, such that the official's inaction constitutes a deliberate choice, that acquiescence may be properly thought of as a city policy or custom that is actionable under section 1983."
As the Supreme Court has cautioned, "deliberate indifference" is "'a stringent standard of fault’," and necessarily depends on a careful assessment of the facts at issue in a particular case. The operative inquiry is whether those facts demonstrate that the policymaker's inaction was the result of "conscious choice" and not "mere negligence." Thus, deliberate indifference may be inferred where "the need for more or better supervision to protect against constitutional violations was obvious," but the policymaker "fail[ed] to make meaningful efforts to address the risk of harm to plaintiffs." 
Defendants do not dispute that Cash's constitutional right to due process was violated when, while in pretrial confinement at ECHC, she was raped by a guard; that the guard was then acting under color of state law; or that Sheriff Gallivan was the relevant policy maker for purposes of assessing municipal liability. Defendants' motion focused on a single issue: The sufficiency of the evidence to demonstrate that Gallivan acted with deliberate indifference to the risk that Cash would be sexually assaulted by an unmonitored guard.
The existence of an affirmative duty to protect does not mean that any harm that befalls a person in state custody necessarily manifests a municipal policy of deliberate indifference to prisoner safety. But an affirmative duty, by its nature, implies a proactive responsibility to assess the risks of harm presented by given circumstances and to take reasonable preventive measures in advance of harm occurring, not simply to respond to harms only after they occur.
In this case, defendants cannot claim that the evidence was insufficient to alert them to the risk of sexual exploitation posed by male deputies guarding female prisoners at ECHC. That risk is acknowledged in New York state law, which pronounces prisoners categorically incapable of consenting to any sexual activity with guards, and subjects guards to criminal liability for such conduct. In short, these laws recognize the moral certainty of guards confronting prisoners in sexually tempting circumstances with such a frequent risk of harm to prisoners as to require a complete prohibition on any sexual activity. Thus, the question presented by this case is not whether defendants should have realized the need for such a prohibition, but whether defendants could rely simply on guards' awareness of these criminal laws (and ECHC policies implementing them) to deter sexual exploitation of prisoners or whether defendants had reason to know that more was required to discharge their affirmative protective duty, specifically, precluding or at least monitoring one-on-one contact between guards and prisoners.
To explain, we begin by noting that the pattern ordinarily necessary to prove deliberate indifference in the context of a failure-to-train claim does not neatly transfer to this case. A duty to train arises so that subordinates entrusted with the discretionary exercise of municipal power can distinguish between lawful and unlawful choices. Because the exercise of such discretion can arise in myriad circumstances, the "nuance" of a particular training need may only become apparent to municipal policy makers after a pattern of violations arises in substantially similar circumstances. The same conclusion obtains with respect to the need to supervise subordinates who must make a range of discretionary choices in the exercise of delegated municipal power.
The deliberate indifference concern in this case, however, is not with a failure to train prison guards to distinguish between permissible and impermissible sexual contact with prisoners. Nor is it with providing sufficient supervision to ensure that guards make correct choices in this respect. New York affords guards no discretion respecting sexual contact with prisoners; the state's proscription of such contact is absolute. Thus, the deliberate indifference concern here is with the adequacy of defendants' own actions to prevent sexual contact between guards and prisoners consistent with their affirmative duty to protect prisoners in their custody.
Mindful of this affirmative duty to protect, a reasonable jury could have concluded that the 1999 Allen complaint would have alerted Gallivan to the fact that mere proscriptions on sexual contact between guards and prisoners had proved an insufficient deterrent to sexual exploitation. The Allen investigation report indicated, at best, that a female prisoner repeatedly had engaged in sexual exhibitionism before various guards, none of whom had reported the activity and some of whom may have paid for it with commissary items. At worst, the report indicated that male guards had engaged a female prisoner in a variety of more intimate sexual activities. Indeed, investigators indicated that, despite Allen's dubious credibility, they thought it likely that such prohibited sexual activity had in fact occurred in Allen's case. A jury could have concluded that this investigative determination should have alerted defendants that they could not rely simply on guards' awareness of a no-tolerance policy to deter sexual misconduct. Likewise, a jury could have determined that Gallivan's conceded awareness of "highly publicized incidents" at other New York correctional facilities should further have alerted him to the inadequacy of a mere proscriptive policy to deter guards' sexual misconduct.
In concluding otherwise, the district court noted that Cash had been sexually assaulted, and there was no evidence that the Allen incident or those arising in other institutions were assaultive. This reasoning overlooks the fact that, as a matter of New York state law, any sexual contact between a guard and a prisoner is deemed nonconsensual due to the inherent power differential between guards and prisoners. State law draws no distinction between assaultive and nonassaultive sexual activity in the prison context; it tolerates neither. Defendants were thus obligated to do the same in carrying out their affirmative duty to protect prisoners from harm.
Accordingly, even if Gallivan had no knowledge of prior sexual assaults, it was hardly speculative for a jury to conclude that, at least by 1999, he knew or should have known that guards at ECHC and other local correctional facilities were engaging in proscribed sexual contact with prisoners and that continued reliance on penal proscriptions alone was insufficient to protect prisoners from the range of harms associated with such misconduct, of which rape is obviously the most serious example. In the context of such an absolute proscription and a duty to protect, knowledge that an established practice has proved insufficient to deter lesser misconduct can be found to serve notice that the practice is also insufficient to deter more egregious misconduct. 
In fact, defendants themselves recognized a need for some response to the 1999 incidents at ECHC and other state correctional facilities. This was evidenced by issuance of the Gipson Memorandum. The jury might have inferred therefrom that defendants were not indifferent to the problem of sexual misconduct by guards, but it was not compelled to do so. In making a deliberate indifference assessment, the jury was entitled to rely on unrebutted expert testimony that the Gipson Memorandum's reiteration of existing law and ECHC policy was inadequate to protect female prisoners from sexual harm. Indeed, Gallivan himself conceded at trial that the "no-contact" policy referenced in the Gipson Memorandum had been in place at ECHC prior to 1999, yet had failed to prevent the sexual misconduct referenced in the Allen report. As the Supreme Court recently reiterated, "[p]olicymakers' continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their action--the 'deliberate indifference'--necessary to trigger municipal liability." That observation, made with reference to a claim of inadequate training, applies with no less force to a supervision claim, particularly where defendants operate under an affirmative duty of protection and their employees are absolutely prohibited by the criminal law from engaging in certain conduct.
In addition to explaining why the Gipson Memorandum provided inadequate protection, Cash's expert witness testified that accepted prison practice for deterring sexual misconduct between male guards and female prisoners was to prohibit unmonitored one-on-one interactions. To the extent ECHC policies permitted such interactions, the expert opined that the Allen complaint should have served as a "red light" alerting defendants that "this is not a good policy," and that it was necessary to eliminate the conditions conducive to the prohibited activity. We have no occasion to consider the possibility of contrary views; defendants offered no such evidence. Thus, we must assume that the jury credited the opinion of Cash's expert and permissibly relied on it in deciding that Gallivan's failure to do more than issue the Gipson Memorandum demonstrated deliberate indifference to the risk of continued and possibly aggravated sexual misconduct posed by unmonitored one-on-one contact between male guards and female prisoners. Deliberate indifference may be shown "through expert testimony that a practice condoned by the defendant municipality was contrary to the practice of most police departments and was particularly dangerous because it presented an unusually high risk that constitutional rights would be violated." 
We must further assume that the jury drew adverse inferences of deliberate indifference from defendants' token response to the misconduct detailed in the Allen investigation report. Gallivan testified that he could not even recall whether he ever reviewed the Allen investigation report--which was addressed to him--or only relied on a subordinate's account of its contents. Nevertheless, rather than follow investigators'] recommendation to suspend the offending deputy for 30 days, the Sheriff's Department imposed only 3 days' suspension, and allowed the deputy to satisfy the punishment by giving up accrued compensatory time. Further, defendants' apparent failure to make any effort to identify, much less discipline, other guards involved in a broader pay-for-exhibitionism practice at ECHC could have supported a jury inference that defendants were not committed to providing the supervision and discipline necessary to enforce the no-contact policy and, thereby, to protect prisoners from sexual exploitation. Additional support for such an inference might have been found in Gallivan's professed inability on the stand to provide a "yes" or "no" answer to the question whether, as sheriff, he had "a duty to keep safe any inmates that were put into [his] care and custody." As the jury heard, such a duty is clearly prescribed by New York Correction Law.
In so construing the record, we do not suggest that a reasonable jury could not have viewed this trial evidence more favorably to defendants. Indeed, this case presents a close question as to how to weigh the evidence advanced to establish deliberate indifference. But it is not a question that we think must be resolved as a matter of law rather than fact--for the defendants. When the evidence is viewed in the light most favorable to Cash and all inferences are drawn in her favor, a reasonable jury was not compelled to find for defendants. Rather, the jury reasonably could have found that defendants knew, by virtue of New York state law, that female prisoners in their custody faced a risk of sexual abuse by male guards; that, by 1999, defendants also knew that a policy simply proscribing all sexual contact between male guards and female prisoners was insufficient to deter such conduct at ECHC; and that, in these circumstances, defendants' mere reiteration of the proscriptive policy unaccompanied by any proactive steps to minimize the opportunity for exploitation, as for example by prohibiting unmonitored one-on-one interactions between guards and prisoners, demonstrated deliberate indifference to defendants' affirmative duty to protect prisoners from sexual exploitation. Accordingly, the district court erred in granting defendants judgment as a matter of law.
Because defendants owed plaintiff an affirmative duty of care, and because any sexual contact between a guard and a prisoner is absolutely proscribed by New York state law, a reasonable jury could have found that once defendants learned that guards were violating an absolute proscription in any respect, defendants' actions to prevent future violations were so deficient as to manifest deliberate indifference to a risk of the full range of proscribed sexual conduct, including the sexual assault suffered by plaintiff.
Jacobs, J. dissenting
Nothing supports even this generalized risk other than the complaint of inmate Allen, 3 years earlier--a complaint that was investigated, but that yielded ambiguous conclusions establishing no more than that the inmate exhibited herself sexually to guards who did not report her, and that one or more guards gave her commissary items. One guard was found to have violated policy and was given a 3-day suspension without pay. Thus, the Allen complaint was not ignored: It provoked an investigation; and the investigation resulted in discipline. This is not deliberate indifference to sexual exploitation, and far less is it deliberate indifference to the risk of rape. In faulting the sheriff and County for handling the Allen complaint in a way that could evidence deliberate indifference to rape, the opinion elides critical particulars of that complaint:
Allen conceded that she knowingly lied when she alleged that (1) she had sexual intercourse with the guard, (2) a female guard was complicit, (3) she had physical evidence--a condom--that could be linked to the guard. 
Allen had a history of threatening guards and making false allegations to "get even" with them for "not getting her what she wanted." She racked up 28 violations of prison rules in the 30 days around the incident. 
The investigator found that Allen's allegation was made at least partly out of self-interest: "Ms. Allen stated she had the [condom] and she wanted to know what was 'in it' for her"; and her statement to investigators was in exchange for the potential of a statement by the prison superintendent to the judge on her behalf. 
She conceded that she seduced the guard: "[H]e didn't force hisself on me or notin'. An, I totally seduced him. I mean, I totally went out my way to get him." "Um, when I found out he was interested in me, I made advances at him." 
That was her standard practice: "I do put on shows for the officers. . . . [I]f I see dey interested . . . dats when I go [i]n for the kill. I be like, 'Oh, you like what you see?' An, I be like, 'Well give me some cigarettes’."
There is no evidence of sexual misconduct by guards at the ECHC prior to Cash's assault besides these questionable allegations from one inmate, 3 years earlier--at a facility through which 17,000 inmates pass every year.
The majority opinion implicitly concedes that the Allen incident may have been insufficient to put the sheriff and the County on notice that Cash might be raped; so the opinion relies as well on evidence that the sheriff was aware of incidents at other New York correctional facilities. If the evidence in this case amounts to sufficient warning of a criminal sexual assault, then a supervisor or government is always on notice of the risk of sexual abuses in prisons and will always be liable when, sooner or later, something bad happens. The majority opinion is thus unbounded: It combines an ever-present risk with an inferred "proactive responsibility," in a way that constitutes strict (and vicarious) liability. And nothing limits the opinion to conduct by guards or to sexual conduct. Did a warden or sheriff, a guard or a County know that sometime in past years one inmate hit another? Or that a guard observed or tolerated sexual misconduct by an inmate and received insufficient discipline for failing to report it (or for a gift of candy)? Or that something like that happened someplace else in the state? If so, they could be held liable as well for every act of prisoner-on-prisoner violence or sexual misconduct (even rape). To hold a municipality and its policy maker liable in this way eviscerates the Supreme Court's limitations on municipal and policy-maker liability.
The measures taken by defendants to prevent sexual exploitation of inmates were stringent: a no-excuses policy that is integral to training, that is enforced by supervision, that is reinforced by threat of discipline in a written notice, and that was implemented by an investigation and discipline following the only relevant inmate grievance in prior years. Yet the majority opinion holds that the jury could find that the defendants knew that the measures taken to protect Cash were insufficient. The majority opinion "must assume" (and I agree) that the only ground on which the jury could have found deliberate indifference is failure to implement a policy (urged by plaintiff's expert witness) that the ECHC should have had a policy altogether preventing "unmonitored one-on-one contact between male guards and female prisoners." The expert offered as good practice (in the opinion's words) "to pair a female officer with a male officer whenever direct interaction with a female prisoner is required." 
Among the absurdities here is that no guard can know when direct contact may become required; in prison, interventions are not always by appointment. And at the risk of being obvious, this policy would either impose enormous incremental costs or would halve the personnel available for supervision of the facility (and thereby increase the risk of prisoner-on-prisoner violence and abuse).
In any event, the risk associated with having men and women interact in a closed environment is bred in the bone; it means nothing to say that the prison authorities should anticipate it. Abating that risk is another matter. If the majority opinion is sound, the only effective solution would be to have no guards of the opposite sex in women's or men's prisons. The majority opinion does not take account of the considerable ramifications. Because male inmates greatly outnumber female inmates, the resulting curtailment of opportunity for female guards would likely trigger valid Title VII suits. People with known same-sex preferences may not be able to serve as guards in any prison. And in another sphere, since military officers are responsible for their subordinates, we could not have mixing of the sexes in the military, unless (I suppose) the officers are paired off.

Chapter 12: The Initiation of the Legal Process, Bail, and the Right to Counsel
You Decide 12.1
United States v. Hir, 517 F.3d 1081 (9th Cir. 2008).
Reinhardt, Circuit Judge:
Defendant, Rahmat Abd Hir, is charged with two counts of conspiring to provide and providing material support to terrorists, in violation of 18 U.S.C. § 2339A; 13 counts of contributing goods and services to a specially designated global terrorist, in violation of 50 U.S.C. § 1705(b), and 1 count of making a material false statement, in violation of 18 U.S.C. § 1001. He appeals the district court's pretrial detention order denying bail. We have jurisdiction pursuant to 18 U.S.C. § 3145(c) and 28 U.S.C. § 1291, and we affirm.
Abd Hir is a 43-year-old American citizen. Born in Malaysia, where many of his immediate family members continue to reside, Abd Hir moved to the United States approximately 20 years ago and has lived in the San Francisco Bay Area for the past 10 years. Abd Hir and his wife, also a U.S. citizen, have four young children, all of whom were born in this country. Aside from the current charges, Abd Hir has no criminal record and no history of substance abuse.
The charges in this case arise out of Abd Hir's contacts with his brother, Zulkifli Abd Hir ("Zulkifli"). Zulkifli is an acknowledged member of the Moro Islamic Liberation Front ("MILF"), a secessionist force operating in the southern Philippines, and an alleged high-ranking member of Jemaah Islamiyah, an al-Qaeda affiliated foreign terrorist organization that operates in Indonesia, the Philippines, and Malaysia. Jemaah Islamiyah is suspected of carrying out numerous deadly attacks in Southeast Asia, among them, the 2002 bombing of a nightclub in Bali that killed over 200 people and the 2004 bombing of the Australian embassy in Jakarta that killed three people and left more than 100 wounded. On September 5, 2003, the U.S. Office of Foreign Assets Control designated Zulkifli a "Specially Designated Global Terrorist," thereby making it illegal to contribute funds, goods, or services to his benefit. 
Between June 2006 and August 2007, Abd Hir and his brother were in regular e-mail contact. Their communications clearly show that Abd Hir knew that Zulkifli was wanted by the U.S. government for terrorist activities. On two occasions, Abd Hir sent e-mails to his brother with links to newspaper articles alleging that Zulkifli was a high-ranking member of Jemaah Islamiyah, including one that offered a 5-million dollar reward for information leading to his capture. Their correspondence also makes plain that Abd Hir knew of Zulkifli's violent activities in the Philippines. During their e-mail exchange, Zulkifli informed Abd Hir of attacks that he and his allies planned to carry out, sometimes advising Abd Hir to "check out" the next day's papers for news of the operation.
Despite this knowledge, Abd Hir consistently responded to Zulkifli's requests for money and supplies. During this time, Abd Hir sent over $10,000 to his brother using various bank accounts in the Philippines. He also sent packages, often using false names and return addresses, which included supplies ranging from candy and underwear to accessories for guns, backpacks, knives, and publications about firearms. On several occasions, Abd Hir sent his brother hand-held two-way radios. The government alleges that some of these radios were then used to make Improvised Explosive Devices ("IEDs") which were detonated in a bombing in the Philippines that left 5 dead and 29 injured.
On August 1, 2007, the grand jury returned its 16-count indictment. The following day, Abd Hir was arrested and search warrants were executed at his home, office, and at a commercial storage facility that he rented. The items recovered during these searches included multiple firearms, ammunition, and military manuals on sniper training, guerilla warfare, and improvised munitions. The searches also turned up jihadist literature as well as old photographs of Abd Hir in a face mask and sunglasses posing with several assault rifles while seated on a couch with a small child.
Abd Hir's first two detention hearings were held before a magistrate judge. See 18 U.S.C. § 3142(e) (2006) (permitting pretrial detention only "[i]f, after a hearing . . ., the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community"). With respect to flight risk, the magistrate judge concluded that any risk that Abd Hir might flee could be addressed through the imposition of conditions of release, including the posting of $600,000 real property as a surety against flight. With respect to dangerousness, the magistrate judge found that Abd Hir did not pose a danger to any person or the community within the Northern District of California. Accordingly, the magistrate judge ordered Abd Hir released pending trial. The government moved for a stay pending its appeal of the release order to the district judge.
The district judge heard argument shortly afterward. He adopted, in part, the magistrate judge's flight risk determination and rejected his dangerousness determination. With respect to flight risk, the district judge agreed that any such risk could be addressed through conditions of release but concluded that the amount of the bond set by the magistrate judge was not sufficiently high. With respect to dangerousness, the district judge found that 18 U.S.C. § 3142(e) does not require a showing that the defendant poses a danger to a person or a community within the court's jurisdiction; he then concluded that Abd Hir posed a danger to a community outside of the United States. Although he did not identify the community, it was quite obviously the Philippines.
Abd Hir appeals the district judge's pretrial detention order on three grounds. First, he argues that the district court erred as a matter of law in interpreting the Bail Reform Act to permit pretrial detention of an individual who poses a danger only to a community outside of the United States. Second, Abd Hir contends that even if the Bail Reform Act's definition of community encompasses foreign countries, the district court erred in finding that he poses such a danger. Third, he disputes the district court's determination that no condition or combination of conditions would reasonably assure the safety of the community. 
The Bail Reform Act governs the detention of a defendant pending trial, 18 U.S.C. § 3142 (2006). The Act mandates the release of a person pending trial unless the court "finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community," 18 U.S.C. § 3142(e). Where, as here, there is probable cause to believe that the defendant has committed an offense identified as a "[f]ederal crime of terrorism" under 18 U.S.C. § 2332b(g)(5)(B) for which a maximum term of imprisonment of 10 years or more is prescribed, there is a rebuttable presumption that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community," 18 U.S.C. § 3142(e).2 Although the presumption shifts a burden of production to the defendant, the burden of persuasion remains with the government. A finding that a defendant is a danger to any other person or the community must be supported by "clear and convincing evidence," 18 U.S.C. § 3142(f)(2)(B).
If a defendant proffers evidence to rebut the presumption of dangerousness, the court considers four factors in determining whether the pretrial detention standard is met: (1) the nature and circumstances of the offense charged, including whether the offense is a federal crime of terrorism; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, including the person's character, physical and mental condition, family and community ties, employment, financial resources, past criminal conduct, and history relating to drug or alcohol abuse; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the defendant's release, 18 U.S.C. § 3142(g). The presumption is not erased when a defendant proffers evidence to rebut it; rather the presumption "remains in the case as an evidentiary finding militating against release, to be weighed along with other evidence relevant to factors listed in § 3142(g)." 
The district judge concluded that "a finding of dangerousness [under 18 U.S.C. § 3142(e)] does not necessarily require a showing of danger to persons or to the community within a limited geographic area." Abd Hir disagrees, arguing that the district court erred as a matter of law in determining that he could be detained pending trial on the ground that he posed a danger not to the local or national community but to a community outside of the United States.3 Whether the Bail Reform Act permits the pretrial detention of individuals who pose a danger only to a foreign "community" is a question of first impression.
The statutory language itself provides little in the way of an answer. Section 3142(e) does not define the term "community." Nor do dictionaries provide us with any assistance; their definitions of the term range from "[a] neighborhood, vicinity, or locality," BLACK'S LAW DICTIONARY 273 (7th ed.1999), to "[a] society or group of people with similar rights or interests," id., and "society, in general; the public,") ("When a statute does not define a term, a court should construe that term in accordance with its `ordinary, contemporary, common meaning’.") (Rather, the term "community" is amorphous; thus, we are required to look beyond the plain text of the statute in our attempt to determine its meaning for purposes of Section 3142(e) of the Bail Reform Act.)
We first reject the magistrate judge's view that the term "community" in Section 3142(e) of the Bail Reform Act is limited to a geographic location within the court's jurisdiction. Limiting the definition of community to the jurisdiction in which the crime occurred, in this case the Northern District of California, would lead to arbitrary and absurd results. We refuse to direct a court assessing the dangerousness of a defendant charged with the armed robbery of a bank in Los Angeles that it may not take into account the risk that the defendant, if released before trial, would rob a bank in San Diego or Bakersfield. Similarly, requiring a court in the Eastern District of New York, which includes one part of New York City, to ignore the threat posed by an alleged narcotics dealer to the community in the state's Southern District, which covers another part of that city, would not only be illogical but irresponsible. It would likewise be absurd to hold that a court in Florida must ignore the danger that an individual accused of defrauding susceptible persons in that state may pose to residents of Oregon.
Nor would it make sense to conclude, as Abd Hir argues, that the relevant community must be a community located within the geographic bounds of the United States.4 Where, as here, a defendant is charged with an offense that had a significant adverse effect on a community abroad, we see no justification for preventing a court, for bail purposes, from considering the continuing risk to that community that might be posed by the defendant's pretrial release.
For the purpose of resolving the case before us, we need not adopt a general rule governing the scope--geographic or otherwise--of the term "community" in Section 3142(e) of the Bail Reform Act. We need decide only whether a court making a bail determination may consider the threat that a defendant poses to a foreign community in a case in which the defendant has been charged with an offense under American law, the effect of which occurs abroad. Along with the district judge, we conclude that it may. Any other interpretation would lead to an incongruous result: a court would be able to try a defendant under the laws of the United States for a crime the effects of which are felt abroad but be unable to detain the defendant who committed the crime despite clear and convincing evidence that he continues to pose a danger to the same foreign community.
Here, Abd Hir is charged with providing material support in order to further the commission of terrorist activities in the Philippines. Although the threat in this case is posed to a foreign community, it is an offense that is punishable under the laws of the United States. Because the district court has the authority to try Abd Hir under American law for a crime that allegedly resulted in grave harm to residents of the Philippines, we find no justification for preventing it from considering the continuing threat that Abd Hir would pose to that community if he were released pending trial. We hold that, under these circumstances, a court required to make a dangerousness determination under Section 3142(e) may consider whether the defendant would pose a danger to a foreign community. Accordingly, we find no error in the district judge's decision to consider the danger that Abd Hir would pose to the Philippines if released pending trial. 
Our holding comports with the history and purpose of the Bail Reform Act of 1984 ("1984 Act"). The predecessor of the 1984 Act, the Bail Reform Act of 1966 ("1966 Act"), allowed judges making pretrial detention determinations to consider only whether the offense committed was punishable by death or whether the accused posed a flight risk; it did not allow judges to consider the dangerousness of a defendant when making a bail determination. The current statute, the Bail Reform Act of 1984, was enacted, in large part, to address growing concern that dangerous defendants were committing crimes while released on bail. In passing the 1984 Act, Congress criticized the earlier statute for "fail[ing] to grant the courts . . . the authority to deny release to those defendants who pose an especially grave risk to the safety of the community." Congress explained that the "broad base of support for giving judges the authority to weigh risks to community safety in pretrial release decisions is a reflection of the deep public concern, which the Committee shares, about the growing problem of crimes committed by persons on release." 
Congress, then, enacted the Bail Reform Act of 1984 with the explicit purpose of ensuring that courts would consider the danger posed by releasing a defendant on bail. Our holding accomplishes just that it enables the court to consider the nature of the crime with which a defendant is charged and the danger that if he were released he would commit similar crimes again.
In sum, we conclude that a court making a pretrial release determination under Section 3142(e) of the Bail Reform Act may, at least under the circumstances present here, consider the danger that a defendant poses to a foreign community. Where a defendant is charged with committing a crime under U.S. law that had a substantial harmful effect on a community overseas, we hold that a court should consider the danger that would be posed to that community if the defendant were released pending trial.
Having concluded that the district judge properly considered harm to a foreign community in making his dangerousness determination, we turn to Abd Hir's second ground for appeal. Abd Hir next argues that the district court erred in finding that he posed a danger to the community despite the fact that he had no prior criminal or violent history. We disagree.
The district judge made extensive, well-reasoned findings with respect to each of the four statutory factors set forth in 18 U.S.C. § 3142(g). Although we "make an independent examination of the facts, the findings, and the record to determine whether the pretrial detention order" is proper, in this case, we have no difficulty in agreeing with the district judge's conclusion that Abd Hir poses a danger to the community. Three of the four statutory factors weigh strongly in favor of this conclusion. First, "the nature and circumstances of the offense[s] charged" are extremely serious, 18 U.S.C. § 3142(g)(1) (specifically requiring the court to consider whether the offense is "a Federal crime of terrorism"). The indictment alleges that Abd Hir, acting with full knowledge of Zulkifli's designation as a Specially Designated Global Terrorist and of the nature of his violent activities, sent both money and supplies to his brother in support of those activities. If convicted, Abd Hir faces up to 298 years in prison.
Second, "the weight of the evidence against" Abd Hir is considerable, 18 U.S.C. § 3142(g)(2). We recognize that "the weight of the evidence is the least important of the various factors." Motamedi, 767 F.2d at 1408 (explaining that "the statute neither requires nor permits a pretrial determination that a person is guilty"). Nevertheless, the statute requires that we consider the evidence "in terms of the likelihood that [Abd Hir] . . . will pose a danger." Id. We conclude that the weight of the evidence clearly and convincingly establishes such a likelihood. The evidence that we consider in arriving at this conclusion includes e-mail correspondence between the brothers which tends to establish Abd Hir's knowledge of his brother's ties to a terrorist organization, the nature of Zulkifli's activities in the Philippines, and Abd Hir's willingness to send money and material support in furtherance of those activities; Abd Hir's admissions to the FBI that he knew that his brother was a wanted terrorist and that he regularly exchanged e-mails with his brother in which Zulkifli sought money and supplies for his activities;6 and a large cache of firearms and ammunition found in searches of Abd Hir's residence and rented storage facility, as well as military manuals on sniper training, guerilla warfare, and improvised munitions.7 The second statutory factor, then, also weighs in favor of a finding of dangerousness.
Third, "the nature and seriousness of the danger to . . . the community that would be posed by [Abd Hir's] release" is significant, 18 U.S.C. § 3142(g)(4). As we have previously indicated, given the nature of the charges, we consider the danger that Abd Hir poses to the community, at home or abroad, that would likely be at risk if he were released. In this case, that community is the Philippines. We conclude that the evidence proffered by the government clearly and convincingly establishes Abd Hir's willingness to send money and supplies to his brother, knowing that these materials will be used in support of violent activities that pose a serious danger to the Philippines, including the indiscriminate bombing of civilians. We therefore conclude that this factor also weighs in favor of a finding of dangerousness.
The remaining statutory factor weighs against a finding of dangerousness. Abd Hir's "history and characteristics" reflect that he was a law-abiding citizen prior to his alleged commission of the charged offenses and that he maintains significant ties to his local community. 18 U.S.C. § 3142(g)(3). Although Abd Hir was born in Malaysia, and many of his family members still reside there, he has lived and worked in the United States for approximately 20 years. He holds undergraduate and graduate degrees from Arizona State University, is married to a U.S. citizen, is the father of four children all of whom were born in the United States, and was supported at his court appearances by friends and family members, several of whom were willing to act as sureties for his release. Abd Hir has never before been charged with a crime, nor does he have any history of violence or substance abuse.
We have given these positive personal attributes serious consideration. We are not persuaded, however, that they overcome the strength of the factors pointing to Abd Hir's dangerousness (see, e.g., Rodriguez, 950 F.2d at 89; explaining that "[a]lthough a prior record of violence eases the government's burden of showing dangerousness, it is not essential"). We conclude that Abd Hir's history as a law-abiding citizen and his significant ties to the local community do not outweigh the extremely serious nature of the offenses with which he is charged, including his willingness to provide dangerous materials for use against civilians, while attempting to disguise his role in the affair, the weight of the evidence against him, and the nature and gravity of the danger that would be posed by his release. The district judge's finding of dangerousness is well-supported and we affirm its determination.
Our inquiry is not yet complete. Even where a defendant poses a danger, he must still be released if there is a "condition or combination of conditions [that] will reasonably assure . . . the safety of any other person and the community," 18 U.S.C. § 3142(e).9 In the present case, Abd Hir and the Office of Pretrial Services propose an extensive list of release conditions. The district judge concluded that neither the proposed conditions nor any other combination of conditions would reasonably assure the safety of the community. We agree.
The release conditions proposed by Abd Hir and Pretrial Services include the following: (1) a ban on the possession of any firearms or ammunition; (2) a ban on communication with Zulkifli or anyone else in the Philippines, without the permission of Pretrial Services, and the provision of a copy of Abd Hir's telephone bill upon request; (3) a ban on communication with any Specially Designated Global Terrorist; (4) monitoring of Abd Hir by means of global positioning satellite; (5) a ban on the use of the Internet outside of work or for nonwork-related purposes; (6) a requirement that Abd Hir report to Pretrial Services once a week; (7) a ban on the sending of money overseas without the permission of Pretrial Services; (8) a ban on the sending of packages overseas without the permission of Pretrial Services and on the use of any false names or addresses; and (9) the surrender of all passports and travel documents not already seized by the Government.
Although these proposed conditions of release are strict, they contain one critical flaw. In order to be effective, they depend on Abd Hir's good faith compliance. In Tortora, the First Circuit considered what conditions, if any, would mitigate the danger posed by the release of an alleged member of a prominent Mafia family, charged with several violations of the Racketeer Influenced and Corrupt Organizations ("RICO") statute. In that case, the district court ordered Tortora's release under a strict set of release conditions similar to those proposed by Abd Hir, including restrictions on his communications with any person not approved by counsel, monitoring of his home phone through a pen register, and 24-hr house arrest, except for visits to doctors and lawyers, when he would be required to wear an electronic bracelet. Despite this elaborate set of conditions, the First Circuit reversed, reasoning that "the conditions as a whole are flawed in that their success depends largely on the defendant's good faith or lack of it. They can be too easily circumvented or manipulated."  
As in Tortora, the effectiveness of the proposed release conditions, or any conditions that might be imposed, necessarily depends on Abd Hir's good faith compliance. This is particularly the case because of the nature of the crimes with which Abd Hir is charged: crimes that involve communications and that are therefore not readily susceptible to effective monitoring. For example, a representative from the Office of Pretrial Services conceded that it would not be feasible to monitor all of Abd Hir's telephone calls, his use of a laptop brought into his home, and any activity taking place through unknown bank accounts that could be accessed by a phone call or a computer. At oral argument, the government contended that under the proposed conditions, it would not be possible to detect whether Abd Hir asked a family member or friend to send money or a package to his brother. In short, the conditions here, as in Tortora, may be "easily circumvented or manipulated." 
The question then is whether Abd Hir would comply in good faith with the proposed, or any other, conditions of release. We conclude that there is an unacceptably high risk that he would not. The evidence before us clearly and convincingly points to Abd Hir's willingness to provide material assistance to his brother with full knowledge of Zulkifli's alleged terrorist affiliations and violent activities in the Philippines. It defies common sense to believe that Abd Hir did not know that his provision of money and supplies to his brother under these circumstances was illegal (see, e.g., Al-Arian, 280 F.Supp.2d at 1357; relying on defendants' "tenacious[] loyal[ty]" and provision of support to a terrorist organization despite knowledge of the organization's illegal activities in concluding that the court "cannot fashion any conditions that will reasonably conform their behavior"). Indeed, Abd Hir's alleged use of false names and addresses when sending packages and his use of multiple bank accounts for money transfers tend to show that he knew that what he was doing was wrong (explaining that Al-Arian "avoided using his home telephone, instructed others to be careful, or used coded terms to conceal the subjects of conversations" in order to hide his involvement with a terrorist organization). On this record, it is difficult to imagine that Abd Hir did not know the seriousness of his offenses and the gravity of their consequences--both in terms of the harm that was being done to others and the penalties that he faced for his involvement. Nevertheless, Abd Hir persisted.
Given the strength of this evidence, coupled with the statutory presumption that no conditions of release will reasonably assure the safety of the community where a defendant is charged with a federal crime of terrorism, we agree with the district judge that there is an unacceptably high risk that Abd Hir would not comply in good faith with the proposed conditions, or any other combination of release conditions, imposed upon him. Accordingly, we conclude that "no condition or combination of conditions will reasonably assure . . . the safety of . . . the community." 
The sensitive and serious nature of the offenses with which Abd Hir is charged require our most careful and objective review. As the district judge explained,
There is a delicate balance between doing what is necessary to protect a democratic society from terrorism and protecting the individual rights that make that society democratic. A criminal defendant does not lose or suffer a diminution of his . . . constitutional rights merely because he . . . is accused of providing material assistance to terrorists; in every case . . . there must be an individualized, fact-specific inquiry. 
Having performed that inquiry here, we conclude that there is clear and convincing evidence that Abd Hir poses a grave danger to the Philippines (if not to other communities in Southeast Asia) and that "no condition or combination of conditions will reasonably assure . . . the safety of . . . the community," 18 U.S.C. § 3142(e). We therefore affirm the district court's pretrial detention order.

You Decide 12.2
United States v. Lemos, 876 F. Supp. 58 (D.N.J. 1995).
Wolin, District Judge.
This matter is opened before the Court upon the appeal of defendant Raphael Hernandez from the Order of Magistrate Judge Hedges denying a reduction of his bail. The Court has heard the oral arguments of counsel and reviewed their written submissions. For the reasons given below, the Court will deny the appeal and affirm the decision of the Magistrate.
Defendant is one of 18 defendants charged with conspiracy to distribute cocaine. At defendant's initial appearance before Magistrate Judge Chesler, the government did not move for a detention hearing. Judge Chesler set defendant's bail at $25,000. Defendant moved for a reduction of bail to $2,500 before Judge Hedges. Defendant asserted as grounds his inability to raise $25,000.
Judge Hedges denied defendant's motion and he now brings this appeal. Defendant argues that the Bail Reform Act of 1984 entitles him to bail set at an amount he can afford. Therefore, it is argued that Judge Hedges' refusal to reduce defendant's bail to $2,500 was wrong as a matter of law.
The release or detention of a defendant pending trial is governed by the "carefully structured system" of 18 U.S.C. § 3142. United States v. Wong-Alvarez, 779 F.2d 583, 584 (11th Cir. 1985). Two subsections of that statute pertain to the situation at hand. Subsection (c) is titled "Release on conditions." If the judicial officer finds that defendant's release on his own recognizance or unsecured appearance bond will not reasonable assure defendant's appearance at trial or will endanger the safety of the community, the officer may order defendant's release subject to one or more conditions from a list provided, 18 U.S.C. § 3142(c). If, on the other hand, the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person and/or the safety of the community, the defendant may be detained without bail. 18 U.S.C. § 3142(e).
A condition precedent to detention without bail under subsection (e) is that a hearing be held as provided in subsection (f). Subsection (f) requires that the hearing be held immediately upon the defendant's first appearance before a judicial officer. The defendant has the opportunity to present and cross-examine witnesses. Under subsection (e), a presumption arises that no condition of release will reasonably assure the safety of the public where the defendant is charged with conspiracy to distribute cocaine (Id. § 3142(e) (1); cross-referencing section 3142(f) (1) (C)).
Here, it is conceded that bail was set pursuant to subsection (c). Subsection (e) was not invoked and no detention hearing was held. Defendant's argument relies on the penultimate sentence of that subsection which reads: "The judicial officer may not impose a financial condition that results in the pretrial detention of the person," Id. § 3142(c) (2). Accordingly, defendant argues subsection (c) entitles him to bail set at an amount he can afford to pay.
The representations of counsel and this Court's research indicate that this is a matter of first impression in this Circuit. The Court has surveyed the case law in other circuits and finds that the weight of authority and the better reasoned opinions are contrary to defendant's position.
Courts confronted with this situation have resorted to the legislative history. This history, really in the form of a commentary, provides a chart for courts navigating the complexities of section 3142.
[S]ection 3142(c) provides that a judicial officer may not impose a financial condition of release that results in the pretrial detention of the defendant. The purpose of this provision is to preclude the sub rosa use of money bond to detain dangerous defendants. However, its application does not necessarily require the release of a person who says he is unable to meet a financial condition of release which the judge has determined is the only form of conditional release that will assure the person's future appearance. Thus, for example, if a judicial officer determines that a $50,000 bond is the only means, short of detention, of assuring the appearance of a defendant who poses a serious risk of flight, and the defendant asserts that, despite the judicial officer's finding to the contrary, he cannot meet the bond . . . then it would appear that there is no available condition of release that will assure the defendant's appearance. This is the very finding which, under section 3142(e), is the basis for an order of detention, and therefore the judge may proceed with a detention hearing pursuant to section 3142(f) and order the defendant detained, if appropriate. The reasons for the judicial officer's conclusion that the bond was the only condition that could reasonably assure the appearance of the defendant, the judicial officer's finding that the amount of the bond was reasonable, and the fact that the defendant stated that he was unable to meet this condition, would be set out in the detention order as provided in section 3142(i) (1). The defendant could then appeal the resulting detention pursuant to section 3145.
Through his written submissions, oral arguments of counsel, and in his own affidavit, defendant has made numerous representations as to what he would attempt to show at an evidentiary hearing. Defendant maintains that he has had ties to a nearby community "for decades." He lives there with his wife and young daughter. He represents that he has no money or other resources with which to flee. As to the crime for which defendant is charged, he argues that he was a peripheral figure. Moreover, he maintains that the evidence against him is scanty. Finally, defendant represents that he has no record of prior arrest or conviction. 
The Court is willing to assume the truth of each of these statements of fact for the purposes of this motion. Unfortunately for the defendant, they do not outweigh the basic circumstances of his predicament. These circumstances require a finding that $25,000 bail is both a necessary and reasonable condition for his release. Of course, it is the government's burden to show that there is a risk of flight by a preponderance of the evidence. However, the facts cited below in favor of detention are either admitted or are not open to reasonable dispute. They amply support the finding here. As a result, no purpose would be served by an evidentiary hearing on the factual issues.
The Court begins with the seriousness of the charges against the defendant. If found guilty, he may be sentenced to a mandatory minimum of 10 years to life in prison. Defendant admits that his role as alleged is not so peripheral as to diminish the gravity of a guilty verdict. Lack of evidence against him is countered by the fact that the grand jury found probable cause to indict on such a serious offense. Moreover, the government claims to have intercepted telephone calls between defendant and other alleged conspirators. It is beyond the scope of this motion to assess defendant's claim that his voice was not the one intercepted. If authenticated, the intercepted conversations may provide powerful evidence of guilt, and so weigh against a reduced bail (defendant admits that the government's interpretation of the tapes is in good faith).
Second, it is admitted that defendant is an auto mechanic. The Court draws the inference from this fact that he has ready access to automobiles in which to flee. Thus, despite defendant's lack of funds, defendant is not prevented from fleeing by lack of opportunity. Furthermore, the facts alleged by the government suggest a large, well-funded conspiracy transporting substantial amounts of drugs. Where a defendant may be a member of such an organization, the Court cannot ignore the possibility that resources might be available to aid defendant's flight from justice, despite a dearth of personal funds.
Finally, the Court has too much experience with cases of this type, where defendants are exposed to substantial amounts of jail time, to place disparate dispositive weight on the presence of a family, or ties to the community.
The Court also notes that defendant admits that his sister owns a house but is unwilling to post it as security against his appearance at trial. A defendant admits that the sister has cut off all communication with him. The fact that a relative is unwilling to risk a major asset on defendant's return weighs in favor of finding a risk of flight. Defendant argues that the reluctance to put up the house may be based on circumstances entirely unrelated to defendant's trustworthiness. The Court agrees. However, as the record stands now, this factor cuts against defendant's application. As provided below, defendant will have the opportunity to present evidence of facts that would explain the sister's reluctance to cooperate, if indeed they exist.
Based on these facts, the Court finds that defendant's proposal for bail set in the amount of $2,500 is patently insufficient. The Court also finds that the other, nonmonetary conditions of release listed in section 3142(c) are also not adequate. Where charges are serious and a defendant may face a lifetime in prison, the requirement of financial security has a unique property. It provides something of real value to the defendant that the government can control in lieu of the defendant's person. The other conditions of release urged by defendant, such as house arrest, random phone checks, and the like, do not provide this type of concrete assurance that defendant will not run.
In light of the foregoing, the Court finds that $25,000 bond is both a reasonable and necessary condition of release. To serve its intended purpose, bail must be proportionate to the defendant's liability. Where there is a potential for substantial time in prison, the financial security must be correspondingly substantial. The Court finds that the amount required here is already low in comparison to that imposed in other cases of this type. Therefore the Court will affirm the decision of Judge Hedges. If defendant is unable to meet the financial requirement, then no available condition or combination of conditions will assure his appearance at trial.3
An additional point must be made. The Court has based its decision on the facts as discussed above. The Court is satisfied that the record is complete enough to support the decision reached here. However, in an excess of caution, and to comport with the spirit of the protections afforded defendants by the Bail Reform Act of 1984, the Court invites defendant to move for reconsideration of this decision if he can make a proffer of a factual showing not considered already. Of course, the government is free to make an opposing proffer in the event of a motion to reconsider. The government's opposition may call into question the facts assumed arguendo today, as well as any new facts proffered by defendant. The Court does not rule out the possibility that an evidentiary hearing may be necessary if dispositive facts are contested.
The Court has already made the legal finding that bail set higher than defendant can pay works as a de facto detention order, thus implicating the requirement of factual findings in section 3142(e). However, another procedural aspect of subsection (e) may also be implicated. As noted above, where an evidentiary hearing is held concerning a detention order, and the defendant is charged under the drug conspiracy statute, a rebuttable presumption arises that no condition or combination of conditions would adequately assure appearance for trial or the safety of the community, 18 U.S.C. § 3142(e).
The Court need not reach this issue of statutory construction at this point, because it is satisfied that, even without the presumption, the facts show that the $25,000 bail requirement should be upheld. If there is a motion to reconsider, the Court expects this issue to be fully briefed.

You Decide 12.3
Simpson v. Miler, 387 P.3d 1270 (Ariz. 2017).
1. Arizona's constitution and laws forbid bail for defendants accused of sexual conduct with a minor under age 15 when the proof is evident or the presumption great that the defendant committed the crime. Because that prohibition is not narrowly focused to protect public safety, we hold that it violates the Fourteenth Amendment's due process guarantee.
Article 2, section 22(A) of the Arizona Constitution's Declaration of Rights provides in part:
All persons charged with crime shall be bailable by sufficient sureties, except:
1. For capital offenses, sexual assault, sexual conduct with a minor under 15 years of age or molestation of a child under 15 years of age when the proof is evident or the presumption great.
P3. The crimes of sexual assault, sexual conduct with a minor under age 15, and molestation of a child under age 15 were added to capital offenses under section (A)(1) by the voters through Proposition 103 in 2002. The legislature codified the provisions of section (A)(1) in A.R.S. § 13-396(A)(2)-(4).
P4. The State charged Joe Paul Martinez with multiple sexual offenses, including sexual conduct with a minor under age 15, a Class 2 felony, and a dangerous crime against children. (After we granted review, Jason Donald Simpson accepted a plea agreement, making his case moot.) We therefore focus on Martinez's case. Martinez filed a petition to be released on bail. The trial court conducted an evidentiary hearing and concluded that the proof was evident or presumption great that Martinez committed sexual conduct with a minor under age 15, thus rendering him ineligible for bail. He has been held in custody without bail since April 2014.
https://advance.lexis.com/document/?pdmfid=1000516&crid=373c7750-045a-4d7b-9a4c-83af1c81038f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pddocid=urn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pdcontentcomponentid=4310&pdshepid=urn%3AcontentItem%3A5MTX-CWH1-DXC7-H20S-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=Ly_fk&earg=sr0&prid=bf0cb23c-70b1-48b7-bf0b-a0acc5636193; https://advance.lexis.com/document/?pdmfid=1000516&crid=373c7750-045a-4d7b-9a4c-83af1c81038f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pddocid=urn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pdcontentcomponentid=4310&pdshepid=urn%3AcontentItem%3A5MTX-CWH1-DXC7-H20S-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=Ly_fk&earg=sr0&prid=bf0cb23c-70b1-48b7-bf0b-a0acc5636193P9. "No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.". . . Thus, "[i]n our society liberty is the norm, and detention prior to trial . . . is the carefully limited exception." https://advance.lexis.com/document/?pdmfid=1000516&crid=373c7750-045a-4d7b-9a4c-83af1c81038f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pddocid=urn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pdcontentcomponentid=4310&pdshepid=urn%3AcontentItem%3A5MTX-CWH1-DXC7-H20S-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=Ly_fk&earg=sr0&prid=bf0cb23c-70b1-48b7-bf0b-a0acc5636193At the same time, the U.S. Supreme Court has "repeatedly held that the Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest."
https://advance.lexis.com/document/?pdmfid=1000516&crid=373c7750-045a-4d7b-9a4c-83af1c81038f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pddocid=urn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pdcontentcomponentid=4310&pdshepid=urn%3AcontentItem%3A5MTX-CWH1-DXC7-H20S-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=Ly_fk&earg=sr0&prid=bf0cb23c-70b1-48b7-bf0b-a0acc5636193P10. Freedom from pretrial detention absent extraordinary circumstances traces to the common law, where the general rule was against pretrial incarceration and in favor of bail, except for capital crimes--an exception grounded in the belief that defendants in such cases would flee to save their lives. https://advance.lexis.com/document/?pdmfid=1000516&crid=373c7750-045a-4d7b-9a4c-83af1c81038f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pddocid=urn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pdcontentcomponentid=4310&pdshepid=urn%3AcontentItem%3A5MTX-CWH1-DXC7-H20S-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=Ly_fk&earg=sr0&prid=bf0cb23c-70b1-48b7-bf0b-a0acc5636193. At common law, there were 200 capital crimes, which were reduced to twenty in the American colonies. https://advance.lexis.com/document/?pdmfid=1000516&crid=373c7750-045a-4d7b-9a4c-83af1c81038f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pddocid=urn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pdcontentcomponentid=4310&pdshepid=urn%3AcontentItem%3A5MTX-CWH1-DXC7-H20S-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=Ly_fk&earg=sr0&prid=bf0cb23c-70b1-48b7-bf0b-a0acc5636193 For capital defendants, bail could be denied "where the proof is evident or the presumption great" that the defendant committed the charged offense--language echoed in Article 2, Section 22(A) of the Arizona Constitution.
https://advance.lexis.com/document/?pdmfid=1000516&crid=373c7750-045a-4d7b-9a4c-83af1c81038f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pddocid=urn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pdcontentcomponentid=4310&pdshepid=urn%3AcontentItem%3A5MTX-CWH1-DXC7-H20S-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=Ly_fk&earg=sr0&prid=bf0cb23c-70b1-48b7-bf0b-a0acc5636193P11. The right to bail in non-capital cases is rooted in American and Arizona law:
https://advance.lexis.com/document/?pdmfid=1000516&crid=373c7750-045a-4d7b-9a4c-83af1c81038f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pddocid=urn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pdcontentcomponentid=4310&pdshepid=urn%3AcontentItem%3A5MTX-CWH1-DXC7-H20S-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=Ly_fk&earg=sr0&prid=bf0cb23c-70b1-48b7-bf0b-a0acc5636193, . . . federal law has unequivocally provided that a person arrested for a noncapital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense and serves to prevent the infliction of punishment prior to conviction.
https://advance.lexis.com/document/?pdmfid=1000516&crid=373c7750-045a-4d7b-9a4c-83af1c81038f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pddocid=urn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pdcontentcomponentid=4310&pdshepid=urn%3AcontentItem%3A5MTX-CWH1-DXC7-H20S-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=Ly_fk&earg=sr0&prid=bf0cb23c-70b1-48b7-bf0b-a0acc5636193The Eighth Amendment and Article 2, Section 15 of the Arizona Constitution also prohibit "excessive bail." And of course Article 2, Section 22(A) recognizes a right to bail subject to specified exceptions.
https://advance.lexis.com/document/?pdmfid=1000516&crid=373c7750-045a-4d7b-9a4c-83af1c81038f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pddocid=urn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pdcontentcomponentid=4310&pdshepid=urn%3AcontentItem%3A5MTX-CWH1-DXC7-H20S-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=Ly_fk&earg=sr0&prid=bf0cb23c-70b1-48b7-bf0b-a0acc5636193P12. However, the right to bail does not arise from the Eighth Amendment itself. The Eighth Amendment derives from the English Bill of Rights Act, which "has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail."
https://advance.lexis.com/document/?pdmfid=1000516&crid=373c7750-045a-4d7b-9a4c-83af1c81038f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pddocid=urn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pdcontentcomponentid=4310&pdshepid=urn%3AcontentItem%3A5MTX-CWH1-DXC7-H20S-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=Ly_fk&earg=sr0&prid=bf0cb23c-70b1-48b7-bf0b-a0acc5636193P13. Thus, the "Eighth has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country." 
https://advance.lexis.com/document/?pdmfid=1000516&crid=373c7750-045a-4d7b-9a4c-83af1c81038f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pddocid=urn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pdcontentcomponentid=4310&pdshepid=urn%3AcontentItem%3A5MTX-CWH1-DXC7-H20S-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=Ly_fk&earg=sr0&prid=bf0cb23c-70b1-48b7-bf0b-a0acc5636193P14. In Salerno, the Court upheld the Bail Reform Act of 1984 against a substantive due process challenge. The law allowed courts to deny bail for serious crimes of violence, offenses for which the sentence is life imprisonment or death, serious drug offenses, and certain repeat offenders. In addition to showing probable cause that the defendant committed the crime, the government was required to prove by clear and convincing evidence in a "full-blown adversary hearing" that "no conditions of release can reasonably assure the safety of the community or any person." https://advance.lexis.com/document/?pdmfid=1000516&crid=373c7750-045a-4d7b-9a4c-83af1c81038f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pddocid=urn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pdcontentcomponentid=4310&pdshepid=urn%3AcontentItem%3A5MTX-CWH1-DXC7-H20S-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=Ly_fk&earg=sr0&prid=bf0cb23c-70b1-48b7-bf0b-a0acc5636193"Given the legitimate and compelling regulatory purpose of the Act" to prevent future crime by defendants who have committed serious offenses, plus "the procedural protections it offers," the Court concluded that the law was not facially invalid under the Due Process Clause.
https://advance.lexis.com/document/?pdmfid=1000516&crid=373c7750-045a-4d7b-9a4c-83af1c81038f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pddocid=urn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pdcontentcomponentid=4310&pdshepid=urn%3AcontentItem%3A5MTX-CWH1-DXC7-H20S-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=Ly_fk&earg=sr0&prid=bf0cb23c-70b1-48b7-bf0b-a0acc5636193P15. The bail provisions enacted through Proposition 103 are similar in some respects to those upheld in Salerno. Like the Bail Reform Act, they are limited to specific serious crimes, they are intended to protect public safety by preventing defendants from committing future crimes, and they require a full-blown adversarial hearing. https://advance.lexis.com/document/?pdmfid=1000516&crid=373c7750-045a-4d7b-9a4c-83af1c81038f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pddocid=urn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pdcontentcomponentid=4310&pdshepid=urn%3AcontentItem%3A5MTX-CWH1-DXC7-H20S-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=Ly_fk&earg=sr0&prid=bf0cb23c-70b1-48b7-bf0b-a0acc5636193But unlike the hearing in Salerno https://advance.lexis.com/document/?pdmfid=1000516&crid=373c7750-045a-4d7b-9a4c-83af1c81038f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pddocid=urn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pdcontentcomponentid=4310&pdshepid=urn%3AcontentItem%3A5MTX-CWH1-DXC7-H20S-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=Ly_fk&earg=sr0&prid=bf0cb23c-70b1-48b7-bf0b-a0acc5636193 to determine that a defendant posed a danger to specific individuals or the community at large, the hearing at issue here determines only "if the proof is evident or the presumption great" that the person committed the offense charged. It does not consider whether the defendant poses a danger to others.
Historically, capital offense charges have been considered to present an inherent flight risk sufficient to justify bail denial. Likewise, certain crimes (or circumstances under which crimes are committed) may present such inherent risk of future dangerousness that bail might appropriately be denied by proof evident or presumption great that the defendant committed the crime. https://advance.lexis.com/document/?pdmfid=1000516&crid=373c7750-045a-4d7b-9a4c-83af1c81038f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pddocid=urn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pdcontentcomponentid=4310&pdshepid=urn%3AcontentItem%3A5MTX-CWH1-DXC7-H20S-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=Ly_fk&earg=sr0&prid=bf0cb23c-70b1-48b7-bf0b-a0acc5636193
P27. The crime charged against Martinez, however, is not in itself a proxy for dangerousness https://advance.lexis.com/document/?pdmfid=1000516&crid=373c7750-045a-4d7b-9a4c-83af1c81038f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pddocid=urn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pdcontentcomponentid=4310&pdshepid=urn%3AcontentItem%3A5MTX-CWH1-DXC7-H20S-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=Ly_fk&earg=sr0&prid=bf0cb23c-70b1-48b7-bf0b-a0acc5636193Section 13-1405(A)_ states, "A person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under 18 years of age." Section 13-1405(B) classifies felonies for sexual conduct with a minor under age 15 but does not alter the definition of the crime. The crime can be committed by a person of any age and may be consensual. Hence, as the court of appeals noted, https://advance.lexis.com/document/?pdmfid=1000516&crid=373c7750-045a-4d7b-9a4c-83af1c81038f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pddocid=urn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pdcontentcomponentid=4310&pdshepid=urn%3AcontentItem%3A5MTX-CWH1-DXC7-H20S-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=Ly_fk&earg=sr0&prid=bf0cb23c-70b1-48b7-bf0b-a0acc5636193, the offense sweeps in situations where teenagers engage in consensual sex. In such instances, evident proof or presumption great that the defendant committed the crime would suggest little or nothing about the defendant's danger to anyone. 
P29. Because Martinez is charged with a felony, he would be subject to Arizona law https://advance.lexis.com/document/?pdmfid=1000516&crid=373c7750-045a-4d7b-9a4c-83af1c81038f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pddocid=urn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pdcontentcomponentid=4310&pdshepid=urn%3AcontentItem%3A5MTX-CWH1-DXC7-H20S-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=Ly_fk&earg=sr0&prid=bf0cb23c-70b1-48b7-bf0b-a0acc5636193, which allows the court to deny bail on the state's motion if the court finds by clear and convincing evidence following a hearing that (1) "the person charged poses a substantial danger to another person or the community," (2) "no condition or combination of conditions of release may be imposed that will reasonably assure the safety of the other person or the community," and (3) "the proof is evident or the presumption great that the person committed the offense." This procedure is essentially the same as the one upheld in Salerno. Under this provision, the state may deploy the entire range of permissible conditions of release to ensure community safety, including GPS monitoring. The court may deny bail altogether for defendants for whom such conditions are inadequate, which may well include many or most defendants accused of sexual conduct with a minor under age 15.
P30. Under our reading of Salerno, the state may deny bail categorically for crimes that inherently demonstrate future dangerousness, when the proof is evident or presumption great that the defendant committed the crime. What it may not do, consistent with due process, is deny bail categorically for those accused of crimes that do not inherently predict future dangerousness.
https://advance.lexis.com/document/?pdmfid=1000516&crid=373c7750-045a-4d7b-9a4c-83af1c81038f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pddocid=urn%3AcontentItem%3A5MV4-P641-F048-G006-00000-00&pdcontentcomponentid=4310&pdshepid=urn%3AcontentItem%3A5MTX-CWH1-DXC7-H20S-00000-00&pdteaserkey=sr0&pditab=allpods&ecomp=Ly_fk&earg=sr0&prid=bf0cb23c-70b1-48b7-bf0b-a0acc5636193P31. The State urges that we should not hold the challenged provisions unconstitutional on their face because they may not be unconstitutional in all instances. The State, however, is confusing the constitutionality of detention in specific cases with the requirement that it be imposed in all cases. Sexual conduct with a minor is always a serious crime. In many but not all instances, its commission may indicate a threat of future dangerousness toward the victim or others. But because it is not inherently predictive of future dangerousness, detention requires a case-specific inquiry. Accordingly, we hold that the provisions of Article 2, Section 22(A) of the Arizona Constitution and A.R.S. 13-3961(A)(3), categorically denying bail for all persons charged with sexual conduct with a minor, are unconstitutional on their face. Defendants for whom future dangerousness is proved may still be held under A.R.S. § 13-3961(D). 
Lopez-Valenzuela v. Arpaio, 770 F.3d 772 (9th Cir. 2014).

Arizona law categorically forbids granting undocumented immigrants arrested for a wide range of felony offenses any form of bail or pretrial release, even if the particular arrestee is not a flight risk or dangerous. The Arizona legislature passed the legislation and referred it to the voters in May 2005. The voters approved Proposition 100 in November 2006.
The Proposition 100 bail determination is made at an initial appearance, which under Arizona law occurs within 24 hr of arrest. At the initial appearance, the court must deny bail, irrespective of whether the arrestee poses a flight risk or a danger to the community, “if the court finds (1) that the proof is evident or the presumption great that the person committed a serious offense, and (2) probable cause that the person entered or remained in the United States illegally.” An arrestee deemed ineligible for bail at the initial appearance may move for reexamination, and a hearing on such motion “shall be held on the record as soon as practicable but not later than seven days after filing of the motion.” The arrestee can dispute whether there is probable cause that he or she entered or remained in the United States illegally but may not refute Proposition 100's irrebuttable presumption that he or she poses an unmanageable flight risk. Once the court determines that there is probable cause to believe an arrestee has entered or remained in the United States unlawfully, the court has no discretion to release the arrestee under any circumstances, even if the court would find--and the state would concede--that the particular arrestee does not pose a flight risk or danger to the community. 
The plaintiffs contend that the Proposition 100 laws violate substantive due process. We agree. 
In this case, the defendants argue that the Proposition 100 laws satisfy substantive due process because they serve the state's substantial interest in ensuring that persons accused of crimes are available for trial. They argue that pretrial detention is a constitutionally acceptable means of furthering that interest. And they contend that Proposition 100's categorical denial of bail to undocumented immigrants, without any individualized determination of flight risk, is justified because undocumented immigrants in general pose an unmanageable flight risk. The district court accepted this rationale, concluding that “[t]he Arizona legislature and Arizona voters made the logical assumption that a person who is unlawfully present in the United States may not appear for trial.” We disagree. 
We do not question that Arizona has a compelling interest in ensuring that persons accused of serious crimes, including undocumented immigrants, are available for trial. We do, however, reject the proposition that the Proposition 100 laws are carefully limited, as Salerno requires. Salerno concluded that the challenged provisions of the Bail Reform Act satisfied the tailoring requirement of heightened scrutiny because they created a “narrowly focuse [d],” “carefully limited exception” to the “‘general rule’ of substantive due process that the government may not detain a person prior to a judgment of guilt in a criminal trial.” The Act thus satisfied the heightened scrutiny standard because Congress had chosen a “careful delineation of the circumstances under which detention will be permitted” rather than adopting a “scattershot attempt” at advancing the government's interest in preventing crime by arrestees. 
In holding the Act sufficiently tailored to satisfy heightened scrutiny, Salerno focused on three considerations. First, that the challenged provisions addressed “a particularly acute problem.” Second, that “[t]he Act operates only on individuals who have been arrested for a specific category of extremely serious offenses,” where Congress had “specifically found that these individuals are far more likely to be responsible for dangerous acts in the community after arrest.” Third, that the Act required “a full-blown adversary hearing” at which the government was required to “convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person.” Id. None of those considerations exist here. 
First, the record does not support the argument that the Proposition 100 laws addressed “a particularly acute problem.” Salerno. The Bail Reform Act at issue in Salerno addressed an “alarming problem of crimes committed by persons on release.” The record in Salerno contained empirical evidence establishing that the legislation addressed “a pressing societal problem,” 1), and the law operated only on individuals “Congress specifically found . . . are far more likely to be responsible for dangerous acts in the community after arrest.” This evidence figured prominently in the Court's decision to uphold the Bail Reform Act. 
Here, there is no evidence that the Proposition 100 laws were adopted to address a particularly acute problem. . . . [T]he record contains no findings, studies, statistics, or other evidence (whether or not part of the legislative record) showing that undocumented immigrants as a group pose either an unmanageable flight risk or a significantly greater flight risk than lawful residents. The absence of such evidence both distinguishes this case from Salerno and supports the conclusion that Proposition 100 laws are not carefully limited, as they must be to survive heightened scrutiny under Salerno. 
https://casetext.com/case/lopez-valenzuela-v-arpaio - idm140343192896320In arguing that Proposition 100 addressed a particularly acute problem, Judge Tallman focuses on two factors: (1) statements made in support of Proposition 100 by then-Maricopa County Attorney Andrew Thomas and (2) that Arizona voters approved the Proposition by a wide margin. Neither argument is persuasive. As part of the 2006 campaign in favor of Proposition 100, County Attorney Thomas asserted that “[f]ar too many illegal immigrants accused of serious crimes have jumped bail and slipped across the border in order to avoid justice in an Arizona courtroom.” He also told Lou Dobbs Tonight that Arizona had a “tremendous problem with illegal immigrants coming into the state, committing serious crimes, and then absconding, and not facing trial for their crimes, either because they jump bail after they are out, or because, when they are let out on bail, the federal government deports them.” The record does not substantiate Thomas's claims, however, and he is not a credible source. He was disbarred in 2012 for using his office to destroy political enemies, filing malicious and unfounded criminal charges, committing perjury and engaging in a host of other crimes, and the state bar committee found that he had “outrageously exploited power,” “flagrantly fostered fear,” “disgracefully misused the law,” and “dishonored, desecrated, and defiled” the public trust. That Arizona voters approved Proposition 100 by a large margin also does not show that the legislation addressed a particularly acute problem. At most, the vote shows that voters perceived a problem, not that one actually existed. Moreover, as discussed below in Part III.B.2 and in Judge Nguyen's concurrence, there is substantial evidence that Arizona voters approved Proposition 100 at least in part for reasons other than a perceived problem of flight risk--to punish undocumented immigrants for perceived immigration and criminal violations. 
Contrary to Judge Tallman's reading of our opinion, we neither “demand” findings, studies, statistics, or other evidence showing that undocumented immigrants pose an unmanageable flight risk nor impose an “empirical data requirement” on the defendants. We do not hold Proposition 100 “void . . . for want of evidence,” but rather that the Proposition 100 laws are not “carefully limited” under Salerno. Whether Proposition 100 “narrowly focuses on a particularly acute problem” is part of that inquiry. Thus, although we do not require the defendants to produce evidence or point to legislative findings, the absence of any credible showing that the Proposition 100 laws addressed a particularly acute problem is one factor quite relevant to demonstrating that the laws are not carefully limited. 

Second, the Proposition 100 laws are not limited to “a specific category of extremely serious offenses.” Instead, they encompass an exceedingly broad range of offenses, including not only serious offenses but also relatively minor ones, such as unlawful copying of a sound recording, altering a lottery ticket with intent to defraud, tampering with a computer with the intent to defraud and theft of property worth between $3,000 and $4,000. 
Third, the Proposition 100 is not narrowly focused on those arrestees who actually pose the greatest flight risk. Demonstrably, many undocumented immigrants are not unmanageable flight risks. The record includes examples of undocumented immigrants who were arrested before Proposition 100, granted bail or released on their own recognizance, and appeared at their court dates and trials. Yet even these individuals were needlessly remanded into state custody following Proposition 100's passage. 
In Hernandez v. Lynch, for example, police found a social security card and a resident alien card in Hernandez's wallet after arresting him for possessing an open container of alcohol within the passenger compartment of a motor vehicle (see id. at 1265). Hernandez admitted that the cards were forged, that he had purchased them for $5,000, and that he had procured them in order to work and buy food. The state charged him with two counts of knowingly possessing forged instruments with intent to defraud, a Class 4 felony. He was released on his own recognizance after an initial appearance hearing. When he appeared voluntarily for his preliminary hearing, however, he was automatically denied bail by operation of Proposition 100 (see id). He ultimately pled guilty to solicitation to commit forgery, a Class 6 felony, and was placed on probation for 1 year (see id). Proposition 100 categorically eliminates any opportunity for persons such as Mr. Hernandez to show that, notwithstanding their immigration status, they do not pose a flight risk. Indeed, it mandates pretrial detention even when the state concedes that the arrestee does not pose a flight risk.https://casetext.com/case/lopez-valenzuela-v-arpaio - idm140343194561344 
Proposition 100, for example, covers foreign citizens who have no legal right to return to their home countries. Conversely, Proposition 100 excludes from coverage individuals who would seem more likely to flee--such as foreign citizens who are in this country lawfully as tourists and persons having dual citizenship.
Whether a categorical denial of bail for noncapital offenses could ever withstand heightened scrutiny is an open question (see United States v. Scott, 450 F.3d 863, 874 (9th Cir.2006); “Neither Salerno nor any other case authorizes detaining someone in jail while awaiting trial, or the imposition of special bail conditions, based merely on the fact of arrest for a particular crime. To the contrary, Salerno . . . upheld the constitutionality of a bail system where pretrial defendants could be detained only if the need to detain them was demonstrated on an individualized basis”). Lawmakers may rely on “reasonable presumptions and generic rules.” 
There is no evidence that undocumented status correlates closely with unmanageable flight risk. The defendants speculate that undocumented immigrants pose a greater flight risk than lawful residents because they supposedly lack strong ties to the community and have a “home” in another country to which they can flee. But this assumption ignores those undocumented immigrants who do have strong ties to their community or do not have a home abroad. As our own court's immigration docket reveals, many undocumented immigrants were brought here as young children and have no contacts or roots in another country. Many have “children born in the United States” and “long ties to the community.” A recent study of undocumented immigrants in California, published by the Center for the Study of Immigrant Integration at the University of Southern California, found that “contrary to popular misperceptions,” undocumented immigrants are “a fairly settled population.” The researchers found that “nearly 50 percent of undocumented immigrants have been in the country for more than 10 years, and over 17 percent of household heads are homeowners.” 
Moreover, although the defendants consistently refer to undocumented immigrant arrestees as “flight risks,” the pertinent inquiry is whether the arrestee is an unmanageable flight risk. There are a variety of methods to manage flight risk, such as bond requirements, monitoring and reporting requirements. Proposition 100 completely ignores these tools for managing flight risk, instead mandating incarceration in every case. 
Before Proposition 100 passed, Arizona had an extensive bail scheme designed to help ensure that arrestees appear for trial. These procedures already required judges to consider factors such as “[t]he accused's family ties, employment, financial resources,” “length of residence in the community,” “[w]hether the accused has entered or remained in the United States illegally,” and “[w]hether the accused's residence is in this state, in another state or outside the United States.” There is no evidence that this set of regulations, addressing flight risk on a case-by-case basis, was inadequate to protect the state's compelling interest in ensuring undocumented immigrant arrestees' appearance at trial. Furthermore, Arizona added the last two of these considerations--“[w]hether the accused has entered or remained in the United States illegally” and “[w]hether the accused's residence is in this state, in another state or outside the United States,”--only in June 2006, a few months before Proposition 100 was submitted to the state's voters. Arizona gave these provisions no chance to succeed before resorting to mandatory detention in every case. Thus, although Judge Tallman's dissent asserts that individualized assessments of flight risk have been tried and failed (Dissent at 798, 803, 804), neither assertion is borne out by the record. 
The Proposition 100 laws also do not reflect a “widely shared legislative judgment.” The federal criminal justice system does not categorically deny bail to undocumented immigrant arrestees. Most states that categorically prohibit bail at all do so only for capital offenses https://casetext.com/case/lopez-valenzuela-v-arpaio - idm140343200863424or for other very serious crimes. https://casetext.com/case/lopez-valenzuela-v-arpaio - idm140343200862784Other than Arizona, only Missouri singles out undocumented immigrants for the categorical denial of bail.https://casetext.com/case/lopez-valenzuela-v-arpaio - idm140343200861120 The American Bar Association's Standards for Criminal Justice do not make any offenses categorically nonbailable. They provide that “only defendants charged with dangerous or violent crimes or, in certain cases, with other serious crimes, may even be considered for detention,” and they state that “[a] decision to detain should be made only upon a clear showing of evidence that the defendant poses a danger to public safety or a risk of non-appearance that requires secure detention.” 
To conclude, Proposition 100 categorically denies bail or other pretrial release and thus requires pretrial detention for every undocumented immigrant charged with any of a broad range of felonies, regardless of the seriousness of the offense or the individual circumstances of the arrestee, including the arrestee's strong ties to and deep roots in the community. The defendants maintain that this unusual, sweeping pretrial detention statute, directed solely at undocumented immigrants, comports with substantive due process. It does not. The Supreme Court has made clear that “[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” The “narrowly focuse[d]” pretrial release statute upheld in Salerno provided a “careful delineation of the circumstances under which detention will be permitted.” In contrast, the Proposition 100 laws do not address an established “particularly acute problem,” are not limited to “a specific category of extremely serious offenses,” and do not afford the individualized determination of flight risk or dangerousness that Salerno deemed essential. These laws represent a “scattershot attempt” at addressing flight risk and are not narrowly tailored to serve a compelling interest (Id). In addition, and for the same reasons, the challenged laws are excessive in relation to the state's legitimate interest in assuring arrestees' presence for trial. They therefore impermissibly impose punishment before an adjudication of guilt. For these reasons, we hold that the Proposition 100 laws violate the substantive component of the Due Process Clause of the Fourteenth Amendment on these two independent grounds. Because we hold that the laws facially violate substantive due process, we do not reach the plaintiffs' procedural due process, Eighth Amendment, Sixth Amendment, and preemption claims.https://casetext.com/case/lopez-valenzuela-v-arpaio - idm140343194459712. The judgment of the district court is reversed. 
Reversed and Remanded 
Tallman, Circuit Judge, with whom Circuit Judge O'Scannlain joins, dissenting: 
Today's holding leaves Arizona nowhere to turn. For years before Arizona passed Proposition 100, it tried to assess flight risk based on family ties, employment, and length of residency in the community on an individualized basis. Immigration status was assuredly a critical consideration in this assessment, even well before Proposition 100's enactment. The majority ignores reality to suggest otherwise. Yet despite these individualized flight-risk assessments, the Maricopa County Attorney explained in 2006 that Arizona still had a “tremendous problem with illegal immigrants coming into the state, committing serious crimes, and then absconding, and not facing trial for their crimes” (Lou Dobbs Tonight; CNN television broadcast October 13, 2006). Faced with this continuing problem, Arizona took a logical next step by denying bail to illegal aliens who commit serious felony offenses. Because Proposition 100 is not excessive in relation to Arizona's compelling regulatory interest in ensuring that illegal aliens who commit serious felony offenses stand trial, I respectfully dissent. 
First, by ignoring all evidence to the contrary, the majority concludes that “unmanageable flight risk posed by undocumented immigrants . . . has not been shown to exist” (Maj. Op. at 791). Tell that to the Maricopa County Attorney who, from his vantage on the front line just a month before the Proposition 100 vote, thought flight risk among illegal aliens in Arizona was “a tremendous problem.” https://casetext.com/case/lopez-valenzuela-v-arpaio - idm140343201156432 The majority insists that the record does not substantiate this claim, but the claim--by the Maricopa County Attorney no less--is part of the record.https://casetext.com/case/lopez-valenzuela-v-arpaio - idm140343201155136 It is one thing for my colleagues to declare that Proposition 100 is an excessive measure to address Arizona's flight problem; reasonable minds can disagree. It is quite another for an Article III court to tell Arizona, based on this record and considering the majority vote of the Arizona legislature and electorate in favor of Proposition 100, that its perceived problem is not really a problem. Even the Arizona courts have concluded that “Proposition 100 reflects that [the Arizona] electorate and Legislature perceived pretrial detention as a potential solution to a pressing societal problem.” They are the ones who have to live with it. 
Second, the majority takes issue with Proposition 100 not being a widely shared legislative judgment because few states categorically deny bail for illegal aliens. While factually true, perspective here is critical. As an initial matter, novelty alone does not render a law unconstitutional. Moreover, we cannot judge this case with blinders on. Arizona faces unique challenges as one of the four states bordering Mexico. Indeed, “Arizona bears many of the consequences of unlawful immigration . . . . Unauthorized aliens who remain in the State comprise, by one estimate, almost six percent of the population.” “[I]n the State's most populous county, these aliens are reported to be responsible for a disproportionate share of serious crime” (Id). I find it hardly surprising that other states have not enacted their own Proposition 100 laws. Kansas, for example, may have its share of illegal immigrants, but certainly not to the extent of Arizona. More importantly, only four states--Arizona among them--provide serious felony offenders with such a quick and convenient route into Mexico.https://casetext.com/case/lopez-valenzuela-v-arpaio - idm140343198007968 Thus, while Proposition 100 may be relatively unique among the 50 states, that's nothing more than a reflection of Arizona's unique flight risk problem and geography. 
The majority's argument also ignores a host of practical concerns facing border states like Arizona, such as the time and expense in trying to apprehend felony fugitives in Mexico and elsewhere, and the cumbersome and lengthy extradition process required to bring fugitives back to Arizona to face justice. 
Third, the majority mistakenly demands “findings, studies, statistics or other evidence . . . showing that undocumented immigrants as a group pose either an unmanageable flight risk or a significantly greater flight risk than lawful residents” (Maj. Op. at 783). Arizona is not required to support its legislative judgment with empirical studies. This is a slippery slope on which the majority is quick to tread, and one which threatens the delicate balance between the judiciary and the people we serve. 
Turning to the second step, we all agree that “Arizona has a compelling interest in ensuring that persons accused of serious crimes, including undocumented immigrants, are available for trial.” But the majority concludes that Proposition 100 is excessive in relation to its purpose. It isn't. 
Proposition 100, like the Bail Reform Act, “carefully limits the circumstances under which detention may be sought.” Two threshold requirements must be met before an individual can be denied bail pursuant to Proposition 100. First, the court must find, at the arrestee's initial appearance, that there is probable cause to believe that the arrestee has entered or remained in the United States illegally. But more than that, the court must also find that the proof is evident or the presumption great that the individual committed a “serious felony offense.”
An arrestee is also able to challenge this initial determination by “mov[ing] for reexamination of the conditions of release” (Ariz. R. Crim. P. 7.4(b)). Upon such a motion--and whether or not the arrestee alleges new facts--a hearing must be held on the record “as soon as practicable but not later than 7 days after filing of the motion” (Id). These procedural and substantive protections make Proposition 100 far from a “scattershot attempt to incapacitate those who are merely suspected” of being in the country illegally or of committing a serious felony offense. For years, Arizona tried making individualized flight-risk determinations for aliens alleged to have committed serious felony offenses. That system didn't solve Arizona's particularly acute flight-risk problem. Its voters then overwhelmingly approved Proposition 100 as a measured response in light of the state's prior efforts. How can that be excessive? 

You Decide 12.4
State v. Davis 872 So.2d 250 (2004).
The facts pertinent to the issue we decide today are as follows. Davis, an African American male who was 22 at the time, was accused of stabbing to death Joyce Ezell, a 73-year-old White woman, in the foyer of Ezell's house in Lake Wales on March 18, 1987. Davis was arrested 2 days after the murder. Two other attorneys preceded trial counsel in representing Davis on these charges. In preparing his defense, Davis's first lawyer visited the home of Davis's family, where a relative asked him about Davis's seizures, a condition of which the attorney had been unaware. This discovery led that attorney to gather additional information and then successfully move to have Davis declared incompetent to stand trial in September 1988. The first attorney withdrew, and a second attorney represented Davis from September 1988 to June 1989, until he also withdrew. Davis was declared competent, and a third attorney, who is the subject of the ineffective assistance claim herein, then assumed representation of Davis. The third attorney, whom we refer to herein as trial counsel, represented Davis in his January 1990 murder trial.
Trial counsel testified in the postconviction proceedings that in presenting his defense in this case, he favored a "minimalist," "less is more" approach. Accordingly, trial counsel declined to present the testimony of two African American witnesses whose testimony might have implicated others in the murder, consistent with Davis's defense that he was present during or just after a murder that was committed by someone else. Trial counsel also elected not to call friends and family members who would have contradicted testimony by an acquaintance of Davis that on the day after the murder, Davis had bloody scratches around his eyes. Additionally, as found by the trial court in its order granting Davis a new penalty phase, trial counsel "did not obtain Davis's school records, never visited Davis's family or neighborhood, [and] did not talk to his family members, coaches or friends." These considerations serve as a backdrop for trial counsel's comments while questioning an apparently all-White panel of potential jurors during voir dire. Using what he described during the rule 3.850 hearing as a hand-drawn chart with a thermometer to discuss how the jurors' "feelings might grow in intensity possibly towards black people," trial counsel stated:
Now, Henry Davis is my client and he's a Black man, and he's charged with killing Joyce Ezell who was a White lady, lived in Lake Wales. Now, all of us who are talking now, myself and all of y'all, are all White.
There is something about myself that I'd like to tell you, and then I'd like to ask you a question. Sometimes, I just don't like Black people. Sometimes, Black people make me mad just because they're Black. And, you know, I don't like that about myself. It makes me feel ashamed. But, you know, sometimes if this was a thermometer of my feelings, and if you took it all the way up to the top, and this was one, this was five, all the way up here was 10, you know, my feelings would sometimes start to boil and I get so mad toward Black people because they're Black that it might go all the way up to the top of that scale. And, you know, I'm not proud of that and it embarrasses me to tell y'all that, to say it in public.
In follow-up questioning of individual jurors--none of whom stated that they shared counsel's sentiments--trial counsel stated, "Well, I'm a White Southerner, and I've got those feelings in me that I--maybe I grew up with them." During his penalty-phase closing argument, trial counsel reminded the jurors of his comments during jury selection:
Henry is a Black man, Mrs. Ezell was a White woman. We are all of us White. I'm a White Southerner. You have told me and the court that you would disregard and not base your verdict on the question of race. I will believe you, I will trust you on that. It is hard for me to talk to you, my friends and neighbors, about something like this. I will not believe that race will be a factor in your decision, but I will ask you to be especially vigilant, because being a White Southerner, I know where I come from. And I told you a little bit when we were questioning you as to potential jurors about some feelings that I have and maybe very deep down y'all have them too.
During the rule 3.850 hearing, trial counsel testified that he decided on the comments excerpted above as a way of getting jurors to "drop the mask" and acknowledge hidden feelings about race. He testified that his comments constituted "new ground" for him, but he felt the approach was warranted because this was an "extreme case, a very bad case on the facts." Trial counsel testified that he discussed the strategy with Davis, who told him that Blacks sometimes feel the same way about Whites. The jury found Davis guilty as charged of first-degree murder, robbery with a deadly weapon, and burglary with a battery, and recommended death for the murder by a vote of 12 to 0. The trial court imposed the death penalty for the murder, finding four aggravating circumstances and insufficient mitigation to justify a sentence other than death. In his motion for postconviction relief, Davis asserted multiple grounds for a new trial, including trial counsel's comments during voir dire, the failure to call witnesses whose testimony would have tended to implicate others in the murder, and the failure to impeach a witness who testified to scratches on Davis's face. The trial court denied relief on all these grounds. The trial court determined that the remarks on racial animus made by counsel during voir dire were a legitimate tactical approach by experienced counsel and that Davis approved the tactic. The court concluded that "nothing in the record supports Davis' claim that his attorney is a racist and as a result failed to properly represent him." 
Claims of ineffective assistance of trial counsel require a showing of deficient performance and prejudice. First, a defendant must establish conduct on the part of counsel that is outside the broad range of competent performance under prevailing professional standards. Second, the deficiency must be shown to have so affected the fairness and reliability of the proceedings that confidence in the outcome is undermined. The two prongs are related, in that "the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." In reviewing a trial court's ruling on an ineffective assistance claim, this Court defers to findings of fact based on competent, substantial evidence, and independently reviews deficiency and prejudice as mixed questions of law and fact.
Applying these standards and principles, we conclude that the expressions of racial animus voiced by trial counsel during voir dire so seriously affected the fairness and reliability of the proceedings that our confidence in the jury's verdicts of guilt is undermined. We cannot agree with the trial court's conclusion that an explicit expression of racial prejudice can be considered a legitimate tactical approach. Whether or not counsel is in fact a racist, his expressions of prejudice against African Americans cannot be tolerated.
Initially, we strongly reaffirm the principle that racial prejudice has no acceptable place in our justice system. 
[T]he founding principle upon which this nation was established is that all persons were initially created equal and are entitled to have their individual human dignity respected. This guarantee of equal treatment has been carried forward in explicit provisions of our federal and state constitutions. It is not by chance that the words "Equal Justice Under Law" have been placed for all to see above the entrance to this nation's highest court. If we are to expect our citizens to treat one another with equal dignity and respect, the justice system must serve as the great example of maintaining that standard. And while we have been far from perfect in implementing this founding principle, our initial declaration and our imperfect struggle and efforts have served as a beacon for people around the world.
In Powell, we considered whether to authorize an inquiry to ascertain whether racist jokes and statements were made by jurors in a trial involving a suit by the plaintiffs, who were Black citizens of Jamaica, against an insurance company for claims arising from an automobile accident. We authorized the inquiry and ruled that if the trial court determined that the statements were in fact made, the comments warranted a new trial. Rejecting any notion that this was not a proper concern within the purview of the justice system, we stated:
The issue of racial, ethnic, and religious bias in the courts is not simply a matter of "political correctness" to be brushed aside by a thick-skinned judiciary . . . .
Despite long-standing and continual efforts, both by legislative enactments and by judicial decisions to purge our society of the scourge of racial and religious prejudice, both racism and anti-Semitism remain ugly malignancies sapping the strength of our body politic. The judiciary, as an institution given a constitutional mandate to ensure equality and fairness in the affairs of our country when called on to act in litigated cases, must remain ever vigilant in its responsibility. The obvious difficulty with prejudice in a judicial context is that it prevents the impartial decision-making that both the Sixth Amendment and fundamental fair play require. A racially or religiously biased individual harbors certain negative stereotypes which, despite his protestations to the contrary, may well prevent him or her from making decisions based solely on the facts and law that our jury system requires. The U.S. Supreme Court has observed that it has been compelled to "engage[] in 'unceasing efforts' to eradicate racial prejudice from our criminal justice system."
The necessity of vigilance against the influence of racial prejudice is particularly acute when the justice system serves as the mechanism by which a litigant is required to forfeit his or her very life. As the U.S. Supreme Court first stated more than 25 years ago, "death is different in kind from any other punishment imposed under our system of criminal justice." We have acknowledged that "death is different" in recognizing the need for effective counsel in capital proceedings "from the perspective of both the sovereign state and the defending citizen." In Robinson v. State, 520 So. 2d 1, 7 (Fla. 1988), this Court emphasized that the "risk of racial prejudice infecting a criminal trial takes on greater significance in the context of a capital sentencing proceeding." Accordingly, we vacated a death sentence because of the prosecutor's suggestion during cross-examination of a defense expert that the Black defendant preyed on White women.
In light of the repeated admonitions by the U.S. Supreme Court, this Court, and others against allowing racial prejudice to play any part in the determination of guilt or imposition of sentence in a criminal case, we are greatly disturbed by trial counsel's blatant acknowledgment to the jury, in defending an African American defendant accused of an interracial crime, of his negative feelings toward "Black people just because they're Black." We condemn these statements not because counsel chose to discuss the topic of race in voir dire, which is permissible, but because he did so in a manner that fatally compromised his ability to effectively represent Davis in his capital trial and created a reasonable probability of unreliable convictions.
In this case, . . . the defendant was Black and the victim White, and there was no apparent racial motivation for the crime. Instead, the evidence pointed to a theft as the motive for the murder. The victim's silver serving pieces, her purse and wallet, a pearl-handled pistol, some rare coins, jewelry, a ring belonging to her late husband, and her car were taken from her home. The issue is not that Davis's trial counsel chose to question jurors on their feelings about race but rather what counsel stated about his own racial prejudices. The manner in which counsel approached the subject unnecessarily tended either to alienate jurors who did not share his animus against African Americans "just because they're Black" or to legitimize racial prejudice without accomplishing counsel's stated objective of bringing latent bias out into the open. We conclude that counsel's admission of his own racial prejudice constituted deficient performance satisfying the first prong of an ineffective assistance claim.
With respect to both the first and second prongs of the ineffective assistance of counsel claim, there is also evidence in this record to suggest that counsel's expressions of racial bias during voir dire affected his performance in both the guilt and penalty phases of Davis's trial, creating an unacceptable risk that prejudice clouded counsel's judgment and diminished the force of his advocacy.
In the guilt phase, trial counsel rested without presenting a case. While not presenting a defense case in a first-degree murder prosecution is not inherently deficient performance, in making this decision counsel opted not to present two African American witnesses whose testimony would have implicated others in the murder. Counsel testified that he declined to present the testimony of one of the witnesses, who would have placed two other men at the murder scene with Davis, because he considered a neighbor of the victim who saw Davis approach the victim's house alone to be more credible. The neighbor was White. Asked whether it would have been beneficial nonetheless to place others who may have actually committed the murder at the victim's house with Davis, trial counsel testified during the rule 3.850 hearing that "for some reason it was my decision then that this was not testimony that was going to help me." A second African American witness would have testified that he participated in helping one of the other men identified by the first witness as being at the victim's house in disposing of bloody clothing at around the time of the murder. Trial counsel testified during the rule 3.850 hearing that he declined to present this witness because he "couldn't get any corroboration or anything that I thought I could use at trial."
Both witnesses would have supported the defense theory that, although Davis may have been present during or immediately after the killing, he did not commit the murder. We view these decisions by trial counsel as additional indications that his judgment may have been affected by improper considerations, consistent with the views he expressed during voir dire.
The grounds on which the trial court found counsel ineffective as to the new penalty phase also support our conclusion that improper racial considerations compromised counsel's representation. We note that in its order granting Davis a new penalty phase, the trial court found that counsel admitted that he did not obtain Davis' school records, never visited Davis' family or neighborhood, did not talk to his family members, coaches, or friends.
[Trial counsel] could, through reasonable diligence, have discovered those mitigation witnesses Davis presented at the evidentiary hearing. Counsel failed to present this additional mitigation evidence at trial . . . .
. . . Every single bit of mitigation offered may have had a substantial effect on the jury's recommendation of the trial judge's sentence. [Trial counsel] failed to properly investigate and present this available mitigation evidence. There is simply no explanation why trial counsel would not have explored this type of standard mitigation testimony by visiting Davis's nearby family or neighborhood.
We also note that trial counsel reprised his acknowledgments of racial prejudice in his closing argument during the penalty phase. As asserted by Davis in the postconviction proceedings, these remarks may either have been perceived as an insult by the jurors, none of whom had acknowledged during voir dire that they shared counsel's bias, or implicitly validated any latent racial bias on the part of the jurors.
For all these reasons, counsel's overt admissions of racial prejudice compromised his representation to such an extent that it has undermined our confidence in the guilty verdicts. Thus, we conclude that Davis has also met the standard for prejudice, in that because of counsel's deficient performance, "the trial cannot be relied on as having produced a just result." Accordingly, we reverse the trial court's order denying Davis's motion to vacate his convictions and remand for a new trial.

Chapter 13: The Courtroom: The Pretrial and Trial Process
You Decide 13.1
People v. Jimenez, 672 N.E.2d 914 (Ill.App. 1996).
Around 6 p.m. on February 3, 1993, Larry Tueffel and Eric Morro encountered Victor Romo and another boy on a city sidewalk. Several witnesses on the street saw the boy with Romo kill Morro by shooting him point-blank in the chest. One of the witnesses called police about 6 hr later and named defendant as the shooter. Based on the telephone call, police arrested defendant before dawn on February 4, 1993. Three witnesses viewed a lineup at the police station. Two identified defendant as the shooter; the third witness said both defendant and another person in the lineup looked like the shooter. Prior to trial defendant moved to preclude reference to gang affiliation. The court denied the motion, finding that the prosecution had sufficient evidence that gang affiliation provided the motive for the murder. Defendant then sought to have the court ask each member of the venire on voir dire:

"Would the fact that an accused is allegedly a member of a street gang, prevent you from giving him a fair and impartial trial?"

Defendant also requested two other questions, one relating to handguns and the other relating to publicity concerning gang-related murders. The court said, "We are just going to be here for days going into these things." The court refused all three questions, and it asked the venire no questions remotely suggesting that gang evidence would be part of the case.
At trial Shawn Cosmen testified that around 3:30 p.m. on February 3, 1993, he and Morro saw defendant yelling toward a school bus and making hand signs indicating his affiliation with the Royals gang. Morro told defendant to "take his gang banging stuff somewhere else" because kids were nearby. Defendant answered: "You'll get your ass beat . . . . You'll get yours." Tueffel testified that when he and Morro encountered defendant and Romo around 6 p.m. that day, Romo accused Morro of owing Leo some money. Morro said it was none of Romo's business. Romo and defendant walked a few steps away, then returned. Romo pushed Morro against a wall. Morro swung his fist, then defendant shot Morro. After shooting Morro, defendant threw up the hand sign for the Royals gang. Tueffel admitted that the first time he spoke with police he said Frankie, not defendant, shot Morro. He also gave a description that did not fit defendant. Tueffel explained that he was also a member of the Royals, and he feared retaliation if he identified defendant. The officer who took Tueffel's initial description of the shooter testified that the description was vague and Tueffel acted evasively, changing some parts of the description as he spoke. The prosecutor asked for the officer's opinion "as to the truthfulness" of Tueffel's initial description of the shooter. The court allowed [***4] the officer to answer, over defendant's objection, that he did not believe Tueffel had told him the truth about what he saw.
Defendant's sister, Angela Jimenez, and three friends of his family testified that they saw defendant at a family party from 4:30 p.m. until 11 p.m. on February 3, 1993.
Victor Romo testified that he and Carlos Torres met Morro and Tueffel around 6 p.m. on February 3. Torres argued with Morro about money. When Morro started to swing at Torres, Romo ran away. [*911] Romo heard the gunshot seconds later. He admitted that he had been found delinquent due to his role in the murder.
Defendant sought to present Ezequiel Romo to testify to a conversation he had with Torres. The trial court disallowed the evidence as hearsay. Defendant said in an offer of proof that Ezequiel Romo would testify that he spoke with Torres on February 10, 1993, and Torres admitted that he shot and killed Morro.
The court also granted the prosecutor's request to bar the testimony of Joe Paupau. Defense counsel said that Paupau would testify that he and a leader of the Royals, Taeksu Chi, attended a party at defendant's home in January 1993. Paupau and Taeksu got into a fight and Paupau knocked out some of Taeksu's teeth. Defense counsel suggested that Taeksu wanted to get back at defendant because the fight occurred in defendant's home. The trial court found the theory too far-fetched.
The jury found defendant guilty of first-degree murder. After hearing substantial evidence of prior criminal acts in aggravation, the trial court sentenced defendant to a term of 50 years in the Department of Corrections.
Defendant argues on appeal that the trial court committed reversible error by refusing to ask prospective jurors whether defendant's gang affiliation would prevent them from giving defendant a fair trial. The trial court has discretion to determine the scope and extent of voir dire. "However, a failure to permit pertinent inquiries to enable a party to ascertain whether the minds of the jurors are free from bias or prejudice which would constitute a basis of challenge for cause, or which would enable him to exercise his right of peremptory challenge intelligently, may constitute reversible error." 
The trial court "must exercise . . . discretion so as not to block the reasonable exploration of germane factors that might expose a basis for challenge, whether for cause or peremptory." "The standard for evaluating a court's exercise of discretion during voir dire is whether the questions posed and the procedures employed created a reasonable assurance that prejudice would be discovered if present." In Oliver, the trial court asked the venire collectively if any members had been victims of any of a list of crimes, Oliver, 265 Ill. App. 3d at 549. The court then asked collectively whether the experiences would prevent the venire members from remaining impartial. Most jurors did not respond. Defendant objected that he needed to know which crimes affected each member of the venire, and he needed to watch individual responses concerning prejudice. This court held that the "unduly restrictive [questioning] made it impossible to determine whether defendant received a fair and impartial jury. . . . The conduct of jury selection proceedings in this case did not ensure that defendant would be afforded his constitutional right to a trial before an impartial jury." The parties cite for us no case in which the court addresses the issue of whether a defendant who belongs to a gang has a right to have the venire questioned as to biases against gang members. This appears to be a case of first impression in Illinois courts of appeal. In most Illinois cases, we have found the trial court permitted questioning of the venire concerning gang evidence. 
Gang membership is an area of potential bias, as "there is widespread prejudice against street gangs." The court here refused to ask the venire any questions that could probe for this bias. Because of the complete lack of questioning on this issue, defendant could not exercise his peremptory challenges intelligently. The procedures employed here would not reveal prejudice against gang members. Indeed, the trial court effectively conceded that its procedure would allow onto the jury persons predisposed to find defendant guilty solely because he was a gang member, as the court refused to ask about bias against gangs in part because, with that question, the court would spend much more time impanelling an impartial jury.
We hold that even a gang member has a constitutional right to have his case determined on the basis of the evidence of his guilt or innocence, by a jury that is not predisposed to find him guilty solely because of his gang membership. Once the court decided to permit the prosecution to present evidence of defendant's gang affiliation, by denying defendant's motion in limine, "the trial judge was under a clear duty to insure during voir dire that the jury selected [was] free from prejudice against the group." The identification of defendant as the shooter by eyewitnesses sufficiently sustains a verdict finding him guilty beyond a reasonable doubt. The trier of fact must weigh the credibility of alibi testimony against the credibility of identification testimony. Because the trial court refused to ask the venire any question from which the defendant could determine whether jurors would be able to weigh impartially the evidence against an admitted gang member, the judgment of the trial court is reversed and this cause is remanded for a new trial.

You Decide 13.2
Shelling v. State, 52 S.W.3d 213 (Tex. App. 2001).
Appellant and Lisa Robinson were married in 1994 and moved to the Houston area where they became teachers in the same school district. Appellant was a jealous, possessive husband who recorded his wife's conversations, went through her purse, and accused her of unfaithfulness. On one occasion in 1996, appellant repeatedly punched Robinson for working late. Robinson moved out more than once, but always returned. In March 1997, appellant confronted Percie Melton, a female teacher with whom Robinson worked, to confirm that it was Melton, and not someone else, who gave Robinson perfume on her birthday. Melton had to show appellant the receipt. In June 1997, appellant moved out and returned to his family's home in Louisiana. Robinson met the victim, Carlos McMahon, the following September when she bought eyeglasses at EyeMasters where McMahon worked. They became friends and had frequent phone conversations. Appellant arrived unexpectedly at Robinson's apartment on the evening of October 7, 1997. She allowed him to stay overnight, but they did not sleep together. Appellant remained in the apartment the next day when Robinson left for work. 
Appellant walked into Robinson's classroom that morning wearing jeans, a T-shirt, and house slippers. He was very angry. He had a tape recorder and played a message left on Robinson's answering machine by McMahon (whom appellant did not know), but which appellant believed had been left by a friend of theirs named Shawn Crutcher. Appellant said, "So you're f___ing Shawn." Appellant then went into the hall and verbally assaulted Melton, who was talking with a counselor. He played the tape for Melton, and said, "Who the f___ is this?" Later that day, the Nissan Pathfinder Robinson drove to work was missing from the school parking lot; in its place was appellant's vehicle, a Maxima, with the tires slashed.
Appellant phoned Crutcher twice that day. He played the tape, accused Crutcher of having an affair with Robinson, and threatened to kill him.
Appellant persuaded Robinson to allow him to accompany her to Chicago to visit her family for the Thanksgiving holiday. While in Chicago, Robinson told appellant she was filing for divorce. Appellant said that, if he ever caught her with anyone else, "there would be drama." Robinson phoned McMahon from Chicago twice and, during one of those conversations, asked for his address.
Appellant and Robinson returned to Houston from Chicago on Friday, November 28, 1997. The following Sunday, November 30, McMahon and Robinson spoke on the phone twice and made plans to have dinner together that night. Robinson was to meet McMahon at his apartment after he got off work at 6:00 p.m. Between 4:00 and 5:00 p.m., appellant left in the Pathfinder, ostensibly to return to Louisiana.
However, when Robinson drove through the gate and into the parking lot of McMahon's apartment complex, she met appellant driving the Pathfinder. According to Robinson, the look on appellant's face was "the same look that he had when he walked in [her] classroom." They made eye contact, and Robinson was so terrified that she turned around and immediately left. She did not see where appellant went. That evening, McMahon's next door neighbor, Carol Jackson, heard loud noises from his apartment. It sounded like someone was knocking down the door, then like someone was hitting the common wall between the two apartments. Finally, Jackson heard a moan. Robinson phoned McMahon's apartment all night, but did not get an answer.
The next day, Robinson and Melton went to McMahon's apartment. There was no response when they knocked, but they found the door unlocked. Inside they made the gruesome discovery of McMahon's body and called police.
Sgt. Eric Mehl of the Houston Police Department investigated the case. He found six fired 0.380 caliber cartridge casings in the living room, two fired bullets in the dining room, and one in the freezer. According to Mehl, the killer was there simply to kill, robbery not being a motive. McMahon's wallet was in plain view and undisturbed, as were stereo equipment and other items. In Mehl's opinion, this was an "overkill" murder. McMahon had been shot 5 times, stabbed 11 times, and his throat had been cut, severing the jugular vein and slashing the carotid artery. Appellant's fingerprint was found on a plastic compact disk case on the kitchen counter. Robinson testified that she had never seen that compact disk before this trial. Robinson also testified that she and appellant were living together during the broadcasts of the O. J. Simpson trial and that appellant watched the trial to the point that it sometimes interfered with his work. She further stated that appellant believed Simpson was guilty but got away with murder.
In Issue 1, appellant contends the trial court erred in overruling his objections to the prosecutor's references to the O. J. Simpson trial during voir dire. In Issue 5, he contends the trial court erred in overruling his Batson1 objection to the State's use of its peremptory challenges against minority venirepersons based on their agreement with the Simpson verdict.
In his first issue presented, appellant asks whether the trial court erred in overruling appellant's objection to references to the O. J. Simpson trial during voir dire. Appellant claims he objected to any reference to the O. J. Simpson verdict, and the trial court overruled the objection. When the prosecutor stated he would like to know each juror's opinion on the O. J. verdict, the record actually reflects the following objection, which interrupted the prosecutor's explanation as to what he was not going to ask about: "I'm going to object to the reference to the O. J. verdict as it relates to homicide cases as it indirectly relates to this defendant, myself or cocounsel." The trial court overruled appellant's objection. When the prosecutor resumed his explanation, he stated that he was not interested in the politics or media spectacle, but in the jurors' thoughts about what they understood the evidence to be, whether they thought the verdict was right or wrong or whether they just did not follow it. Appellant then obtained a running objection to any question regarding the O. J. verdict. Thus, appellant's stated basis for his objection to any question regarding the O. J. verdict was limited to its relation to homicide cases directly and appellant and his counsel indirectly.
Appellant's objection at trial does not comport with his argument on appeal. Appellant does not state a separate basis for his first issue presented for review, but rolls four of his issues together. His global complaint on appeal is to prosecutorial misconduct that violated appellant's right to due process because appellant was entitled to be tried based on the allegations in the indictment, not allegations against O. J. Simpson. Appellant's most important reason why any comparison of appellant to O. J. Simpson was improper is because the Simpson case was racially polarizing, with the vast majority of African Americans believing the verdict was proper and an equally vast majority of Whites believing Simpson was improperly acquitted. There was no mention of such racial polarization in appellant's trial objection to the prosecutor's questions during jury selection. 
In Issue 5, appellant asks whether the trial court erred in overruling his objection to the State's use of peremptory challenges on minority veniremembers based on their belief that the O. J. Simpson verdict was correct. He argues that agreement or disagreement with the outcome of the Simpson case is not racially neutral.
The State does not dispute that appellant established a prima facie case under Batson. The burden of production then shifted to the State to come forward with race–neutral explanations. A reason is deemed race–neutral so long as no discriminatory intent is inherent in the explanation given, even if the explanation is fantastic or implausible. If a race–neutral reason is given, the trial judge must then decide whether the opponent of the strike has proved purposeful racial discrimination. The burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. In examining a Batson claim on appellate review, the reviewing court must determine whether the trial judge's findings were clearly erroneous by examining the evidence in the light most favorable to the trial judge's ruling. We must accord great deference to the trial court who was present to assess the credibility of the prosecutor and his explanations. After the jurors' names were announced by the clerk, appellant's counsel objected to the State's use of peremptory challenges against venirepersons numbers 5, 14, 32, and 44 on the basis of Batson. The prosecutor began his explanation by pointing out that the victim and virtually all State's witnesses in this case are Black. Next, the prosecutor mentioned his conversation with appellant's wife about appellant's fascination with the O. J. Simpson case, how he took off from work to watch it and commented that it was unbelievable that O. J. was able to beat the case when it was so obvious. The prosecutor also pointed out similarities between this case and the O. J. Simpson case.
The prosecutor then gave the following explanations for striking the four veniremembers: 
Veniremember No. 5, Libbie Eckroth
As to Eckroth, she was fast asleep the whole time you were talking. She indicated she couldn't see the board, even though she was in the first row and, most important, indicated that the O. J. verdict was fair, indicating that similar overwhelming scientific evidence or circumstantial evidence exists, she apparently believes that evidence is not enough to convict.
Veniremember No. 14, Deborah Quiller5
Juror No. 14--actually several reasons. First and foremost, I shared this information with Mr. Jones (defense counsel). I ran a criminal history on at least 40 people on the panel. I believe I have identified strike (sic--should be "five") people. I believe four of those people are White. I didn't pay attention to their race. I struck the other four people because of prior criminal history and/or convictions. Ms. Quiller, there has been a conviction or had been handled before for the offense of hot checks. She works for goodwill. She had her hands folded when she spoke with me. She was nodding vigorously with Mr. Jones. And another thing, when Mr. Jones asked a question, before he got to her row as to whether or not people would believe police officers would tell the truth, before she was even asked, she was shaking her head side to side no before she was even asked that question.
Veniremember No. 32, Earl Jolivett
As to Juror No. 32, Earl Jolivett, he stated emphatically not only the verdict was fair, he said flat out O. J. Simpson was not guilty.
Veniremember No. 44, Robin Robinson
As to 44, she also indicated to me that O. J. Simpson was a fair verdict. I believe I struck all people Black and White who indicated they thought the verdict was fair.
Appellant's counsel argued that the issue of the Simpson verdict allowed the prosecutor "to strike jurors along an ethnic line." However, the prosecutor countered that he peremptorily challenged venireperson no. 18, Mark Jordan, a White male, who believed the Simpson verdict was accurate.
The record supports the prosecutor's statement about Jordan who said, "If I was on that jury, from what I understood, I wouldn't have found him [Simpson] guilty." The record also reflects that the prosecutor peremptorily struck veniremember number one, Belinda Pearce, who stated, "I thought with the evidence that was provided to the jury that it [the Simpson verdict] was adequate." The defense did not complain that the State's peremptory challenges of Jordan and Pearce were racially motivated. The record thus supports the prosecutor's statement that he struck all members of the venire, Black and White, who indicated the Simpson verdict was fair.
During his argument on the Batson motion, defense counsel stated that the majority of the veniremembers either said they did not pay attention or they were uncertain. He also expressed surprise at the prosecutor's statements about appellant's fascination with O. J. Simpson's having gotten off, because this information had not been in the State's file. Explaining Ms. Quiller's shaking of her head, defense counsel said many folks were shaking their heads. In reference to Ms. Quiller's worthless check, defense counsel said it was a Class C misdemeanor that would not disqualify from jury service. Defense counsel also claimed that the prosecutor had not exercised peremptory strikes on White veniremembers who thought the jurors in the O.J. Simpson case had considered the evidence and whatever they decided was fine. The prosecutor took issue, stating that each and every veniremember who agreed with the O.J. Simpson verdict had been struck.
The trial court overruled the Batson objection, finding that the State's explanations were racially neutral. We agree with the trial court that the prosecutor's explanations were racially neutral and appellant's efforts to undermine them were not convincing. Under these circumstances, there should be no alternative but to uphold the trial court's exercise of discretion. The dissenting opinion would hold that asking prospective jurors their opinions of the O. J. Simpson verdict demonstrates per se the prosecutor's determination to remove all Blacks from the jury because it is common knowledge that the Simpson trial had a polarizing effect on the American public. Disregarding the fact that the prosecutor struck anyone, Black or White, who agreed with the Simpson verdict, the dissenting opinion would hold that the prosecutor engaged in racially discriminatory behavior.
The prosecutor may have been trying to gain an unfair advantage by trying to commit jurors to a set of facts based on the similarity of the O. J. Simpson murder case and this case. Nevertheless, that was neither the basis for appellant's objections at trial nor does that indicate any improper racial motives on the part of the prosecutor. Indeed, the prosecutor pointed out that the victim and nearly all of the State's witnesses were Black. What the prosecutor was apparently trying to do was to keep any prospective juror off the jury who would find appellant not guilty despite very strong circumstantial evidence similar to that in the O. J. Simpson case. What the prosecutor did may have been improper. From this record, however, there is no showing that what the prosecutor did was racially motivated. Therefore, we uphold the trial court's exercise of discretion in having believed the prosecutor's explanation that his peremptory strikes were not racially motivated. We overrule appellant's fifth issue.

You Decide 13.3 
United States v. Benally, 546 F.3d 1230 (10th Cir. 2008).
On October 10, 2007, a jury convicted Kerry Dean Benally of forcibly assaulting a Bureau of Indian Affairs officer with a dangerous weapon. The next day, one of the jurors came forward with a charge that the jury deliberations had been tainted by racial bias and other inappropriate considerations . . . .
Mr. Benally, a member of the Ute Mountain Ute tribe, was charged with forcibly assaulting a Bureau of Indian Affairs officer with a dangerous weapon. Prior to trial, he submitted several voir dire questions aimed at uncovering potential bias against Native Americans. The judge asked two of those questions at voir dire: "Would the fact that the defendant is a Native American affect your evaluation of the case?" and "Have you ever had a negative experience with any individuals of Native American descent? And, if so, would that experience affect your evaluation of the facts of this case?" No juror answered affirmatively to either question. The case proceeded to trial and the jury found Mr. Benally guilty.
The day after the jury announced its verdict, one juror approached defense counsel with unsettling information. This juror--"Juror K. C."--claimed that the jury deliberation had been improperly influenced by racist claims about Native Americans. The foreman, according to Juror K. C., told the other jurors that he used to live on or near an Indian Reservation, that "[w]hen Indians get alcohol, they all get drunk," and that when they get drunk, they get violent. Juror K. C. said that when she then argued with the foreman that not all Native Americans get drunk, the foreman insisted, "Yes, they do." Juror K. C. claimed that at that point a second juror chimed in to say that she had also lived on or near a reservation. While Juror K. C. could not hear the rest of this juror's statement, it was "clear she was agreeing with the foreman's statement about Indians." Juror K. C. continued she also described another discussion in which some jurors agreed about the need to "send a message back to the reservation." During this second discussion, Juror. K. C. says that one juror told how he had two family members in law enforcement and had "heard stories from them about what happens when people mess with police officers and get away with it."
Another juror supported some of Juror K. C.’s claims. Armed with these two affidavits, Mr. Benally moved to vacate the verdict and receive a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. He argued that the jurors had lied about their racial bias on voir dire and had improperly considered information not in evidence. The government opposed the motion on the ground that Mr. Benally's only evidence of misconduct was inadmissible under Rule 606(b). That rule states, in relevant part:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith.
FED. R. EVID. 606(b). Rule 606(b) provides three limited exceptions to this general prohibition against jurors testifying about jury deliberations:
But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form.
The district court admitted the juror testimony under the exceptions that allow jurors to testify about "whether extraneous prejudicial information was improperly brought to the jury's attention" or "whether any outside influence was improperly brought to bear upon any juror." Relying upon this evidence, the judge found that two jurors had lied on voir dire when they failed to reveal their past experiences with Native Americans and their preconception that all Native Americans get drunk and then violent. He also found that the jury had improperly considered extrinsic evidence when the juror whose family was in law enforcement related stories that showed the need to send a message. The judge viewed each of these as sufficient evidence of misconduct and granted a new trial. The government then appealed.
"When the affidavit of a juror, as to the misconduct of himself or the other members of the jury, is made the basis of a motion for a new trial, the court must choose between redressing the injury of the private litigant and inflicting the public injury which would result if jurors were permitted to testify as to what happened in the jury room." This case illustrates the tension between those interests. A juror has offered testimony that the verdict may have been influenced by improper arguments predicated on racial stereotyping and a need to send a message, but Mr. Benally can obtain redress (in the form of a new trial) only if that juror's testimony is admissible. Rule 606(b) says it is not.
The rule against impeachment of a jury verdict by juror testimony as to internal deliberations may be traced back to "Mansfield's Rule," originating in the 1785 case of Vaise v. Delaval, 99 Eng. Rep. 944 (K. B. 1785). Faced with juror testimony that the jury had reached its verdict by drawing lots, Lord Mansfield established a blanket ban on jurors testifying against their own verdict. The rule was adopted by most American jurisdictions and "[b]y the beginning of [the twentieth] century, if not earlier, the near-universal and firmly established common-law rule in the United States flatly prohibited the admission of juror testimony to impeach a jury verdict." This common-law principle, together with exceptions also developed by common law, was eventually codified into Federal Rule of Evidence 606(b).
Rule 606(b) is a rule of evidence, but its role in the criminal justice process is substantive: It insulates the deliberations of the jury from subsequent second-guessing by the judiciary. Jury decision-making is designed to be a black box: The inputs (evidence and argument) are carefully regulated by law and the output (the verdict) is publicly announced, but the inner workings and deliberation of the jury are deliberately insulated from subsequent review. Judges instruct the jury as to the law but have no way of knowing whether the jurors follow those instructions. Judges and lawyers speak to the jury about how to evaluate the evidence but cannot tell how the jurors decide among conflicting testimony or facts. Juries are told to put aside their prejudices and preconceptions, but no one knows whether they do so. Juries provide no reasons, only verdicts.
To treat the jury as a black box may seem to offend the search for perfect justice. The rule makes it difficult and in some cases impossible to ensure that jury verdicts are based on evidence and law rather than bias or caprice. But our legal system is grounded on the conviction, borne out by experience, that decisions by ordinary citizens are likely, over time and in the great majority of cases, to approximate justice more closely than more transparently law-bound decisions by professional jurists. Indeed, it might even be that the jury's ability to be irrational, as when it refuses to apply a law against a defendant who has in fact violated it, is one of its strengths. If what went on in the jury room were judicially reviewable for reasonableness or fairness, trials would no longer truly be by jury, as the Constitution commands. Final authority would be exercised by whomever is empowered to decide whether the jury's decision was reasonable enough or based on proper considerations. Judicial review of internal jury deliberations would have the result that "every jury verdict would either become the court's verdict or would be permitted to stand only by the court's leave." 
Defendants undoubtedly have a powerful interest in ensuring that the jury carefully and impartially considers the evidence. This case presents that interest to the highest degree. But there are compelling interests for prohibiting testimony about what goes on in the jury room after a verdict has been rendered. The rule protects the finality of verdicts. It protects jurors from harassment by counsel seeking to nullify a verdict. It reduces the incentive for jury tampering. It promotes free and frank jury discussions that would be chilled if threatened by the prospect of later being called to the stand. Finally, it preserves the "community's trust in a system that relies on the decisions of laypeople [that] would all be undermined by a barrage of postverdict scrutiny." "[T]he rule against jurors impeaching their own verdict is designed to promote the jury's freedom of deliberation, the stability and finality of verdicts, and the protection of jurors against annoyance and embarrassment."); Like other rules of evidence protecting the confidentiality of certain communications, such as the attorney–client privilege or the priest–penitent privilege, Rule 606(b) denies the court access to what may be relevant information--information that might, for example, justify a motion for a new trial. But like these other privileges, the rule protects the deliberative process in a broader sense. It is essential that jurors express themselves candidly and vigorously as they discuss the evidence presented in court. The prospect that their words could be subjected to judicial critique and public cross-examination would surely give jurors pause before they speak. ("If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation--to the destruction  of all frankness and freedom of discussion and conference.") Moreover, part of the urgency that comes from knowing that their decision is the final word may be lost if jurors know that their reasoning is subject to judicial oversight and correction. Had she known that the judge would review the jury's reasoning process, for instance, Juror K. C. might not have argued so persistently with the foreman; she might have chosen instead to sit back and wait for the judge to correct the foreman's unreasonableness.
Against this background, we must consider whether Juror K. C.'s testimony, or the defense investigator's report of conversations with another juror, is inadmissible under Rule 606(b). The Rule provides: "Upon inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations," with certain exceptions. The Rule goes on to say that "[a] juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying." Thus, if Juror K. C. or the other juror questioned by the defense investigator could not have testified on these matters, it was error for the district court to receive either an affidavit or other evidence of the testimony.1
Juror K. C.'s testimony (along with the affidavit of the investigator reporting the statements of another juror) reported statements made by the jury foreman and other jurors in the jury room as part of the jury's discussion of the case. This evidence unquestionably falls within the category of testimony as to a "statement occurring during the course of the jury's deliberations." Mr. Benally does not argue otherwise . . . . 
Since the contested juror testimony falls under Rule 606(b)'s general proscription, we must ask whether Mr. Benally can take advantage of one of the Rule's limited exceptions. Rule 606(b) enumerates three exceptions: "a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form." Mr. Benally argues that the juror statements in this case are about either "extraneous prejudicial information" or an "outside influence," falling under the first or second exception, respectively.2 These exceptions for extraneous influences cover misconduct such as jurors reading news reports about the case, jurors communicating with third parties, bribes, and jury tampering. 
If a juror were to conduct his own investigation and bring the results into the jury room, as the Henry Fonda character does in Twelve Angry Men, that behavior would constitute extraneous information, and Rule 606(b) would allow another juror to expose it. Courts must be careful, however, not to confuse a juror who introduces outside evidence with a juror who brings his personal experiences to bear on the matter at hand. We have said that "the inquiry is not whether the jurors 'became witnesses' in the sense that they discussed any matters not of record, but whether they discussed specific extra-record facts relating to the defendant, and if they did, whether there was a significant possibility that the defendant was prejudiced thereby." In Marquez, the juror's personal experience was quite specific and relevant to the matter at hand: she discussed her own experience training police dogs to help the jury determine the issue before it, which was whether the use of a police dog had constituted excessive force. Nevertheless, we held that this was not extraneous prejudicial information under Rule 606(b). None of the statements that Mr. Benally alleges his jurors made are "specific extra-record facts relating to the defendant." They are generalized statements, ostensibly based upon the jurors' personal experience. The statements might have been relevant to the matter before the jury, but that is not the inquiry. We instead ask whether the statements concerned specific facts about Mr. Benally or the incident in which he was charged, and they did not. We do not deny that the jurors' alleged statements were entirely improper and inappropriate. The statements about Native Americans in particular were gross generalizations built upon prejudice and had no place in the jury room. Impropriety alone, however, does not make a statement extraneous. That would unravel the internal/external distinction and make anything said in jury deliberations "extraneous information" so long as it was inappropriate. It was an abuse of discretion for the district court to admit this testimony under Rule 606(b)'s exceptions.
Mr. Benally then urges us that if the foreman's statements are not extraneous and do not fall under one of Rule 606(b)'s explicit exceptions, they should fall under an implicit exception for evidence of racial bias. The Ninth Circuit adopted this approach in United States v. Henley, when it said it would seem "consistent with the text of the rule, as well as with the broad goal of eliminating racial prejudice from the judicial system, to hold that evidence of racial bias is generally not subject to Rule 606(b)'s prohibitions against juror testimony." Racial bias, according to Henley, is so "plainly a mental bias that is unrelated to any specific issue that a juror in a criminal case may legitimately be called upon to determine" that any statement indicative of such bias cannot be deemed protected by an evidentiary rule. Other courts have refused to read such an exception into the text of Rule 606(b) (see, e.g., Shillcutt v. Gagnon, 827 F.2d 1155 (7th Cir. 1987) [applying Rule 606(b) to exclude a White juror's statement that "[The Defendant's] black and he sees a seventeen year old white girl--I know the type."]; Smith v. Brewer, 444 F.Supp. 482 (S.D. Iowa 1978) [applying the Rule to exclude jurors' mimicking of black attorney during deliberations]; aff'd, 577 F.2d 466 (8th Cir. 1978)).
To the extent the argument is made as a matter of policy, a court in a particular case is not the proper forum for making or enlarging exceptions to the rules of evidence. Our commission is to apply the Rules of Evidence as written and interpreted to the case at hand. Perhaps it would be a good idea to amend Rule 606(b) to allow testimony revealing racial bias in jury deliberations, but the body entrusted with making the Rules is Congress (advised by the Advisory Committee, which first considers proposed changes to the rules, takes public comment, and then recommends an appropriate action in a detailed report).
Congress deliberately rejected a version of Rule 606(b) with broader exceptions, which would have admitted the contested testimony in this case. The original House version of the rule would have allowed juror testimony regarding what was said in the jury room, while precluding testimony regarding the effect of those statements or anything else bearing on the subjective reasoning of the jurors. This would have adopted the so-called Iowa Rule, in which jurors may testify about "any matter occurring during the trial or in the jury room" as long as it "does not essentially inhere in the verdict itself." The Senate rejected this "extension of the ability to impeach a verdict" as "unwarranted and ill-advised," and its own version, which tracked the common-law rule, prevailed. Notably, in the course of this discussion, one Senator referred to the problem of "bias" on the part of judges and juries, but noted: "I do not believe it would be possible to conduct trials, particularly criminal prosecutions, as we know them today, if every verdict were followed by a post-trial hearing into the conduct of the juror's deliberations." The fact that Congress "specifically understood, considered, and rejected a version of Rule 606(b) that would have allowed jurors to testify on juror conduct during deliberations," reinforces our conviction that courts must adhere to the terms of the Rule. Judicial implication of a broader exception would be inconsistent with congressional intent. Courts no longer have common law authority to fashion and refashion rules of evidence as the justice of the case seems to demand, but must enforce the rules as enacted.
Mr. Benally's most powerful argument is that Rule 606(b) is unconstitutional as applied in this case, because it effectively precludes him from obtaining relief for what he regards as a violation of his Sixth Amendment right to an impartial jury. 
This Court, however, has consistently "upheld application of the Rule 606(b) standards of exclusion of juror testimony even in the face of Sixth Amendment fair jury arguments." We continue to adhere to that view.
In its precedent most closely analogous to this case, the Supreme Court rejected the defendant's argument that his Sixth Amendment right to trial by a competent jury required the admission of evidence otherwise inadmissible under Rule 606(b). Tanner, 483 U. S. at 126-27. In that case, after the jury had reached a guilty verdict, a juror voluntarily approached defense counsel and gave a sworn statement reporting heavy use of alcohol, marijuana, and cocaine by jurors during the trial. The Court "recognized that a defendant has a right to 'a tribunal both impartial and mentally competent to afford a hearing'" and did not question that juror intoxication, if proven through admissible evidence, would implicate that Sixth Amendment right. The Court reasoned, however, that in light of the "long-recognized and very substantial concerns [that] support the protection of jury deliberations from intrusive inquiry," and the availability of other "aspects of the trial process" that protect the defendant's "Sixth Amendment interests in an unimpaired jury," id., the Sixth Amendment did not compel an exception to Rule 606(b), id.--even though, in the particular case, those other protections had failed to expose the problem, which therefore went uncorrected. Tanner compels a similar result in this case. We must remember that he Sixth Amendment embodies a right to "a fair trial but not a perfect one, for there are no perfect trials." Where the attempt to cure defects in the jury process--here, the possibility that racial bias played a role in the jury's deliberations--entails the sacrifice of structural features in the justice system that have important systemic benefits, it is not necessarily in the interest of overall justice to do so. As the Court said in Tanner, "There is little doubt that postverdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it." The Tanner Court pointed out that there are a number of "aspects of the trial process," which, in most if not all cases, serve to protect the defendant's Sixth Amendment right without breaching the ban on postverdict juror testimony. The Court identified four such protections: voir dire, observation of the jury during court, reports by jurors of inappropriate behavior before they render a verdict, and postverdict impeachment by evidence other than juror testimony. Each protection might not be equally efficacious in every instance of jury misconduct. The judge will probably not be able to identify racist jurors based on trial conduct as easily as he could identify drunken jurors, for instance, and voir dire might be a feeble protection if a juror is determined to lie. This does not mean that defendants' interest in an impartial jury will go unprotected. Voir dire can still uncover racist predilections, especially when backed up by the threat of contempt or perjury prosecutions. Jurors can report to the judge during trial if racist remarks intrude on jury deliberations, enabling the judge to declare a mistrial or take other corrective measures. After the verdict is rendered, it could still be impeached if there is evidence of juror wrongdoing that does not depend on the testimony of fellow jurors in breach of Rule 606(b) confidentiality. And even trial observation could uncover racist attitudes if a juror openly wore his feelings on his sleeve. These protections might not be sufficient to eliminate every partial juror, just as in Tanner they proved insufficient to catch every intoxicated juror, but jury perfection is an untenable goal. The safeguards that the Court relied upon for exposing the drug and alcohol use amongst jurors in Tanner are also available to expose racial biases of the sort alleged in Mr. Benally's case.
The defendant attempts to distinguish Tanner on the ground that racial bias is a more serious and fundamental danger to the justice system than intoxicated jurors. Perhaps that is so. But we do not see how the principle urged by the defendant in this case--that Rule 606(b) is unconstitutional as applied in a case where it prevents rectification of a Sixth Amendment violation--could  ] be confined to the context of racial prejudice. It may well be true that racial prejudice is an especially odious, and especially common, form of Sixth Amendment violation. But once it is held that the rules of evidence must be subordinated to the need to admit evidence of Sixth Amendment violations, we do not see how the courts could stop at the "most serious" such violations. Indeed, it is hard to see why, under this theory, Tanner should not have been decided the other way.
Nor does there seem to be a principled reason to limit the exception only to claims of bias, when other types of jury misconduct undermine a fair trial as well. If a jury does not follow the jury instructions, or ignores relevant evidence, or flips a coin, or falls asleep, then surely that defendant's right to a fair trial would be aggrieved, just as Mr. Benally's was. How could we deny that defendant a chance to use juror testimony to seek a new trial, simply because the jury misconduct did not involve racial prejudice? But if every claim that, if factually supported, would be sufficient to demand a new trial warrants an exception to Rule 606(b), there would be nothing left of the Rule, and the great benefit of protecting jury decision-making from judicial review would be lost.
The defendant points out that no court of appeals has held, categorically, that Rule 606(b) is an absolute bar to the introduction of juror testimony regarding expressions of racial bias during jury deliberations. Other courts that have denied a general exception for racial bias have at the same time acknowledged that "further review may be necessary in the occasional case in order to discover the extremely rare abuse that could exist even after the court has applied the rule and determined the evidence incompetent." We are skeptical of this approach. If confidentiality can be breached whenever a court, after the fact, thinks the advantages of doing so are important enough, much of the damage has already ] been done. We are inclined to think that in such a case other remedies can be found, without violating Rule 606(b). But here, it suffices to say that the case has not been made. According to Juror K.C.'s account, racially biased statements were made but she herself countered them. The verdict was unanimous, which means that Juror K. C., who protested the racially prejudiced statements, joined in finding Mr. Benally guilty beyond a reasonable doubt. This is not a case, therefore, where the verdict itself was shown to be based on the defendant's race rather than on the evidence and the law.
We therefore reject the defendant's argument that Rule 606(b) contains an implicit exception for racially biased statements made during jury deliberations, nor do we think the Rule is unconstitutional as applied in this case.

You Decide 13.4
Commonwealth v. Martin, CP-38-CR-0000899-1993, CP-38-CR-0001079-1993 (Common Pleas Ct. of Lebanon Co. Pa. Crim. Div. 2014).
Before the Court is the Defendant's Motion to Compel Specific Performance of Plea Agreement Whereby It Was Agreed that the Commonwealth Would Waive Any Request for the Death Penalty. The Defendant's Motion contends that the "package deal" plea agreement offered by the Commonwealth prior to the Defendant's 1994 murder trial was unconscionable and violative of Due Process, because it conditioned the Defendant's ability to plead guilty to first-degree murder in exchange for a life sentence upon the agreement of his unwilling co-Defendant, Carolyn King, to do the same. After careful and deliberate consideration of what we believe to be a case of first impression in this Commonwealth, we find that the proffered agreement as to the Defendant,2 who was prevented from accepting its terms solely on the basis of a whim of his co-defendant, does indeed violate the protections of Due Process afforded by the U.S. and Pennsylvania Constitutions.
The only substantive issue that remains outstanding before the Court, then, is the Defendant's Motion to Compel Specific Performance of Plea Agreement. The facts underlying Defendant's Motion are not in dispute. At Oral Argument on July 31, 2014, both the Commonwealth and the Defendant stipulated to the following facts as recited by the Court:
My understanding is that there's not in dispute the questions as to whether prior to trial the Commonwealth offered a plea agreement to both Defendants for life imprisonment in exchange for their guilty pleas to a first-degree murder determination. That offer was conditioned upon a (plea) by both Defendants. There was a transfer of an acceptance by Defendant Martin. There was also a notation by Defendant King that it was not accepted. The plea agreement did not go forward. So the offer for Defendant Martin was not consummated. The factor of keeping that from occurring was the fact that Defendant [  King refused to accept the plea agreement and to serve a life sentence. That was the only factor that kept that plea agreement from being presented to the Court. Lastly, obviously, Defendants Martin and King proceeded then to trial and subsequent conviction.
Additional submissions to the Court, attached as exhibits to the Defendant's Motion to Compel Specific Performance of Plea Agreement to establish the factual background of the plea bargaining process between the parties, have not been contested by the Commonwealth. Those exhibits indicate the following:
(1) The "package deal" plea bargain was first formally communicated to the parties by correspondence from then District Attorney Bradford Chares to counsel for both defendants on February 7, 1994. (2) Upon receiving the Commonwealth's offer, Bradley Martin immediately agreed to plead under the Commonwealth's terms, but Carolyn King refused to plead, against the advice of her counsel. (3) Bradley Martin and his counsel over a period of months  attempted to persuade Carolyn King to accept the Commonwealth's offer, but were ultimately unsuccessful. (4) On September 12, 1994, the District Attorney rejected an alternative plea bargain proposed by Carolyn King's attorney in which King would agree to plead to third-degree murder and Bradley Martin would plead to first-degree murder in exchange for a sentence of life imprisonment. (5) On September 20, 1994, Bradley Martin's attorney indicated in correspondence to the District Attorney that Martin remained willing to plead under the Commonwealth's terms for a "package deal" plea to first-degree murder, but Carolyn King continued to refuse to plead to first-degree murder. Martin's attorney asked that the District Attorney consider permitting Martin to plead to first-degree murder for a sentence of life imprisonment and permit Carolyn King to plead to something less in order to resolve both cases in a judicious manner. (6) On September 30, 1994, the eve of trial, Assistant District Attorney Donna Brightbill faxed both Defendants correspondence advising that "any and all plea agreement discussions and offers which representatives from this office previously had with you are hereby withdrawn" because "[t]he discussions regarding a possible plea agreement were made in an effort to save the county of Lebanon from expenses such as air travel and accommodations for our out-of-town witnesses," and the avoidance of those expenses was no longer possible. (7) Despite the prosecution's September 30, 1994 correspondence, even on the morning trial was to commence, the Commonwealth remained ready to accept a plea to first-degree murder in exchange for a sentence of life imprisonment for both defendants. As the Defendant and his attorney sat at counsel table in the courtroom in which jury selection was scheduled to begin, Carolyn King "had the plea agreement in front of her, had her pen out to sign it which was not the first time she had her pen out to sign the agreement, and then at the last minute she just tossed the pen back on the table and we went [  to trial." (8) The Commonwealth's "package deal" plea offer remained open throughout the jury selection process, and Bradley Martin remained willing to plead under its terms. His co-defendant, Carolyn King, continued to decline to plead to first-degree murder, and trial began. 
Both the Defendant and the Commonwealth have had ample opportunity to present their respective positions on the instant Motion to the Court. The Defendant argues that he should be entitled to specific performance of the plea agreement, if not as of right, as a matter of judicial discretion, based upon the principles of both contract and Constitutional law. Under the contract law theory, the Defendant argues that he accepted the plea agreement offered by the Commonwealth and that therefore this Court has the power to specifically enforce that agreement. While conceding that he was prevented, by his co-defendant, from fulfilling all terms of the Agreement, the Defendant argues that the term he could not fulfill (the "package deal" term) is an unconscionable one that can be severed from the agreement while the rest of the agreement is specifically enforced.
The Defendant also asserts that the Commonwealth's "package deal" plea agreement, once agreed to by Bradley Martin but refused by Carolyn King, violated the principles of Due Process, which are heightened in death penalty cases. The Defendant contends the Commonwealth's offer, because it conditioned fulfillment of the agreement on a condition beyond the control of Bradley Martin, violated the concerns of fundamental fairness. He argues it was fundamentally unfair and unconscionable for the Commonwealth to determine, after consultation with law enforcement and the victim's family that a sentence of life imprisonment would  satisfy the interests of justice in the case, and yet later still pursue a sentence of death for Defendant, despite his repeated requests to plead guilty for life imprisonment, solely on the basis that his co-defendant King would not also plead.
In response, the Commonwealth argues that the Defendant is not entitled to specific performance of the plea agreement, because the Defendant failed to accept its terms. The District Attorney points out the language of the Commonwealth's offer very specifically indicated the intent to waive a request for the death penalty only if both Bradley Martin and Carolyn King pleaded guilty to first-degree murder. Because Carolyn King did not agree to plead to first-degree murder, Bradley Martin never accepted the specific terms proposed in the Commonwealth's offer. Thus, no contract existed between the parties; there existed instead an offer not accepted by Bradley Martin and a counteroffer (Bradley Martin's offer to plead independently   of Carolyn King) not accepted by the Commonwealth. Therefore, the Commonwealth argues that contract principles and remedies cannot afford the Defendant the relief he seeks.
With this summary of the history of the case and the positions of the parties in mind, we turn to the issues presented by the Defendant's Motion.
We turn then to the Defendant's claim for relief based upon the protections of Due Process as guaranteed by both the U.S. and Pennsylvania Constitutions. Bradley Martin argues that the "package deal" plea agreement offered by the Commonwealth prior to his 1994 murder trial was violative of his due process rights, because it conditioned his ability to plead guilty to first-degree murder in exchange for a life sentence upon the agreement of Carolyn King to do the same. Neither party has been able to provide the Court with controlling authority on the precise ground for relief raised by the Defendant. Likewise, our own thorough search for controlling precedent has uncovered none. Although "package deal" plea bargains have been reviewed, and cautiously permitted, in the context of their effect on the voluntariness of pleas, no Pennsylvania appellate court has ruled, on due process grounds, that such "package deals" are permissible in the context of a co-defendant  who wishes to plead under a package deal agreement, but is prevented from doing so by the unwillingness of his co-defendant. Moreover, there is certainly no controlling precedent on such grounds in a Pennsylvania capital case, in which a Defendant, who never wavered in his desire to accept a plea agreement for life imprisonment proffered by the Commonwealth, was deprived of the opportunity to do so by a condition outside his control and then ultimately sentenced to death. We are left, then, to resolve the Defendant's claim as one of first impression, examining the standards of Due Process and their application to the plea bargaining process, within the context of a capital case.

A. The heightened scrutiny of capital case jurisprudence
https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=5d1a6352-9fbf-4df6-972c-7e57fb89f17f&ecomp=_g85k&prid=2d080b3d-b662-47df-a144-0d5031963b98Our analysis begins with an acknowledgment of the heightened scrutiny to which capital cases are subject. The U.S. Supreme Court has repeatedly recognized that "death is different." "[T]he penalty of death is qualitatively different from a sentence of imprisonment,  however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two." For this reason, the death penalty presents different and far more serious concerns than any other sanction. https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=5d1a6352-9fbf-4df6-972c-7e57fb89f17f&ecomp=_g85k&prid=2d080b3d-b662-47df-a144-0d5031963b98; https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=5d1a6352-9fbf-4df6-972c-7e57fb89f17f&ecomp=_g85k&prid=2d080b3d-b662-47df-a144-0d5031963b98
The conclusion "that 'death is different' . . . means that the firm view of our society demands that it be treated differently in certain identifiable respects . . ." "[T]he qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination." Indeed, in some instances, the Supreme Court has, "'in the interests of justice,' been willing to overlook requirements that it would ordinarily impose in non-capital cases." https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=5d1a6352-9fbf-4df6-972c-7e57fb89f17f&ecomp=_g85k&prid=2d080b3d-b662-47df-a144-0d5031963b98Moreover, capital case review is progressively tightening, a reflection, perhaps, of the "evolving standards of decency." While an exhaustive review of death penalty jurisprudence is outside the scope of this Opinion, we are certainly aware of the current trend in this area of the law. In sum, the protections ]  afforded to capital case defendants are ever expanding, and the circumstances under which the state may seek and impose the penalty are ever narrowing. It is within this context of heightened scrutiny and ever-broadening protections that we consider the Defendant's due process claim.
The Defendant's right to Due Process of law is guaranteed by both the Pennsylvania and U.S. Constitutions. https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=5d1a6352-9fbf-4df6-972c-7e57fb89f17f&ecomp=_g85k&prid=2d080b3d-b662-47df-a144-0d5031963b98The due process inquiry, in its most general form, entails an assessment as to whether the challenged proceeding or conduct "'offends some principle of justice so rooted in the traditions and conscience  of our people as to be ranked as fundamental'." https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=5d1a6352-9fbf-4df6-972c-7e57fb89f17f&ecomp=_g85k&prid=2d080b3d-b662-47df-a144-0d5031963b98Additionally, Due Process prevents the government from engaging in conduct which "shocks the conscience, or interferes with rights implicit in the concept of ordered liberty."
The Commonwealth does not attempt to defend its "package deal" plea bargain in the instant case based upon the above suggested standards for Due Process. It does not attempt to argue that its proffered plea agreement comports with the principles of fundamental fairness or fails to shock the conscience. Nor does it deny that the agreement, and its outcome, could be perceived as arbitrary or at odds with the concept of ordered liberty. Rather, the Commonwealth argues only that a defendant has no Constitutional right to a plea bargain, and the Commonwealth, absent a decision based upon an invidious classification, has complete discretion both to decide whether to offer a plea agreement and to dictate its terms. 
https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=5d1a6352-9fbf-4df6-972c-7e57fb89f17f&ecomp=_g85k&prid=2d080b3d-b662-47df-a144-0d5031963b98We agree with the Commonwealth that a defendant has no right to be offered a plea bargain. "The  decision as to whether to enter into plea negotiations is a function of prosecutorial discretion, and we will not review such decisions unless such decisions are based upon an invidious classification such as race, religion, or national origin." https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=5d1a6352-9fbf-4df6-972c-7e57fb89f17f&ecomp=_g85k&prid=2d080b3d-b662-47df-a144-0d5031963b98However, "[w]hen a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution." The significant discretionary area of prosecutorial plea bargaining is no exception to this general rule.
https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=5d1a6352-9fbf-4df6-972c-7e57fb89f17f&ecomp=_g85k&prid=2d080b3d-b662-47df-a144-0d5031963b98We do not step outside of precedent by applying Constitutional protections to the discretionary area of plea bargaining. In Santobello v. New York, the U.S. Supreme Court, while recognizing the value of plea bargaining in the criminal justice system, noted that 
https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=5d1a6352-9fbf-4df6-972c-7e57fb89f17f&ecomp=_g85k&prid=2d080b3d-b662-47df-a144-0d5031963b98 . . . all of these considerations presuppose fairness in securing agreement between an accused and a prosecutor. . . .[t]his phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=5d1a6352-9fbf-4df6-972c-7e57fb89f17f&ecomp=_g85k&prid=2d080b3d-b662-47df-a144-0d5031963b98Those circumstances will vary.
https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=5d1a6352-9fbf-4df6-972c-7e57fb89f17f&ecomp=_g85k&prid=2d080b3d-b662-47df-a144-0d5031963b98While it is true that the practice of plea bargaining is looked upon with favor, the integrity of our judicial process demands that certain safeguards be stringently adhered to . . . 
https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=5d1a6352-9fbf-4df6-972c-7e57fb89f17f&ecomp=_g85k&prid=2d080b3d-b662-47df-a144-0d5031963b98 . . . The State's contentions are neither illogical nor without some persuasive force, yet they do not suffice to overcome a simple reality. Ninety-seven percent of federal convictions and 94% of state convictions are the result of guilty pleas. The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel has responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=5d1a6352-9fbf-4df6-972c-7e57fb89f17f&ecomp=_g85k&prid=2d080b3d-b662-47df-a144-0d5031963b98Because ours "is for  the most part a system of pleas, not a system of trials," it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. "To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system." ("[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes. https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=5d1a6352-9fbf-4df6-972c-7e57fb89f17f&ecomp=_g85k&prid=2d080b3d-b662-47df-a144-0d5031963b98This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals who are less morally culpable but take a chance and go to trial." In today's criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.
https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=5d1a6352-9fbf-4df6-972c-7e57fb89f17f&ecomp=_g85k&prid=2d080b3d-b662-47df-a144-0d5031963b98Thus, our decision today does not depart from precedent, which requires the application of Constitutional protections to the plea bargaining process, even before an offer by the prosecution is communicated to a defendant, agreed to by the parties, or presented to the Court. 
https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=5d1a6352-9fbf-4df6-972c-7e57fb89f17f&ecomp=_g85k&prid=2d080b3d-b662-47df-a144-0d5031963b98 While we respect the broad discretion of the prosecution in the plea bargaining process, we also note that that discretion is not unfettered. Rather, that discretion and the plea bargaining process itself are subject to Constitutional and specifically due process scrutiny, even when an offer has not been accepted by a defendant or presented in Court.
We turn then to the specific issue of this case, an application of the protections of Due Process as they apply to a "package deal" plea agreement, in which the Commonwealth offered to permit the Defendant to plead guilty to first-degree murder in exchange for a life sentence only if his co-defendant indicated a willingness to do the same. We are required to determine whether that conditioned plea agreement violated the standards of Due Process, when the Defendant's co-defendant indicated, as late as the morning of trial, that she did not intend to plead for life and the Defendant was thereby prevented from accepting the Commonwealth's offer by a factor outside of his control.
https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=5d1a6352-9fbf-4df6-972c-7e57fb89f17f&ecomp=_g85k&prid=2d080b3d-b662-47df-a144-0d5031963b98"Package deal" plea agreements have been the subject of due process and general Constitutional analysis, but not in the manner at issue in the instant case. Existing "package deal" jurisprudence has evaluated such plea bargains for their potentially coercive effect on the defendant who is hesitant to plead under the proposed agreement. In evaluating "package deals" from this standpoint, courts have held that, while not per se violative of public policy or Constitutional protections, such "package deal" pleas do pose special   risks.https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=5d1a6352-9fbf-4df6-972c-7e57fb89f17f&ecomp=_g85k&prid=2d080b3d-b662-47df-a144-0d5031963b98; https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=5d1a6352-9fbf-4df6-972c-7e57fb89f17f&ecomp=_g85k&prid=2d080b3d-b662-47df-a144-0d5031963b98The risk . . . is the possibility that a defendant's guilty plea is not truly voluntary, but rather the product of coercion. As explained by the Supreme Court in Bordenkircher v. Hayes, "a prosecutor's offer during plea bargaining of adverse or lenient treatment for some person other than the accused might pose a greater danger of inducing a false guilty plea by skewing the assessment of the risks a defendant must consider." 
The precedent cited above as permitting, with caution, "package deal" pleas is not determinative in the instant case, because such cases were concerned with the voluntary nature of the plea of a co-defendant who did not wish to plead. The Defendant's claim of error in the instant case is not that he was forced to plead against his will. Rather, his claim is that he was denied Due Process by being prevented from pleading under the agreement (and thereby avoiding exposure to a possible death sentence) by a condition he could not control, the vacillating will of his co-defendant.
Therefore, in the absence of binding precedent to the contrary, with an awareness of the continuing trends in criminal Constitutional law and death penalty jurisprudence, and in light of the standards for evaluating due process claims as articulated above in this Opinion, we hold as follows: While we concur with the Commonwealth that it is under no obligation to extend a negotiated plea offer to a defendant prior to trial, we hold that, once the  Commonwealth opts to make such an offer, its offer must comport with the protections of the Constitution, including those of Due Process. In the particular facts of the case at Bar, the Commonwealth's insistence on the fulfillment of the "package deal" term in the proffered plea agreement violated the Defendant's due process rights, because it impermissibly conditioned the Defendant's ability to accept the agreement for a sentence of life imprisonment without exposure to the death penalty upon something outside of the Defendant's ability to control.
The Commonwealth has urged us to hold otherwise: to sanction as "fundamentally fair" the Commonwealth's renewed pursuit of the ultimate punishment based solely upon the whim of the Defendant's capital co-defendant because the prosecution has unfettered discretion to extend plea bargains with any random condition. The logical extensions  of that position are troubling. As we explored with the Commonwealth during Oral Argument, such a position would make it permissible for a prosecutor to offer a plea bargain to a defendant that could be accepted only if it rained on the day of the scheduled plea, or if the District Attorney's favorite football team prevailed the night before. While the Commonwealth protests that these circumstances are inapposite to the case at Bar, all of these scenarios have in common a defendant, with whom the Commonwealth has already decided to bargain, who is unable to accept the Commonwealth's tendered offer because a condition outside his control has not been fulfilled. Whether that condition is the weather, the outcome of a sporting event, or the trial-day whim of a co-defendant, such conditions do not comport with the . . . language, which requires that a defendant be "free to accept or reject the prosecution's offer." They certainly do not seem fundamentally fair. Moreover, rather than being part of a process of ordered liberty, they lead to outcomes that seem random and arbitrary and thereby taint and pervert the plea bargaining process. Finally, the idea that the Commonwealth  determined that justice could be satisfied by a sentence of life imprisonment instead of death and made that offer to the Defendant, only to effectively withdraw that offer because his co-defendant threw down her pen on the morning of trial and decided to roll the dice with a jury, does indeed "shock our conscience." As counsel for the Defendant opined at oral argument, the Commonwealth's continued insistence on the "package deal" term meant, effectively, that "a man might live or die based upon the decision of Carolyn King, . . . " The Commonwealth vehemently opposes this conclusion, arguing it was up to (and will be up to again) a panel of sentencing jurors to determine whether Bradley Martin was (and will be) subject to death or to life imprisonment. https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=5d1a6352-9fbf-4df6-972c-7e57fb89f17f&ecomp=_g85k&prid=2d080b3d-b662-47df-a144-0d5031963b98[I]t is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. "To a large extent . . . horse trading [between prosecutor and defense counsel] determines who goes to jail and for how long . . . " (internal citations omitted).
https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=5d1a6352-9fbf-4df6-972c-7e57fb89f17f&ecomp=_g85k&prid=2d080b3d-b662-47df-a144-0d5031963b98 We decline to  find that a subsequent, "fair" capital sentencing proceeding necessarily serves as a backstop inoculating a Constitutional violation in the pretrial, plea bargaining process. In the instant case, the horse trading between prosecutor and defense counsel effectively determined whether Bradley Martin, in 1994, was sentenced by this Court to death. Absent our intervention to remedy the due process violation suffered by Martin in 1994, it is possible that outcome could occur again.

Remedy
We are left then to determine an appropriate remedy for the violation of Defendant's due process rights during the plea bargaining process. Although the Defendant argues for specific enforcement of the plea agreement, we find that in the strictest sense that remedy is not available. Even if we were to excise the offending "package deal" term from the agreement, the parties are no longer in a position to perform the remaining terms of the contract. The case is no longer at the pretrial stage; the Defendant can no longer plead guilty prior to trial in exchange for the removal of the possible specter of a death sentence. When the plea offer was effectively withdrawn by the Commonwealth after Carolyn King declined to plead on the morning of trial, the Defendant went to trial, was found guilty, and was ultimately sentenced to death by a jury of his peers. His guilt on the underlying first-degree murder charge is no longer at issue, and there is no plea to that charge to be made. 
https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=5d1a6352-9fbf-4df6-972c-7e57fb89f17f&ecomp=_g85k&prid=2d080b3d-b662-47df-a144-0d5031963b98We can . . . , achieve "fundamental fairness" as a matter of judicial discretion, if we believe the interests of justice warrant it. Based on the undisputed facts before us, we believe the interests of justice do indeed warrant the exercise of our equitable powers in the instant case, and so will enter an order finding that the Defendant is entitled to, and we intend to impose, a sentence of life imprisonment on the charge of first-degree murder. https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=5d1a6352-9fbf-4df6-972c-7e57fb89f17f&ecomp=_g85k&prid=2d080b3d-b662-47df-a144-0d5031963b98 . . . Although this resolution does not put the Defendant back in his original position, with the opportunity to avoid going to trial or spending the last two decades on death row, he will be spared exposure to  a possible sentence of death in a new sentencing proceeding. Likewise, although our decision does not undo the expenditure of resources and effort invested by both the Commonwealth and the Defendant in the original trial, it does spare both parties the additional and significant effort and expense of conducting a new sentencing hearing, while achieving the Commonwealth's additional goal of efficient resolution of the Defendant's case.
We emphasize that our decision today is in   no way an effort to remove the plea bargaining tool from the District Attorney's toolbox. It is, instead, an attempt to insure that tool is used in a Constitutional, fundamentally fair manner, rather than in a way that offends our sense of ordered liberty and leads to outcomes that seem disturbingly capricious. Likewise, our decision should not be perceived as reflective of a disinclination to apply capital punishment in appropriate circumstances. It is not a commentary on the heinousness of the crime committed by Bradley Martin or the grievous loss suffered by the victim's family. Both of those considerations were taken into account by the prosecution before it indicated a willingness to withdraw its pursuit of the death penalty in its formal offer to Bradley Martin in this case.
We are certainly not seeking to abolish the death penalty, nor strip the Commonwealth of its power to seek it. But if the death penalty is going to remain a viable form of punishment for the "worst of the worst" in this Commonwealth, its pursuit by prosecutors and its imposition by the courts must be marked by sober, deliberate, and intentional process. When the State pursues the death penalty in a manner   that appears arbitrary and fundamentally unfair, and we find that it does in the instant case, it risks losing altogether the availability of the penalty in the future.

You Decide 13.5
People v. Robinson, 2017 COA 128M.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9 During opening statement in this criminal prosecution charging defendant, Marcus Lee Robinson, with multiple counts of sexual assault, attempted sexual assault, and unlawful sexual contact, the prosecutor told the jury:
You're going to hear that one of the victims, A.M., is White. And she's actually pretty pasty. She's pasty White. And you obviously have seen Mr. Robinson is dark. He is an African American of dark complexion. The other victim, E.G., looks over and she can see a dark penis going into a White body. That's how graphic she could see [sic].
Defense counsel did not object, and the trial court did not interrupt the proceedings to either admonish   the prosecutor or instruct the jury to disregard the prosecutor's statements.
Viewed objectively, the prosecutor's statements could have been reasonably understood by the jury as an appeal to racial prejudice that raises a substantial question whether Robinson received a trial free from the taint of racial prejudice.1 Only by reversing Robinson's convictions can we ensure that racial prejudice plays no part in the adjudication of this case. Accordingly, we reverse Robinson's convictions and remand for a new trial. Because they are likely to arise on retrial, we also address Robinson's other contentions of prosecutorial misconduct. Relevant Facts and Procedural History
A.M. and her roommate hosted a party at their apartment. A.M. drank a lot of alcohol and eventually passed out on a couch. E.G. also attended the party and she became ill after the alcohol she drank reacted with her prescription medication. E.G. fell asleep on the same couch on which A.M. had passed out.
Robinson, who was in an intimate relationship with A.M.'s roommate, arrived at the apartment late in the night, when the party was winding down. E.G. testified that Robinson woke her by straddling her head and putting  his exposed penis in her face. She told him to go away and he did, at least for a time. E.G. wakened again to see Robinson rubbing A.M.'s thighs and breasts (A.M. remained asleep or unconscious) and again told him to go away. She was awakened a third time when, she testified, she saw Robinson vaginally penetrating the still sleeping or unconscious A.M. E.G. told the jury that she yelled at Robinson and he left the apartment. E.G. called 911 to report the sexual assault and medical personnel were dispatched to attend to A.M., who ultimately was revived.
 After Robinson left, he sent A.M.'s roommate a text message, admitted at trial, that said, "That girl was curse n out me I must did something if dig dumthg ribg I'm sorry so lft don't knie I'm s [sic]." Robinson explained to the police that "he knew he was in the wrong for trying to have sex with [A.M.]" because he was in a relationship with her roommate.
 While Robinson admitted to the police that he asked A.M. to have sex with him, he denied any sexual contact with her, claiming that he left her alone after she repeatedly declined his requests. Robinson also denied any sexual contact with E.G.
 As to A.M., Robinson was charged with two  counts of sexual assault (victim helpless), two counts of sexual assault (victim incapable), and two counts of unlawful sexual contact (victim helpless). As to E.G., Robinson was charged with one count of attempted sexual assault (victim incapable), one count of attempted sexual assault (victim helpless), and one count of attempted unlawful sexual contact (victim helpless).
 At trial, the nurse who examined A.M. testified that she had no injuries to her internal or external genitalia. A DNA expert also testified that the trace amount of male DNA found on A.M.'s external genitalia was too small of a sample to be matched to any individual, including Robinson.
 The jury acquitted Robinson of all of the charges related to E.G. It acquitted Robinson of the completed crimes of sexual assault against A.M., thus rejecting, at least in part, E.G.'s testimony, but convicted him of two counts of unlawful sexual contact and two counts of the lesser included offense of attempted sexual assault. The trial court sentenced Robinson under the Sex Offender Lifetime Supervision Act to four years to life imprisonment.
Robinson  argues that the prosecutor's description of "a dark penis going into a White body" during opening statement constituted prosecutorial misconduct amounting to plain error, requiring reversal of his convictions. We agree.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9We engage in a two-step analysis to review claims of prosecutorial misconduct. First, we determine whether the prosecutor's conduct was improper "based on the totality of the circumstances." If we conclude that the conduct was improper, we then determine whether it warrants reversal according to the proper standard of review. 
A. The Prosecutor's Opening Statement Was Flagrantly, Glaringly, and Tremendously Improper
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9 "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate." More than 80 years ago, the U.S. Supreme Court explained that a prosecutor's interest in a criminal prosecution "is not that [she] shall win a case, but that justice shall be done."
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9In executing her substantial powers, a prosecutor must refrain from improper methods calculated to produce a wrongful conviction. https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9This constraint protects a defendant's right to be tried by a fair and impartial jury "empaneled to determine the issues  solely on the basis of the evidence introduced at trial rather than on the basis of bias or prejudice for or against a party."
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9  Prosecutorial remarks that evoke any kind of bias or prejudice are always improper; "such argument clearly trespasses the bounds of reasonable inference or fair comment on the evidence" (quoting ABA Standards for Criminal Justice: Prosecution Function and Defense Function § 3-5.8 cmt. (3d ed. 1993)).
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9 A prosecutor's appeal to racial stereotypes or racial bias to achieve a conviction is especially deplorable and gravely violates a defendant's right to due process of law.  The prosecutor did not articulate to the jury any conceivably proper use of the race-based statements. Thus, irrespective of whether a different record might justify such statements, this record does not permit such a conclusion. https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9Instead, viewed objectively, the prosecutor's opening statement, by its words and in the context it was presented to the jury, was an appeal to racial prejudice. Indeed, the prosecutor's words invoked some of the most damaging historical racial stereotypes--stereotypes that have infected judicial proceedings in this country for generations. https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9  To be sure, in limited instances the race of the defendant, the victim, or a witness may be relevant to the issues presented. "An unembellished reference to evidence of race simply as a factor bolstering an eyewitness identification of a culprit, for example, poses no threat to purity of the trial." https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9"The line of demarcation is crossed, however, when the argument shifts its emphasis from evidence to emotion." Id. This principle is especially pronounced when, as here, a prosecutor's argument objectively appeals to racial prejudice in the context of a sexual crime, "for few forms of prejudice are so virulent."
The Attorney General points out that on direct examination, E.G. testified that she was able to see A.M. in the dimly lit room because of A.M.'s light complexion. But E.G. never testified that Robinson's darker complexion aided her ability to see what was happening. To the contrary, the only time that E.G. testified about Robinson's skin tone was in direct response to the prosecutor's questions about Robinson's race and complexion:
Prosecutor: How could you see that [A.M. was naked from the waist down]?
E.G.: Because it was a dark room and [A.M.]--I hate to say it, but she's really, really white. So I could see that she was naked from the waist down.
Q: What was going on at that point?
A: He was inside of her. He was having sex with her.
Q: How do you know he was inside of her?
A: Because I could see it. I could see it from my angle. He was in the process of having sex with her. And then he realized that I woke up. And he looks over to me as he's penetrating her[.]
. . . .
Q: You said he was penetrating her. How was Mr. Robinson dressed at this point?
A: Um, at this point by the third incident he was actually--he was naked from the waist down. That I do remember. I can't remember if he was wearing a shirt or not. But he was naked from the waist down because he had to run and get pants.
Q: What race is Mr. Robinson?
A: He's African American.
Q: And how would you describe his complexion?
A: It's dark.
Q: Could you see his penis?
A: Like if I had to draw a picture of it, no. But the fact that I saw him from the waist down and he was naked from the waist down and when he took off, I could see his butt clearly.
Q: And is he dark complected at that location on his body as well?
A: Yes.
The prosecutor drew no connection between this examination (or her opening statement) and any proper purpose for the use of the race-based statements. Instead, the quoted colloquy regarding the defendant's race and skin tone was entirely gratuitous given that the defendant was in the courtroom during the trial. Never did the prosecutor explain why Robinson and A.M.'s different skin tones aided E.G.'s visual perception or were otherwise a proper consideration.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9 State v. Blanks, is instructive. There, the defendant (who, like Robinson, was African American) was charged with multiple crimes stemming from a violent argument he had with his White girlfriend. https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9During arguments to the jury, the prosecutor referred to Gorillas in the Mist (Universal Pictures, 1988), a movie about the behavior of gorillas. The prosecutor later asserted that he was merely trying to suggest that humans, unlike gorillas, must be subject to a rule of law. Id.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9  The Iowa Court of Appeals concluded that the prosecutor's reference to the movie, in which a "young white woman stands alone against   . . . black African hunters . . . [who] violently murder her," improperly injected racial overtones into the trial. https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9The court held that despite the prosecutor's "good faith intentions and what he claims to be an innocent remark, there is the prejudicial possibility that from the jury's standpoint an attempt was made to compare the behavior of the defendant with that of apes and gorillas." It concluded that it was the effect, not the intent, of the prosecutor's comments that unfairly prejudiced the defendant. 
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9  In our view, Robinson's prosecutor's statements were comparable to the prosecutor's conduct in Blanks. In the context of a sexual assault case, the prosecutor's graphic description of "a dark penis going into a White body" posed an unacceptable risk of poisoning the jury based on racial prejudice.
 https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9This nation is burdened with a tragic history of punishing Black men for sexual crimes against White women much more severely than White men who committed the same crimes. The prosecutor's statements echoed a time when judges instructed  juries that "they should presume no White woman in Alabama would consent to sex with a Black," that in determining whether an assault was made with intent to rape, the jury may consider that the woman assaulted was White and that the accused was Black, a now defunct rule applied as recently as 1953 in McQuirter v. State. https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9 
The more difficult question in this case is whether the prosecutor's statements and questions require reversal. Because Robinson did not object, we review only for plain error. Reversal is required if the misconduct was obvious and "so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction."
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9 We first conclude that the impropriety of the statements, given their lack of context that arguably might, under very unusual circumstances, have justified such race-based statements, was obvious. https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9Except under extremely rare circumstances, such racially based statements are, and have been for years,  totally off-limits in all courts in the United States.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9 We agree with the Attorney General that several circumstances may have mitigated the impact of the prosecutor's statements. First, "[a] passing reference in opening statements . . . may not be prejudicial in the context of a lengthy trial, and here the prosecutor's statements were brief and not repeated (although, as noted above, the prosecutor's direct examination of E.G. also addressed race). But Robinson's trial was not lengthy: excluding voir dire of the prospective jurors and deliberations, it lasted less than 2 days.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9 Second, courts recognize that a failure to object may demonstrate defense counsel's belief that the statement was not overly damaging.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9 Third, we acknowledge that the trial court instructed   the jury "not to allow bias or prejudice, including gender bias, or any kind of prejudice based upon gender" to influence its decisions, and "[w]e presume that the jury followed the court's instructions, absent evidence to the contrary." But other than the standard instruction on bias or prejudice (which focused on gender discrimination rather than racial discrimination), the trial court never admonished the prosecutor or instructed the jury to disregard the offending statements.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9  Fourth, the fact that the jury acquitted Robinson of all of the charges related to E.G. and the most serious charges related to A.M. suggests that it could fairly and properly weigh and evaluate the evidence without considering extraneous factors. https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9But this does not foreclose the possibility that racial animus nevertheless played a role in the jury's decision finding Robinson guilty of other serious sex crimes, particularly when the evidence of guilt in this case was not overwhelming. We observe that when the jury acquitted Robinson of  all of the alleged completed sex offenses against A.M., the jury necessarily rejected the most damaging portions of E.G.'s testimony--that she observed Robinson penetrating A.M. We do not know why the jury then convicted Robinson of attempted, not completed, sex offenses against A.M. This disconnect does not provide comfort that the jury's verdict was completely free of racial bias.
Notwithstanding the mitigating factors presented by the Attorney General, we conclude that the prosecutor's conduct requires reversal for four reasons.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9First, earlier this year, the U.S. Supreme Court again instructed the lower courts that we must treat errors implicating racial discrimination "with added precaution." "[R]acial bias implicates unique historical, constitutional, and institutional concerns." 
Second, we are mindful that racial bias operates on multiple levels. https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9The juror's statements in Pena-Rodriguez typify overt racial prejudice. But racial prejudice can be much more subtle and equally prejudicial. See, ("An invocation of race by a prosecutor, even if subtle and oblique, may be violative of due process or equal protection."); ("Bias often surfaces indirectly  or inadvertently and can be difficult to detect. . . . Affirming this conviction would undermine our strong commitment to rooting out bias, no matter how subtle, indirect, or veiled.").
Third, we also recognize, as have numerous scientists and academics, that principles of primacy may cause statements and arguments made early in a trial to have a disproportionately influential weight. See, for example, L. Timothy Perrin, From O.J. to McVeigh: The Use of Argument in the Opening Statement, https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9 Finally, in view of the unique concerns attendant to a prosecutor's appeal to racial prejudice, we agree with the Washington Supreme Court's conclusion that a comment such as the one at issue here "fundamentally undermines the principle of equal justice and is so repugnant to the concept of an impartial trial its very existence demands that appellate courts set appropriate standards to deter such conduct." 
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9 Although under the circumstances presented we cannot  know with certainty what impact, if any, the prosecutor's conduct actually had on the jury, the risk that Robinson did not receive a fair trial by unbiased jurors simply is too great to ignore. It is the responsibility of courts "to purge racial prejudice from the administration of justice." Only by reversing Robinson's convictions and giving him a new trial without racial taint can we discharge this responsibility.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9 To provide guidance on retrial, briefly address Robinson's argument that the prosecutor engaged in misconduct when she implied that Robinson was unfaithful to his girlfriend.
As noted above, at the time of the alleged sexual assaults, Robinson was in an intimate relationship with A.M.'s roommate. Robinson was also living with another woman at that time.
During direct examination of one of the investigating officers, the prosecutor proved that Robinson sent a text message apology to A.M.'s roommate after the alleged sexual assaults. The prosecutor then attempted to ask the officer about Robinson's relationship with the woman with whom he lived. She asked, "Did you later learn from [the woman] that  she thought it was?" Before any answer was given, Robinson objected, and the trial court sustained his objection.
During closing, Robinson argued that his text message apology was merely an admission that had acted improperly (but not criminally) when he attempted to have consensual sex with A.M. at a time when he was supposed to be with A.M.'s roommate.
In rebuttal closing, the prosecutor argued: "Vague, speculative, imaginary. Mr. Robinson's apologizing for trying to cheat on [the roommate]. That is why is he apologizing? You heard he lives with another woman." Robinson objected, and the trial court overruled his objection. The prosecutor went on to say,
He shares an apartment with [the woman]. He drives [her] car. And he's coming over to [A.M.'s roommate's] house at a quarter to 4:00 in the morning? He is not worried about what [her roommate] is thinking. He is [doing] exactly what he told you he was doing, getting some ass. And I am apologizing for using the crass words, but those were his words, not mine.
Robinson asserts that the prosecutor's statements insinuated that he was in an intimate relationship with and cheating on the woman he lived with, and that this insinuation   was irrelevant and unfairly prejudicial.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9 The prosecutor never stated that Robinson was in an intimate relationship with the woman he lived with because Robinson's timely objection prevented her from doing so. As for the reasons for Robinson's apology, "[p]rosecutors may comment on the evidence admitted at trial and the reasonable inferences that can be drawn therefrom." The prosecutor's argument that Robinson's text message to A.M.'s roommate was an apology for sexually assaulting A.M., not merely for requesting sex from A.M., was a fair response to Robinson's characterization of the text message apology. https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9.
 However, we agree that the nature of Robinson's relationship with the woman with whom he lived, and whether he might have been unfaithful to her, was irrelevant. The woman had nothing whatsoever to do with the charges in this case. The trial court apparently recognized this because it sustained an objection to such evidence during the testimony portion of the trial. The prosecutor should not have insinuated that Robinson was being unfaithful to the woman, especially after the trial court sustained the objection. On retrial, the trial court, upon proper objection, should limit  testimony and argument to that logically related to Robinson's apology.

Judge Furman, specially concurring.
 Racial prejudice has no place in our criminal justice system. Racial evidence or argument might have a place in proper context, though. The question in this case is when can parties introduce evidence or argument related to race without inviting racial prejudice. I agree with the majority that the judgment should be reversed and the case remanded with directions. I write separately, however, because it is my hope that should the Supreme Court review this case, it will give guidance on when, if ever, it is proper for evidence or argument related to race to be presented to the jury.
Both sides seem to agree that some circumstances, such as identification and evidence of race, might be relevant and serve a legitimate purpose. The prosecution contends that such a purpose was present in this case, while Robinson contends that "there was no need or legitimate reason for the prosecution to highlight Mr. Robinson's race." I agree with Robinson.  
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9 Among the most vital precepts of American law are equal protection and due process. Evidence or argument that improperly injects race into a trial risks denying a defendant both. As Justice Sotomayor recently noted, such evidence or argument is "an affront to the Constitution's guarantee of equal protection of the laws. And by threatening to cultivate bias in the jury, it equally offends the defendant's right to an impartial jury." 
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9 The eradication of racial considerations from criminal proceedings is one of the animating purposes of the Equal Protection Clause of the Fourteenth Amendment. https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9Our law demands that people be punished for what they do, not who they are. ("Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice.").
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9  Regarding due process, the jury is a criminal defendant's fundamental "protection of life and liberty against race or color prejudice." The right to a trial by a fair and impartial jury guaranteed by both the U.S. Constitution and the Colorado Constitution implies a verdict free from the admission of evidence  or argument that arouses the prejudices of the jury.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9  Evidence or argument related to race might provoke prejudices in the jury. Thus, a jury that has been misled by inadmissible argument or evidence cannot be considered impartial. Regardless of whether the prosecutor's appeal to prejudice was subtle or unintended, we cannot ignore "that references to race not intended to provoke prejudice may nevertheless do so." Sheri Lynn Johnson, Racial Imagery in Criminal Cases
 https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9But knowing the magnitude of the impact that evidence or argument related to race could have on the jury is impossible. As the U.S. Supreme Court recently explained, "the impact of [race-related] evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses."
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9 In this case, the prosecutor's remarks were particularly troubling because they echoed our country's history of prejudice toward Black men, particularly those accused of victimizing White women, where the prosecutor argued  that a White woman would never consent to sexual relations with a Black man.
The seemingly illogical verdict in this case is also troubling. E.G.'s testimony represented a large portion of the evidence against Robinson. Given that A.M. was unconscious at the time, E.G. was the only eyewitness to Robinson's acts against her and A.M. Yet, the jury, by acquitting on the sexual assault charges and the charges regarding E.G., apparently did not believe much of E.G.'s testimony. It nonetheless found Robinson guilty of attempted sexual assault (two counts) and unlawful sexual contact (two counts) against A.M. This outcome begs the question--was this a compromise verdict? And if so, was it poisoned by racial prejudice?
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9 Even so, I understand the State's position--evidence or argument related to race is sometimes relevant, even necessary, evidence. The State contends that "the impropriety of racially biased comments only extends to 'comments beyond the pale of legally acceptable modes of proof’," and that "[a]n unembellished reference to evidence of race . . . poses no threat to purity of the trial."
  Giving the prosecutor the benefit  of the doubt, Robinson's skin color, or rather the contrast between his and A.M.'s skin colors, might have been relevant to bolster E.G.'s testimony. Perhaps this explains why Robinson did not object and the district court judge did not interrupt during opening statement. But, when E.G. described how she was able to see that Robinson was penetrating A.M., she made no mention of Robinson's race, skin color, or any contrast between them.
 Then, for no proper purpose that I can identify, the prosecutor directly asked E.G. about Robinson's race and complexion. At that point, any potential relevance of Robinson's race had dissipated. This was not an identity case. A.M. knew Robinson, and Robinson admitted being there. And, E.G. did not point to Robinson's race as aiding her ability to view the act of penetration in any way.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9  Instead, the prosecutor's questioning simply drew attention to a characteristic that the Constitution generally commands the jury to ignore. Thus, as the majority concluded, the prosecutor's injection of race into]  the trial was improper in this case.
 Still, I recognize that there are cases where racial evidence or argument is relevant. As noted by both parties, race may be relevant where the prosecution has to prove the identity of the perpetrator. Race would likely also be relevant to prove motive for a particular type of hate crime. Yet, in what cases and to what extent evidence or argument related to race is admissible as a general rule remains unclear.
My primary concern is a fair trial for both sides. Fairness to a defendant means that his or her rights are protected. Most notably here, the rights to due process and equal protection of the law are essential. Due process necessarily includes a fair and impartial jury. Fairness to the prosecution and the people of the state of Colorado, on the other hand, requires that we not unduly burden the State by unnecessarily excluding relevant evidence.
  Our rules of evidence and procedure are designed to keep the trial fair. They prevent poisoning the jury with prejudicial, irrelevant, or unreliable information. The rules also give both sides adequate notice to prepare their cases effectively.
  https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9Still, evidence  or argument related to race is different. In a recent case, Justice Kennedy noted that "[a]ll forms of improper bias pose challenges to the trial process. But there is a sound basis to treat racial bias with added precaution." I agree that added precaution is necessary to prevent racial prejudice from entering a trial.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9Thus, the question is when can parties introduce racial evidence or argument without inviting racial prejudice. I agree with the Court of Appeal of Louisiana, Second Circuit, which stated that racial evidence or argument is improper and calls for a mistrial if it is "not material and relevant and might create prejudice against the defendant in the mind of the jury." Based on my review of the record, because the prosecutor's questions regarding Robinson's race had no relevance to a disputed issue at trial and might create undue prejudice against him in the mind of the jury, I agree with the majority that the case should be reversed and remanded for a new trial.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9But, to provide the added precaution to which Justice Kennedy alluded, I believe that addressing evidence or argument related to race pretrial would be more appropriate. Parties should give   notice of their intent to introduce evidence or argument related to race and should have to overcome a presumption that such evidence is irrelevant. A pretrial screening process would provide parties with clear guidelines of what is relevant and appropriate and help ensure that evidence or argument related to race is only used for a proper and limited purpose. Plus, parties' objections would be preserved, and the trial court's findings would be clearly recorded for appellate review.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9True, a witness might unexpectedly introduce racial evidence or comments during direct or cross-examination. Should this happen, I suggest the parties be afforded an opportunity outside the jury's presence to have the trial court determine what, if any, additional racial evidence might have a proper and limited purpose.
https://advance.lexis.com/document/midlinetitle/?pdmfid=1000516&crid=1437d96e-d6e7-4168-8ad8-f9326d2a587f&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5PYV-D6M1-F22N-X2S1-00000-00&pdcomponentid=4895&ecomp=87ttk&earg=sr1&prid=6587d65e-3bd3-4d99-9edc-f2a3bb61b3a9Our Supreme Court has drawn clear lines for other kinds of prejudicial evidence or argument. It is my hope that should the Supreme Court review this case, it will draw an equally clear line for racial evidence or argument in criminal cases.

You Decide 13.6
Carey v. Musladin, 549 U.S. 70 (2006).
On May 13, 1994, respondent Mathew Musladin shot and killed Tom Studer outside the home of Musladin's estranged wife, Pamela. At trial, Musladin admitted that he killed Studer but argued that he did so in self-defense. A California jury rejected Musladin's self-defense argument and convicted him of first-degree murder and three related offenses. 
     During Musladin's trial, several members of Studer's family sat in the front row of the spectators' gallery. On at least some of the trial's 14 days, some members of Studer's family wore buttons with a photo of Studer on them. Prior to opening statements, Musladin's counsel moved the court to order the Studer family not to wear the buttons during the trial. The court denied the motion, stating that it saw "no  possible prejudice to the defendant."… 
     In Estelle v. Williams and Flynn, this Court addressed the effect of courtroom practices on defendants' fair trial rights. In Williams, the Court considered "whether an accused who is compelled to wear identifiable prison clothing at his trial by a jury is denied due process or equal protection of the laws." The Court stated that "the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes, but held that the defendant in that case had waived any objection to being tried in prison clothes by failing to object at trial.                                                                                                                                                   
     In Flynn, the Court addressed whether seating "four uniformed state troopers" in the row of spectators' seats immediately behind the defendant at trial denied the defendant his right to a fair trial. The Court held that the presence of the troopers was not so inherently prejudicial that it denied the defendant a fair trial. In reaching that holding, the Court stated that "the question must be . . . whether 'an unacceptable risk is presented of impermissible factors coming into play’."                                                                                    
     Both Williams and Flynn dealt with government-sponsored practices: In Williams, the State compelled the defendant to stand trial in prison clothes, and in Flynn, the State seated the troopers immediately behind the defendant. Moreover, in both cases, this Court noted that some practices are so inherently prejudicial that they must be justified by an "essential state" policy or interest.                                                                                                                    
     In contrast to state-sponsored courtroom practices, the effect on a defendant's fair-trial rights of the spectator conduct to which Musladin objects is an open question in our jurisprudence. This Court has never addressed a claim that such private-actor courtroom conduct was so inherently prejudicial that it deprived a defendant of a fair trial.2 And although the Court articulated the test for inherent prejudice that applies to state conduct in Williams and Flynn, we have never applied that test to spectators' conduct. Indeed, part of  the legal test of Williams and Flynn--asking whether the practices furthered an essential state interest--suggests that those cases apply only to state-sponsored practices. 
    Reflecting the lack of guidance from this Court, lower courts have diverged widely in their treatment of defendants' spectator-conduct claims . . . Given the lack of holdings from this Court regarding the potentially prejudicial effect of spectators' courtroom conduct of the kind involved here, it cannot be said that the state court "unreasonabl[y] appli[ed] clearly established Federal law." No holding of this Court required the California Court of Appeal to apply the test of Williams and Flynn to the spectators' conduct here. Therefore, the state court's decision was not contrary to or an unreasonable application of clearly established federal law.