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Court: Shifting car from P to D during traffic stop good enough reason for cops to search car full of suspected gang members
By adamg on Fri, 08/14/2015 - 11:16am
The Supreme Judicial Court ruled today Suffolk County prosecutors can use a gun found in a car occupied by suspected gang members as evidence in a trial against two of them on gun charges.
A lower-court judge had tossed the gun, found under the front passenger seat during a traffic stop at an I-93 ramp on Surface Road, as evidence, saying the three men and one woman had done nothing suspicious enough to warrant a "protective" search of their car after police stopped it because the driver had failed to signal a turn.
But the state's highest court, noting that police recognized two of the men as having criminal records, and that police were tailing the car after a party at a Theater District club by Annunciation Road residents who had a violent beef with Orchard Park residents, said one of the two men did provide enough of a reason for police to search the car:
First, Jason Douglas got out of the car without the cops' permission - to argue about being stopped - and then, when he got back into the front passenger seat as police talked to and frisked the rear-seat occupants, he shifted the car's transmission from Park to Drive. The car didn't move because the driver still had her foot on the brake, but one of the officers noticed the shift change and ordered him to shift the car back.
Douglas's subsequent conduct in leaving the vehicle unbidden and, when he was ordered to return to his seat, in shifting from "park" to "drive," considered in the totality of the circumstances and in light of other information known to the officers, provided reasonable suspicion that Douglas had a weapon either on his person or within reach inside the vehicle, and therefore that the exit order and patfrisk of Douglas, and the protective sweep of the vehicle underneath the seat he had occupied, were permissible.
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| Attachment | Size |
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 Complete ruling, Commonwealth vs. Jason Douglas | 99.38 KB |
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Comments
Sigh
It's just lovely to see the courts continuing the process of shredding the fourth amendment over these last three decades.
Tell that to the innocent victims who were just slaughtered...
by gangbangers who were probably out waiting trail for similar gun related crimes.....
I'm sorry
The guilt (or lack thereof) of specific parties is immaterial. It's too bad the Constitution of these United States is so inconvenient for you.
Not really immaterial if you use reason.
Reason will tell you that arresting a gang member and charging him with a firearm offense may save someones life.
Also the Constitution doesn't really address frisks of motor vehicles, so the judicial system (that is outlined in the Constitution) gave the government outlines as to how these frisks must be applied. So yea, the Constitution was adhered to in this instance.
Uh
It doesn't matter if arresting a gang member and charging him (or her) with a firearm offense will save someone's life. It's still a violation of the 4th. Or it was, until 1987 or so.
The 4th doesn't address motor vehicles because it doesn't have to. It addresses ALL searches.
4th Amendment:
"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."
Where are you getting 1987 from?
Before the Warren court (1953-1969), this case wouldn't have even been appealed. But after the Warren court decision, other automobile case laws made it apparent that obtaining a search warrant is basically impossible without risking the loss of evidence (automobile exception) Comm. V. Markou, Rakas v. Illnois, etc.
And again, this wasn't a search, it was a protective sweep of an area that may have contained weapons that could hurt police officers.
.
I can look up the citation later, but it was a Reagan-era (or maybe Bush I?) SC decision that opened the door to traffic stops to fish for cause to search, as happened here.
And "protective sweep" is what you call a search that you can't legally call a search. A convenient equivocation.
It was actually 1925.
https://en.wikipedia.org/wiki/Carroll_v._United_States
No
That is a substantially different situation than the one I described, since the vehicle was already under suspicion for illegal activity beyond the immediate cause for the stop. Do try to keep up.
Carrol is the beginning of it all.
The court said you don't need a warrant to search a car. Do you want me to list the hundreds of other cases which back these warrantless searches?
Ok
I understand this is difficult for you, but please try to read all the words.
In the case you linked, the court ruled it was acceptable to search a vehicle without a warrent where there was reasonable cause to believe there was something in the vehicle (from prior police work, not from the behavior of the driver) that was illegal.
This is substantially different than pulling over a vehicle in order to effect a warrentless search of that vehicle where there has been no such prior suspicion established, which is the more modern innovation.
Is that clear, or should I resort to visual aids?
Ok, Mostly..
You need to go back and reread the post. The police were trailing this car before it was stopped for failing to signal (i.e. reasonable/probable cause).
The cops just did not pull over the vehicle because, heck, they have nothing better to do (i.e. the driver failed to use his/her turn signal). And police recognized that two of the three men had criminal records (reasonable/probable cause).
There is nothing indicated in the post that any of the officers were acting in a racist manner. So, let us try not to create a reality that is apparently not present, ok?
And, BTW, no need to be snarky to Pete. He is right on the money.
Uh
If you'd been paying attention, you'd see I've been deliberately avoiding the discussion of race here.
The police officers were trailing the car because its occupants had been in an area that a fight had occurred (not illegal, not reasonable/probable cause) and they knew the occupants had criminal records (not illegal, not reasonable/probable cause). The police, in other words, had no reason to suspect the car was involved in any sort of illegal activity, and therefore had no probable cause to suspect the vehicle contained anything that might disappear if the search was not effected immediately. Heck, even the cops knew this. That's why they "performed a safety sweep" and didn't "search".
I'm glad we agree that "the cops just did not pull over the vehicle because, heck, they have nothing better to do (i.e. the driver failed to use his/her turn signal)."
Ha. Nice to see this is bothering you.
You are the one who made up a year and then tried to blame it on Regan or Bush (After you brought up the 4th amendment and tried to use it as a basis for this being an illegal search which was refuted). Case law on frisks pretty much start in 1968, protective sweeps have all sorts of different case laws, some outlines by MA courts in reference to our own states Constitutional Articles (specifically 12 and 14). It's on you to bring the cases or case laws you want to refute, not me.
Seriously
Reading comprehension is a pet peeve of mine.
Read all the words. I blamed neither Reagan nor Bush, although both (along with Clinton, Bush II, and Obama) bear responsibility since this is all tied up in the prosecution of the War on Drugs. I blamed the Supreme Court.
Not all of us have a legal library at our fingertips. I'll look up the reference when I have time.
Ah
Here it is. A bit later than I remembered.
https://en.wikipedia.org/wiki/Whren_v._United_States
Whren has to do with seizures, not searches/frisks/sweeps
And although this case here has several legal issues (you and I both jumped around on several of them), the seizure wasn't really in question. It also wasn't an ordinary traffic stop, the police already had reason to believe that the occupants were dangerous, and the court backed them up on it (with additional factors like putting the car in drive, getting out of the car, etc).
I get it. You don't think the police should enforce traffic laws if they are looking to search the car for other reasons. That's fine.
Uh
"I get it. You don't think the police should enforce traffic laws if they are looking to search the car for other reasons. That's fine."
So what are we arguing about, then?
Two things...
First, you seem to think the cops were not allowed to pull people over as a pretext for a stop/search until the Whren case. You said it was a violation of the 4th Amendment unti 1997.
That is completely false. The Whren case simply said that cops were always allowed to do this, and the court affirmed that what the cops were doing was within the paramaters of the 4th Amendment.
Second, you seem to think the Constitution is inconvenient for me. It is very convenient because it keeps me and my family safe from stray bullets from gang bangers because courts use common sense and don't take your literal approach to the Constitution.
Wait a second
Guilt or lack of truly is immaterial to the protections of the 4th amendment. There can be no argument on this.
While ignoring the 4th amendment to arrest a dangerous person who may go on to kill someone may save a life (as you point out), that is not an option we, as a society, have given to law enforcement.
Unfortunately that's not how
Unfortunately that's not how the justice system works. You can't lock me up for something I might do tomorrow as much as you can't lock me up for something someone else who looks or dressed like me did yesterday.
Unfortunately
Clearly, that is how the justice system currently works.
That wasn't my point but I'll expand....
Firearm laws are designed for this very purpose. They are designed to keep criminals with dangerous intentions from possessing items that allow them to potentially kill other human beings. Without these possession laws, it would be impossible to protect those at a future date from these criminals and their firearms.
Yep.
And you've got to ignore the 4th amendment to do it.
Ignore?
You know the word "unreasonable" is in the 4th amendment. That's your problem if you want the definition of that word to be up to MostlyHarmless.
I'm going to guess most Americans want the judicial system to decide what is reasonable or unreasonable (in terms of searches as outlined in the US Constitution)
Your opinion is noted however.
Most Americans
haven't spent 10 seconds of their lives thinking about the subject.
Sooooo
they should give up representative democracy and let you make the rules?
Not what he's advocating
He's advocating for locking you up for something you *did* today so that you don't have the opportunity to do what you were going to do tomorrow. As long as he has you dead to rights on something you did today, I don't see where he's wrong.
Gotta prove it
You can't just go around searching people for evidence that they did something early today without legally sufficient basis to conduct the search.
First, you have a basis for the search, then you do the search, then you find the proof of the crime from earlier in the day. Without the first step, you have a 4th amendment violation.
They had a legal basis Rob....
According to the court.
Yes, they did
I acknowledge the finding of the court in this case. In fact, I agree with it.
But it is critical that there be a legal basis for the search. I interpreted your first comment as suggesting the ends justified the means.
No I didn't mean that, I expanded on it above a little.
Firearms laws are in place so criminals with bad intentions don't hurt people in the future. The search/seizure is a separate issue.
Yes, it is
There is no dispute about the firearms violation. The issue here, for the Supreme Court and for MostlyHarmless, is about the legality of the search.
As that is the issue, I don't understand why you are talking about why our firearms laws are the way they are. I understand they prohibit possession by certain people to prevent future crimes. That is NOT the issue here.
Your response to MostlyHarmless's initial comment about the "shredding" of the 4th Amendment was about the victims of others who were out (on bail?) for similar gun related crimes. That's comment is not about firearms laws. That's either a snide comment about the existence of bail (separate topic), or you are suggesting that Mostly's concern about the 4th Amendment should be trumped by the safety concerns of gun victims.
It means....
That the people who are dead are probably fine with the seizure and frisk that happened in this case here. They would probably find this search reasonable under the 4th Amendment (since the 4th Amendment allows reasonable searches without a warrant). They would probably be fine with police officers stopping a car for a turn violation for gang bangers who might kill someone if not taken off the street.
Thank God We Don't Make Policy That Way
Yes, the family of someone illegally killed with a gun probably would trade everyone's freedoms to have their loved one back. Your suggestion that this is somehow relevant to policy-making, or discussion of enforcement of the Bill of Rights is just ....
You are missing the point.
I'm not saying they would trade everyone's freedoms (although they probably might). I'm saying they would probably like to see the 4th Amendment interpreted the way Judges, courts and I like to see it interpreted rather than Rob O. and Mostly Harmless.
And yea, "policy" (or in this instance, case law) is made that way.
Ha!
I'm not missing the point. You're trying to backpedal away from what you said. But since I think we actually agree on the substance of the interpretation, I'll leave it at that.
No, like I said, I was trying to expand on my first comment.
Which wasn't that complicated I didn't think.
That's exactly what this is about
Not earlier today. Right now. Right in front of you. They stopped the car. The guy triggered the concern for immediate exigency by putting the car in drive. They prevented the opportunity to flee which then gives them the right to search. They found a gun they shouldn't have legally had. That's a crime right then and there.
The basis of the search is the fact that cars provide an ease of ditching evidence not found under any other facet of being in public while committing a crime. So, the courts have found that as a result, the mere nature of doing things like starting your car during a traffic stop or putting it in gear allow officers to fully search you as if you started to run from them during a terry stop.
Again
I'm not disagreeing with the decision here. I largely agree with your analysis too.
My point is that "innocent victims being slaughtered" by these defendants, now or later, has zero to do with the legality or appropriateness of the search.
Normally I'd agree with you,
Normally I'd agree with you, certainly the courts have gutted our 4A rights. But in this particular case, it seems to me they got it right... getting out of the car is an aggressive move, and shifting into drive could indicate intent to flee.
Sure
But the stop should never have happened. A traffic stop for failing to signal? In Massachusetts? A clear pretext to search the vehicle. That should have thrown the whole thing out. Unfortunately, the SC took care of that back in the 80s.
Uh, what?
If you fail to signal, you run the risk of being pulled over for a moving violation. Just because that risk is low or selectively applied doesn't mean you didn't do anything legally wrong that validates being stopped if they so choose to stop you.
Now, if the cops are being racist or somehow discriminatory in how they apply the law, that's a different problem and to be addressed at the system level, but it doesn't invalidate the fact that they were rightfully stopped in this instance.
I mean
Traffic stops for this sort of thing are ABSOLUTELY racist. That's a different point.
If you think that the cops accidentally pulled over this car and just happened to find a gun, you're delusional. And creating a traffic stop in order to obtain the pretext to search the vehicle used to be a violation of the 4th.
Are you suggesting they signaled?
*Creating* a traffic stop is a violation.
Stopping someone and saying "we got a call that you didn't stop at a stop sign 10 minutes ago...hey, any of you have a gun?" is bullshit.
Watching them commit a moving violation and then saying "we just saw you turn without signalling...hey, put it back in park! You're getting ready to flee, you're under arrest" is a completely different action and isn't a violation of your 4th Amendment rights at that point given immediate exigency (you can immediately drive away with the evidence of your crime).
We get it. You don't like immediate exigency and you think that everything you do in quasi-private in your car is yours to do unless they get a warrant. But if they go get a warrant, then we're either going to have a lot of cars in the impound lot while they wait for the warrant to search it or a lot of people committing crimes getting to drive away while a warrant is sought...and then *poof* no crime since you were able to leave with the evidence that justified the warrant!
There's an impracticality to saying we need warrants for searches in cars as if it was the same as your house, but not if you'd committed the same crime as a pedestrian. How do you expect cops to stop a crime like unlawful possession of a weapon if they have to get a search warrant to check the surroundings of your car's interior? Let's just wipe that one off the books instead? What's your solution? I'm hearing you complain about losing 4th Amendment privilege but not how we stop crimes occurring right in front of the cop's face because getting a warrant and dealing with the ease of driving away and ditching the evidence don't mesh in reality.
Are you being deliberately obtuse?
"Creating" - as in, doing it when you otherwise would not. I have failed to signal my turns many, many times in front of cops. I have never received any sort of ticket or stop. Have you? Has anyone on this forum?
I understand the impracticality of obtaining a warrant for a vehicular search. That is in no way, shape, or form my objection.
Sometimes they are racist, not so much here.....
Since they knew who they were looking for.
Uh
When they're racist, they know who they're looking for, too.
Hint: it's the black people.
Hint: This is the gang unit.....
They work in black neighborhoods, and they deal with black people.
And no, when they are racist, they are just looking for black people and don't know their names. This case is about gang unit members who were following known gang members who they knew by name.
Wow.
I agree with you on the frisking
of passengers for a turn signal violation - sure sounds like Driving While Black. However, shifting the vehicle from P to D was suspicious and dangerous, indicating an intention to flee, so I'd give them that find.
Really?
I'm a pretty big 4a supporter and would question searches in some circumstances.
But
seem to indicate this was no normal traffic stop.
BTW, other important news stories today are about 5 tragic shootings this week. Bravo to the cops in this case.
Of course it isn't
a normal traffic stop. Imagine if it was *normal* that MA police pulled over people for failing to signal.
Read the ruling
It says on page 1 they were under surveillance due to being known gang members with prior firearm convictions and known to be involved in an active gang feud. Not Racist
Passenger
Also to note one of the passengers has since been arrested for murder as has Douglas' brother. Use the Google on all these fine gentlemen involved in this. Also remember a few months ago the downtown fight vs the BPD where multiple guns were recovered and Mission Hill & Orchard Park gang members were arrested and present.
https://www.youtube.com/watch?v=lxskx6TwSJo
https://www.bostonglobe.com/2012/10/18/three-charged-including-year-old-...
https://www.youtube.com/watch?v=yBFMqrQAx3g
Also remember how many shootings have resulted either at or leaving Chinatown restaurants at 3:00 AM?
Good stop / good arrest good guys to have off the street.
You know how in old TV shows
You know how in old TV shows whenever someone gets stopped by a cop, they would step out of the car and speak to the cop face to face? I assume that's how it was in real life, not just on TV. Now you step out of your car, the cop is supposed to react like you're threatening their life.
A couple of years ago I was in a foreign country when my cousin got stopped by a cop over a red/yellow light. He jumped out of the car to argue. I got all nervous thinking the cop was going to pull out a gun and arrest him for doing that. Then after a few minutes I realized that this is how it works, and how over the past 40 years, police in the USA have become so much less English and so much more German.
German, or include Central and South America.
In those countries, drivers will often take the keys and put them on the roof, and no, they don't get out of the car, nor should they.
Police techniques on traffic stops in the US changed in the 1970s when officers were getting killed on traffic stops at an increasing rate. The "triangle of death" was the area from the drivers window back at an acute 45 degree angle where a driver would be able to shoot someone approaching. This is why you see officers stay tight to the car and not come up to the window face to face.