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To: Curt Marceille

From: Alma McCauley

Re: Matter of juvenile C.M.͛s contention of State͛s alleged improper seizure

Date: Monday, November 2, 2009

 


Was an officer͛s order for a juvenile passenger, C.M., and the driver to exit a vehicle during a
traffic stop motivated by a reasonable suspicion of criminal activity or a concern for his personal safety
due to the circumstances, thereby amounting to a constitutional stop within the meaning of the Fourth
Amendment, or was it motivated by C.M.͛s hostile attitude, thus constituting an improper seizure within
the meaning of the Fourth Amendment?

  

According to a similar Florida case,    , 671 So.2d 871 (Fla. 3d DCA 1996), an officer͛s
testimony that he had only made a prior observation of a conversation between vehicle passengers and
an African-American male, and neither was concerned for his personal safety during an apparently
lawful traffic stop, rendered the officer͛s subsequent discovery of cocaine unconstitutional within the
meaning of the Fourth and First Amendments.

Ñ   

On January 2, 2006, Officer Jones received a 911 emergency call concerning a liquor store
robbery. He responded, investigated the scene, and took the store owner͛s statement, including a
vague description that several children driving an unknown SUV, who threatened him with a gun, were
responsible for the robbery.

Hours later during his shift, Officer Jones saw the 2006 Cadillac Escalade that held C.M. and
three other children. Officer Jones thought the children he noticed may have been responsible for the
liquor store robbery, and followed the SUV until, frustrated after observing no traffic violations (except
for his later testimony that he noticed the SUV weaving on the side of the road), he pulled the vehicle
over without reason to support a pretext stop.
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He conducted the routine protocol of checking the license, registration, and insurance of the
driver alone, without any call for assistance. Officer Jones issued a citation after noticing the driver͛s
expired license, without question or mention of the robbery that motivated the stop. He testified the
angry passengers began to ͞mouth off͟ to him, claiming harassment, causing Officer Jones to fear for his
personal safety. He ordered the front two passengers out of the vehicle, without disturbing the rear
passengers. Upon opening the passenger door, Officer Jones noticed a revolver, and arrested C.M. for
possession of a concealed weapon.

  

In    , Florida͛s Appellate Court ruled an officer͛s discovery of cocaine on a vehicle


passenger resulted from an unconstitutional search, although the traffic stop that originated the search
was decidedly lawful.

R.H. was a passenger in a vehicle with three other passengers. The arresting officer, Officer
Orenstein, noticed a conversation between the passengers and an African-American male while stopped
on the road and decided to later follow the vehicle. The driver rolled through a stop sign, and Officer
Orenstein pulled them over, issuing a citation to the driver for violating his glasses requirement. R.H., a
minor, complained repeatedly about unjustified harassment from the officer, and Officer Orenstein
ordered him to exit the car. The officer testified that he was not concerned for his personal safety at
this time. The Appellate Court concluded that the traffic stop was lawful because it was concluded after
the occurrence of a traffic violation. On the other hand, the court further concluded that the
passenger͛s subsequent negative attitude and comments were protected by the First Amendment.
Additionally, the Court upheld the passenger͛s Motion to Suppress the cocaine because Officer
Orenstein͛s order to exit the vehicle was motivated not by a constitutional reasonable suspicion of
criminal activity or concern for the his own personal safety, but by the passenger͛s hostile attitude, as
testified to by the officer himself, in violation of the Fourth Amendment͛s rules regarding what
constitutes proper search and seizure.

In support of C.M.͛s assertion that Officer Jones conducted an improper seizure within the
meaning of the Fourth Amendment and the trial court erred in denying his Motion to Suppress, although
Officer Jones testified that he became fearful of his personal safety after dealing with the increasingly

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angry children, he never attempted to employ common procedure as a result, such as requesting back
up, or approaching the SUV with his gun drawn to protect himself, even when he suspected the SUV
may have held four armed robbers or when the passengers obviously became increasingly angry.
Instead of immediately ordering the SUV to pull over at the suspicion of robbery involvement, he
followed the SUV until he decided he no longer wanted to wait to observe an occurrence of a traffic
violation to lawfully stop the vehicle, making the traffic stop not pre-textual (   , 671 So.2d at
871). He also failed to order all four passengers out of the vehicle before commencing his unlawful
search of the vehicle, leaving the two passengers in the rear of the vehicle. His order seems to have
resulted from the irritation he experienced at the passengers mouthing off, and not from a reasonable
suspicion of criminal activity, which may have instead caused him to be instantly fearful of his safety the
very moment he suspected he was dealing with potentially armed robbers, as opposed to waiting until
the children mouthed off to make such a decision.

On the other hand, in support of the trial court͛s decision to deny C.M.͛s Motion to Suppress the
gun in favor of the State, unlike Officer Orenstein in R.H. v. State, 671 So.2d at 872, Officer Jones noticed
the four children travelling in the SUV, fitting the description provided by the liquor store owner of the
armed robbers, and then observed the SUV weaving on the side of the road. The officer had a
reasonable suspicion of criminal activity due to the 911 call and subsequent investigation. After the
stop, he testified he became fearful of his safety when it became apparent the children were angry and
started mouthing off to him. He wanted to maintain some measure of control over the situation, and
ordered only the front two passengers out of the vehicle as a result. According to the Fourth
Amendment, due to the robbery incident, he had a reasonable suspicion of criminal activity when he
noticed the vehicle. When he noticed the erratic driving, he had enough reason to initiate a pretext stop
and question the group. Once the children began to display a hostile attitude, this gave him even more
reason to become fearful, leaving him to lawfully search the vehicle, seize the gun, and arrest C.M.

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