Tuesday, October 30, 2018

Hunch after disproved hunch is not reasonable suspicion

Based on a tip from a "disappearing informant," officers hunched that a man they were surveilling was carrying paper bags of drugs into his garage. They stopped the man and frisked him. Nothing. They searched his van. Nothing. They searched his garage (including the paper bags). Nothing.

Despite their first hunch having been disproved, on a second hunch, the officers continued to question the man, eventually securing his "consent" to search his house, where they found drugs and a gun.

This evidence should have been suppressed, said the Seventh Circuit in United States v. Lopez, a well-analyzed opinion. A few highlights:

---"Requiring police to corroborate tips from identified but unproven informants is an important protection of individual liberty." The opinion includes a terrific, extended discussion of this requirement. While reasonable suspicion is a low bar, that bar has not slipped so low as to allow unreliable tips like this one to trigger the humiliating, involuntary seizures and sometimes violent encounters that we justify under the bland and familiar phrase 'Terry stops.'"

---"Instead of doing the police work required to substantiate the tip, the officers pounced as soon as they saw Lopez leave his garage." This stop violated the Fourth Amendment.

---"The authority to frisk is not automatic in a drug investigation." This frisk was illegal.

---"[N]o reasonable person in Lopez's shoes would conclude that one officer's words [you're free to go] meant more than eight officers' actions [functionally blocking his exit by their physical presence and by retaining his van, car keys, and cell phone]."

All in all, the Fourth Amendment violations here---a bad initial stop that was unreasonably continued---undermined the validity of Mr. Lopez's consent to search his house.

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