I spend so much time bemoaning the loss of our constitutional rights, in particular the beloved Fourth. It’s gotten so bad that these days I feel a bit of the rebel when I quote it verbatim in motions and briefs.  In case you haven’t seen it in a while, here it is in all it’s glory:

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.

That seems pretty self explanatory, right?  I mean, it says that you are not to be subjected to an unreasonable search, and that warrants will only be issued by probable cause.  It’s unfortunate though, that the founding fathers left us to our own devices in determining what they meant by ‘unreasonable’ and ‘probable cause’ since, well, it seems these days just about anything is considered a reasonable search and warrants are issued on whim and caprice and because a cop asked for one.  However, this week, the Fourth Circuit, in case called U.S. v. Foster,  pushed back and said hey, listen, we give you a ton of leeway in violating people’s rights conducting your investigations, but you need to cut it out, Government, and actually have SOME reason to search a person’s car.

Ok, let’s step back and give you the facts in this case, they are pretty simple and straightforward.  Police officer Ragland is having lunch with his wife.  He walks back to his car and notices a black male sitting in an SUV.  As he continues to walk he sees the black male’s mouth move and then another person pops up out of the passenger side and the passenger’s arms start moving (going ‘haywire’ the cop says, although he can’t actually see the arms above the elbow).  Ragland recognizes the passenger as David Foster, see the cop used to date Mr. Foster’s cousin and so they knew each other.  Also, Ragland had arrested Mr. Foster on some traffic stuff and knew he’d been arrested for marijuana.  Ragland walks by the SUV and says hi to Mr. Foster and asks what they are doing.  The response is something innocuous “chilling” or some such phrase.  Then, for some reason Detective Ragland goes to his car and calls in to another officer and finds out Mr. Foster is under investigation – for what is not clear.  So, cop 2 shows up and Ragland and cop 2 block the SUV and search it.  Inside they find cocaine, scales, and all sorts of other bad stuff that people are not allowed to have.

We’ve gotten so used to shit like this going on that it frequently doesn’t phase us.  We file the suppression motions and judges hardly ever rule in favor of a fourth amendment violation – there are always exceptions and reasons why the ends actually justify the means.  We used to call it ‘the very bad man rule’.  If there is a way to keep contraband in, despite a seemingly obvious constitutional violation, they will.  And, this case was no different.  Despite the fact that all Ragland saw were two black males sitting in an SUV, the court determined this was enough to stop and search the car.

Let me back up for the uninitiated amongst us.  The law permits an officer to make what’s called an ‘investigative stop’ only if supported by a ‘reasonable, articulable suspicion that the person seized is engaged in criminal activity’  This means that the police officer has to actually point to things that are suspicious in order to stop someone.  Like, they have to be able to formulate a cohesive thought and say why, not just ‘well, I think it seemed kinda off” In this case, the officer said that he saw the driver’s mouth move, then the passenger popped up and his arms were moving.  And then they blocked them in and searched the car.  The Appellate Court said no way, jose. No. Way.  They chastise the government:

We also note our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity. We recognize that we must look to the totality of the circumstances when evaluating the reasonableness of a stop. Arvizu, 534 U.S. at 273. However, an officer and the Government must do more than simply label a behavior as “suspicious” to make it so.

At long last, they are saying just using the word ‘suspicious’ isn’t enough.  Because that’s what happens.  They say the movements were ‘furtive’ and they were looking ‘suspicious’ and VOILA, you get the big ok to search. The  Court goes on to state:

Moreover, we are deeply troubled by the way in which the Government attempts to spin these largely mundane acts into a web of deception. Although these matters generally only come before this Court where a police seizure uncovers some wrongdoing, we would be remiss if we did not acknowledge that the exclusionary rule is our sole means of ensuring that police refrain from engaging in the unwarranted harassment or unlawful seizure of anyone—whether he or she is one of the most affluent or most vulnerable members of our community. See Terry, 392 U.S. at 12-13 (“Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions.”). We appreciate that police are often called upon to make very difficult decisions about when to conduct Terry stops, and, for that reason, we give them leeway to make these determinations. Nonetheless, the Government cannot rely upon post hoc rationalizations to validate those seizures that happen to turn up contraband. See United States v. Martinez- Fuerte, 428 U.S. 543, 565 (1976) (noting that a purpose of the Fourth Amendment is to “prevent hindsight from coloring the evaluation of the reasonableness of a search or seizure”) 

This is strong language from a Circuit that isn’t know to be the friendliest to defendant’s, nor the most lenient when it comes to issues such as these, but it may seem that for now, there are signs of life for the Fourth Amendment.  Let’s hope it can stay with us for a good while longer.