Constitutional Criminal Procedure - James P. Fleissner and Amy C. Reeder

• Publication year: 2000

Constitutional Criminal Procedureby James P. Fleissner*and

Amy C. Reeder**

I. INTRODUCTION

The field known as "constitutional criminal procedure" is one of the most dynamic branches of constitutional interpretation. Because most of the guarantees of the Fourth, Fifth, and Sixth Amendments have been incorporated into the Due Process Clause of the Fourteenth Amendment, the decisions of the United States Supreme Court interpreting the Bill of Rights have the effect of creating national minimum standards for both the federal and state criminal justice systems. Because every year there are many significant decisions in the field of constitutional criminal procedure, practitioners need to keep abreast of breaking developments. Of course, the Supreme Court decides only a handful of cases in the field each term. In the federalized world of constitutional criminal procedure, the United States Courts of Appeals are critically important interpreters of the key constitutional provisions. This Article surveys significant constitutional criminal procedure decisions of the United States Court of Appeals for the Eleventh Circuit handed down during 1999. In selecting "significant" decisions, we emphasize questions of first impression and other cases likely to be of interest to criminal practitioners. In keeping with the traditional format of this Article, we summarize the selected decisions and offer commentary that we hope will provide context and highlight the important aspects of the cases.

II. THE FOURTH 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.¹

A. Investigatory Stop and Frisk

The Supreme Court has held that brief investigatory seizures of persons and their effects are permissible if based upon an officer's reasonable belief that "criminal activity may be afoot."² This standard, commonly referred to as "reasonable suspicion," has been referred to as that "pint-sized version of probable cause required for stop-and-frisk."³ The Supreme Court has stated that reasonable suspicion cannot be precisely defined or reduced to neat legal rules or finely tuned standards designed for legal technicians.⁴ Rather, reasonable suspicion is said to be a commonsense, nontechnical conception meant for reasonable persons dealing with the practical considerations of everyday life.⁵ Thus, the requirement of a particularized and objective basis for a seizure, sometimes termed "reasonable articulable" suspicion, is a fluid concept that takes its substantive content from the particular context in which the standard is being applied.⁶ Once a Terry stop based on reasonable suspicion begins, the duration of the stop should be limited to the time "necessary to effectuate the purpose of the stop."⁷ However, the Supreme Court has eschewed any rigid "least intrusive means" test, observing that a court can almost always conceive of some less intrusive police action and that such a test would involve courts in "unrealistic second-guessing."⁸

The Eleventh Circuit's recent investigatory stop cases illustrate the fact-sensitive nature of constitutional challenges to a Terry stop. As the two cases below demonstrate, careful examination of the nuances surrounding each stop is part and parcel of the legal question of whether

II. THE FOURTH AMENDMENT there existed "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion."⁹ As such, the constitutional limits to investigatory stops are defined and redefined on a case-by-case basis.

In United States v. Simmons,¹⁰ the Eleventh Circuit held that detaining a defendant for seventeen to twenty-six minutes longer than the time required for a "routine" traffic stop was constitutional when the officers were attempting to ascertain whether defendant was the subject of an outstanding arrest warrant.¹¹ In Simmons defendant Bobby Gene Simmons was pulled over at 6:14 p.m. for failing to stop at a stop sign.¹² Thus, the initial stop was based on probable cause to believe Simmons had committed a traffic offense. In Whren v. United States,¹³ the Supreme Court stated that under the Fourth Amendment, a decision to stop a car is reasonable when the police have probable cause to believe that a traffic violation occurred, regardless of the officer's subjective motivation for making the stop.¹⁴ Accordingly, after Whren it is important for the courts to focus on the duration and scope of stops based on traffic violations when the stop may be a pretext to permit the officers to act on an ulterior motive.

After Simmons refused to consent to a search of the Pontiac station wagon he was driving, Officer Frix radioed for a drug-detecting dog and was told that none were usually available until around 7:00 p.m.¹⁵ While Officer Frix continued to seek a narcotics dog, Officer Rahmings wrote Simmons a traffic citation and ran a routine mobile computer check looking for outstanding arrest warrants.¹⁶

The computer turned up a worthless-check warrant for a "Bobby Simmons" in Brevard County. The physical description on the warrant matched that of defendant, but the birth date was different. The arrest warrant listed the subject's birth date as October 10, 1957; however, defendant's date of birth was August 23, 1953, making the subject of the warrant four years younger than defendant. Because of the discrepancy, Officer Rahmings attempted to determine whether the Brevard County warrant was actually for defendant. He radioed in the request and was put on hold; he used his mobile computer to request a teletype be sent to Brevard County; and he tried to contact his supervisor for instructions as to how to proceed. It was not until 7:32 p.m., forty-five minutes after the original stop, that Brevard County responded to the teletype, reporting that it had no further information about the Bobby Simmons listed on the warrant.¹⁷

While Officer Rahmings continued trying to determine whether the warrant was actually for defendant, a drug dog was dispatched to the scene. At approximately 7:00 p.m., the drug dog arrived and alerted on Simmons's car. The officers searched the car and found thirty small bags of cocaine under the driver's seat and a loaded handgun beneath a sheet of paper in the center console.¹⁸

The district court found that the police officers acted diligently in verifying whether Simmons was the subject of the warrant, and that there was no undue delay in that endeavor. Further, the district court found that the police acted diligently in securing the drug dog and that there was no unreasonable dely in getting the dog to the scene. However, the district court held that the officers lacked reasonable suspicion to believe that Simmons was the actual subject of the warrant and, accordingly, that the stop was an unconstitutional detention. It reasoned that the distances between where the warrant was issued and where Simmons was stopped, the differing birth dates, and the fact that the officers could have arrested Simmons later if the warrant turned out to be correct, gave rise to insufficient grounds for reasonable suspicion.¹⁹

The Eleventh Circuit reversed, holding that there was reasonable suspicion for the continued detention.²⁰ Although the court of appeals accepted the lower court's factual findings, it concluded that the totality of the circumstances weighed in favor of reasonable suspicion justifying the detention.²¹ The court refrained from second guessing²² officers at the scene, noting that "reasonable suspicion 'does not deal with hard certainties, but with probabilities.' "²³ The court held that it was legal for the officers to run the routine computer check for warrants and that even with the indicia that defendant may not have been the same Bobby Simmons as the subject of the warrant, it was not unreasonable for the officers to hold defendant for seventeen to twenty-six minutes to investigate.²⁴ The argument that the police officers could have arrested Simmons later if the warrant was determined to be for him was quite rightly dismissed by the court as having no basis in law.²⁵

The court of appeals concluded that "the length of the delay consumed in the conduct of the investigative detention must have been 'sufficiently limited in scope and duration to remain within the bounds' permitted by Terry."²⁶ The court held that the law enforcement purpose of determining whether Simmons was the subject of the warrant was done in a way ' "that was likely to confirm or dispel their suspicions quickly, and with a minimum of interference.' "²⁷ Also, it held that the scope and intrusiveness of the detention was relatively minor because Simmons sat in his own car during the stop.²⁸ Lastly, the court looked to its own precedent in United States v. Hardy,²⁹ which held that a fifty-minute investigative stop was not excessive under the circumstances, and held the seventeen to twenty-six minutes that it took the officers to check on the warrant was not an excessively long detention.³⁰ Simmons clearly demonstrates the potent combination punch provided to law enforcement by Supreme Court decisions in the areas of pretextual stops based on traffic violations, the permissible temporal scope of such stops, and the use of drug-detecting dogs.

In United States v. Pruitt,³¹ the court confronted another traffic-stop scenario, but this one was complicated by concerns that the police had engaged in a form of "racial profiling."³² In Pruitt the Eleventh Circuit reversed the convictions of two defendants to the extent that the convictions turned on an unconstitutional detention and search.³³ The court held the police officer's continuing detention of the two Hispanic defendants was an...