U.S. vs. Calvin Watson

The defendant appeals from
his conviction for illegal possession of guns and ammunition,
for which he was sentenced to six years in prison.
The only question is the legality of the seizure of the
weapons, which were essential evidence of his guilt.

A police officer received an anonymous tip that a black
man was dealing guns out of the trunk of a maroon
Dodge Intrepid driven by a white woman. The word “tip”
is a misnomer, since the tipster, who claimed to have
actually witnessed the criminal activity, had talked to
the police officer by phone for an hour, giving a wealth
of detail about the car and its occupants. He refused to
give his name on the ground that he feared retaliation
by the criminal community (which, he said, had happened
to him once before), but he gave his phone
number and other information that would have made it
a cinch for the police to identify him. The police located
a maroon Dodge Intrepid driven by a white woman
with a black male passenger (the defendant) and
ordered the driver to stop, which she did. Six police
officers approached the car with guns pointed at the
occupants, whom they ordered to leave the car and walk
backwards toward them. The driver consented to a
search of the car, which the police knew from a computer
check of the license plate was hers, and they
found the weapons in the trunk.

Anonymous tips have often been held to be an insufficient
basis by themselves for a finding of reasonable
suspicion that would justify a stop. E.g., Florida v. J.L.,
529 U.S. 266 (2000); United States v. Robinson, 537 F.3d
798, 802 (7th Cir. 2008); United States v. Brown, 401 F.3d
588, 595-96 (4th Cir. 2005). But there is no flat rule that
such a tip can never provide a valid basis for such a
finding, especially since the fact that a tipster gives a
name doesn’t negate the possibility that the tip is anonymous;
the name may be a fake. United States v. Wooden,
551 F.3d 647, 649 (7th Cir. 2008). The tip in this case,
moreover, was only quasi-anonymous, since the police
could easily have identified the tipster—and that is important.
Edwards v. Cabrera, 58 F.3d 290, 294 (7th Cir. 1995);
United States v. Andrade, 551 F.3d 103, 110 (1st Cir. 2008)
(per curiam); United States v. Casper, 536 F.3d 409, 414-15
(5th Cir. 2008). A tip i s less likely to be malicious
or irresponsible if the tipster knows that the police can
find him, United States v. Kent, 531 F.3d 642, 648-49 (8th
Cir. 2008), though there is always the possibility that
the identifying details are fake.

And the amount of detail the tipster gave the police,
much of which they were able to corroborate, was
evidence that the tipster had indeed seen the car and its
occupants. See United States v. Torres, 534 F.3d 207, 210-11
(3d Cir. 2008). It remained conceivable that he could
have fabricated his witnessing of gun dealing, but that
was not so likely as to deprive the police of reasonable
suspicion that the car contained weapons, see United
States v. Hicks, 531 F.3d 555, 560-61 (7th Cir. 2008); United
States v. Vongkaysone, 434 F.3d 68, 74 (1st Cir. 2006); United
States v. Johnson, 364 F.3d 1185, 1191 (10th Cir. 2004);
compare United States v. Monteiro, 447 F.3d 39, 46 (1st Cir.
2006)—as of course it did.

The icing on the cake is that the police did not stop the
car until they observed a violation—the rear license
plate was not illuminated, as state law required—which
gave them a legal basis for stopping the car. That they
would not have stopped it had they not suspected a
more serious violation—as they obviously did, or they
would not have approached with drawn and pointed
guns—is of no moment. Arkansas v. Sullivan, 532 U.S. 769,
771-72 (2001); Whren v. United States, 517 U.S. 806, 813
(1996); United States v. Franklin, 547 F.3d 726, 733 (7th Cir.
2008); United States v. Stachowiak, 521 F.3d 852, 855 (8th
Cir. 2008). And for further icing we note that the driver
consented to the search, as she had every right to do
because it was her car.

The defendant argues that even if the police could
lawfully stop and lawfully search the car, they had no
right to frighten him by pointing their guns at him. There
are cases in which, although the police have every right
to conduct a search or arrest a person or seize property,
the manner in which they do so violates the Fourth
Amendment. The usual case is that of the use of excessive
physical force to effect an arrest. E.g., Graham v.
Connor, 490 U.S. 386 (1989); Walker v. Sheahan, 526 F.3d 973,
978-79 (7th Cir. 2008); Parker v. Gerrish, 547 F.3d 1, 4-5 (1st
Cir. 2008); Gill v. Maciejewski, 546 F.3d 557, 561 (8th Cir.
2008). But the “excess” might consist of threats that put
the arrested (or stopped) person in fear of bodily harm.
Dorsey v. Barber, 517 F.3d 389, 401-02 (6th Cir. 2008).

The defendant’s case is weak; since the police had
reasonable suspicion to think they were approaching an
illegal seller of guns, who had guns in the car (and not
necessarily just in the trunk of the car), they were
entitled for their own protection to approach as they did.
E.g., United States v. Hensley, 469 U.S. 221, 235 (1985);
United States v. Askew, 403 F.3d 496, 507 (7th Cir. 2005);
United States v. Fisher, 364 F.3d 970, 973 (8th Cir. 2004). But
in any event, had they used excessive force his
remedy would be a suit for damages under 42 U.S.C.
§ 1983 (or state law) rather than the exclusion from
his criminal trial of evidence that had been seized in an
otherwise lawful search. Christopher Slobogin, “Why
Liberals Should Chuck the Exclusionary Rule,” 1999 U.
Ill. L. Rev. 363, 401-02 (1999); cf. William J. Stuntz, “Privacy’s
Problem and the Law of Criminal Procedure,” 93
Mich. L. Rev. 1016, 1072 (1995). As in Hudson v. Michigan,
547 U.S. 586 (2006), where the Supreme Court ruled that
a violation of the rule that (where feasible) the police
must “knock and announce” their presence before
breaking into a house that they are authorized to search
does not justify suppression of the evidence found in
the (otherwise lawful) search, there is no causal connection
between the manner in which the police approached
the defendant in this case and the search of
the car that disclosed the weapons used in evidence
against him. Had they said or done nothing to him,
drawn and pointed no guns, but merely asked the driver
for consent to search the car, the evidence would have
been discovered.

Even closer is United States v. Ramirez, 523 U.S. 65, 71
(1998), where we read that “excessive or unnecessary
destruction of property in the course of a search may
violate the Fourth Amendment, even though the entry
itself is lawful and the fruits of the search are not subject to
suppression” (emphasis added). We thus disagree with
the dictum in United States v. Ankeny, 502 F.3d 829, 836
(9th Cir. 2007), which flies in the face of Ramirez, that the
use of excessive force in the course of a search can
require suppression of the evidence seized it.

This is not even a case of inevitable discovery, as
where the police obtain evidence by means of an illegal
search but if they hadn’t violated the law they would
have obtained the evidence lawfully, and on that
ground the evidence is admitted. E.g., Nix v. Williams,
467 U.S. 431, 444 (1984); United States v. Tejada, 524 F.3d
809, 813-14 (7th Cir. 2008). There was no causal connection
in this case between the alleged police conduct
and the obtaining of the evidence that the defendant asks
us to suppress. The police didn’t obtain the evidence
by pointing their guns at the defendant, but by obtaining
the consent of the driver. And even if the police obtained
her consent by intimidation (a question we need
not and do not address), the defendant cannot object.
He was just a passenger; he claims neither a property
nor a possessory interest in the car, so even an illegal
search of it would not have infringed his Fourth Amendment
rights. Rakas v. Illinois, 439 U.S. 128, 133-34 (1978).

Application of the exclusionary rule would be particularly
gratuitous in this case because the defendant has
an adequate remedy by way of a civil action—a remedy
better calibrated to the actual harm done the defendant
than the exclusionary rule would be. United States v.
Sims, 553 F.3d 580, 583-84 (7th Cir. 2009). If he was frightened
by police officers’ using excessive force (the force
wasn’t excessive, but for completeness of analysis we
are assuming for the moment that it was), a jury will
assess the damages that are required to compensate
him and deter the police from future such misconduct.
To exclude the evidence on which his conviction was
based would return a gun dealer to his life of crime, and
the cost to society might well exceed the damages that
a jury or judge would award him for his fright. In
short, when evidence is lawfully seized, police misconduct
collateral to the seizure does not trigger the application
of the exclusionary rule. For “the fact that a
Fourth Amendment violation occurred . . . does not necessarily
mean that the exclusionary rule applies.” Herring
v. United States, 129 S. Ct. 695, 700 (2009).
The judgment is therefore
AFFIRMED.

Chicago Criminal Lawyer - Robert J Callahan