A member of the Oakland (Calif.) Police Department’s arson and K-9 unit uses his dog to search the trunk of a car parked at the yacht harbor in Sausalito, Calif. Photo AP/Eric Risberg
FEATURED IN INVESTIGATION
In my August column, I addressed pretextual traffic stops, using as an example a stop made after officers received an anonymous 911 call of a male driver in a pickup truck taking pictures of young neighborhood children. I use the same example in this month s column with a slightly different twist to illustrate what s required (or not required) of officers in establishing probable cause to conduct a search.
You re on routine patrol on a cold but sunny weekday afternoon in February when you re dispatched to a location in a residential neighborhood. The dispatcher informs you that an anonymous 911 caller reported seeing a middle-aged man wearing a baseball cap taking photographs of young children in the area while driving a black pickup truck with a cap on the bed. According to the dispatch, the anonymous caller stated he called because he read in the newspaper that there was another similar incident that occurred approximately one week earlier and did not know if the two incidents were related. You recall the same incident from your roll-call briefing.
You re a short distance away from the reported scene of the incident, and as you drive in search of the suspect vehicle, you observe a dark-colored
pickup truck complete with cap. Because a similar incident was reported recently, and because of the unusual nature of the call involving children, you re concerned that perhaps a pedophile lurks in the neighborhood. As you pull behind the vehicle, you observe the yearly registration sticker is partially covered by the license plate bracket in violation of your state s vehicle code. This gives you sufficient probable cause to initiate a traffic stop, which you conduct moments later. (For an explanation as to why officers can t initiate a stop based solely on an anonymous tip, please refer to my August article.)
After initiating the traffic stop, you approach the vehicle and ask the motorist for his driver s license, registration and insurance papers. He tells you he has recently moved to the area from Indiana. While engaging the driver in further conversation, you observe the following items on the pickup s bench seat: a baseball cap, a camera and an open camera bag, duct tape, rope, towels and blankets. While seemingly innocuous on their own, these things together, given your experience and training, trigger all kinds of bells, alarms and whistles in your head.
In an attempt to alleviate your concerns about potential criminal activity involving young children, you ask the driver whether he had been taking photographs of young people in the area. He denies doing so and explains that he was only taking photographs of the trees and scenery as part of his hobby. The explanation is plausible, but you inform him about the anonymous 911 call. Again, he denies involvement. As he hands you his driver s license, he adds he lives alone and has no family living in state.
He opens his glove box and takes out a bunch of stuffed papers in an attempt to locate his insurance card. While searching, he keeps looking toward the pickup s rear. He fumbles through the pile of documents; you see papers resembling court documents containing his name with a Wyoming residential address. The court documents are dated six months earlier. When you ask the driver about the court papers, he merely responds that he cleared up his legal issues a few weeks ago but doesn t remember the details. You ponder the reason why this guy has moved to three different states within a relatively short period. A ticket stub from a local children s zoo falls from the handful of papers in his hand. You ask him whether he visited the zoo; he responds affirmatively, adding that he went last Saturday. He finally hands you his insurance card.
As your backup unit arrives, you run the driver s information through the computer system and everything is valid. At this point, you decide to issue him a traffic citation for an obstructed license plate (assuming it s a violation in your state). Yet, something doesn t sit right. You wonder what this person is doing with all the items located in the truck cab, and why he kept looking to the rear of his truck as you spoke.
As you write the citation, you observe the driver exit his truck and walk toward your vehicle, which you exit cautiously. As he walks, he extends his hand and exposes what is obviously a roll of film. Catching your startled look, the driver explains this is the film that he was using in his camera when he was taking pictures of the scenery. You wonder why the driver is so anxious to corroborate his story. Recalling the driver told you earlier he had no family in the area, you realize you may be dealing with a potential pedophile. After all, you received a call of a male taking pictures of young children in the area; a similar incident occurred in the area recently; the person you stopped matches the description given by an anonymous caller; he possesses a camera; rope, duct tape and towels are located on the cab s front seat; he s moved to three different states in a very short time; he lives alone; and he recently patronized a children s zoo.
Is it plausible the driver may harbor evidence of criminal activity in the back of his truck? Is he attempting to lure children into his truck to participate in unlawful conduct? Is someone in the back of his truck? These are all potential concerns an officer might have given this particular scenario. What do you do? What can you do?
You take the roll of film from him and place it in your pocket. You explain to him that you would like to search his vehicle. He neither protests nor affirmatively grants you permission (It s good practice when asking for a consent to search that officers actually ask for the consent as opposed stating they would like to conduct a search. Additionally, it s good practice to get an affirmative answer before conducting a search and even better practice to obtain a written consent to search). As you search the cab, you find no evidence of unlawful activity. When you search the rear of the pickup, you locate a crate covered with blankets. You remove the blankets and open the crate to find a puppy sleeping. Thankfully, no child in distress is located. In fact, no evidence of any crime is found anywhere in the vehicle.
The search of the entire vehicle takes less than five minutes. After completing the search, you issue the traffic citation, return the roll of film and release the driver.
You don t see or hear from the driver again; that is, until you ve been served with a civil-rights lawsuit alleging, among other things, you violated his rights under the Fourth Amendment to be free from an unlawful search of his vehicle. He alleges the search violated the Fourth Amendment because you had no probable cause to conduct the search. He further alleges had you taken the roll of film to a local drug store to be developed, you would have had proof that he wasn t taking pictures of children. Is he correct?
Probable Cause to Search
Street officers must realize probable cause to arrest or to search is not the same as the probable cause needed to bind over for a hearing or the level of evidence required to convict in a court of law.1 Patrol officers simply are not in a position to have the time and resources to conduct a thorough investigation while conducting a traffic stop or responding to a dispatched call for assistance. State and federal courts are well aware of street officers limited available resources during these types of incidents and are reluctant to impose unrealistic expectations on law-enforcement officers.2
Wouldn t it be nice to know the actual contents of the film? Certainly. However, the film could have been a decoy roll one set aside by the driver in the event he was questioned by the police about his activities. After all, you don t know whether the film he handed you actually came from his camera, because you didn t see him remove it from the camera. Yet, even if the film turned out to be photographs of trees and similar scenery, hat would not negate the probable cause you had to conduct your brief search. In other words, probable cause does not depend on the [photographs] turning out to have been right; it s what the police know, not whether they know the truth, that matters. 3
Probable cause exists where the facts and circumstances within an officer s knowledge and of which they had reasonably trustworthy information is sufficient in themselves to warrant an officer of reasonable caution in the belief an offense has been or is being committed.4 Put another way, probable cause is a commonsense, non-technical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. 5 Further, the determination of probable cause is based not on the facts as an outsider would perceive them, but on the facts as they would appear to a reasonable person in the position of seeing what the police officer saw.6 In this case, you reasonably believed the driver may have been involved in criminal activity involving young children. You were able to articulate and weigh all of the factors described above in determining your probable cause, assuming that the search was otherwise lawful. The fact that it later turns out there is no evidence of criminal activity (either because the film depicted what the driver stated or because you couldn t locate any evidence in the truck) doesn t remove or somehow erase your probable cause before the search.
In conclusion, officers must be able to articulate the reasons for their actions, whether it involves a search and/or an arrest. This goes for writing police reports, responding to inquiries from their supervisors, answering questions in a deposition and testifying in court. Generally, if officers can provide reasonable explanations, suspects will be less successful in claiming officers lacked probable cause to conduct a search or make an arrest.
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.
1. See, e.g., United States v. Sawyer, 224 F.3d 675, 678-79 (7th Cir. 2000). (Stating that probable cause does not require evidence sufficient to support a conviction, nor even evidence demonstrating that it is more likely than not that the suspect committed a crime. ); Von Stein v. Brescher, 904. F.2d 572, 578 n.9 (11th Cir. 1990).
2. See, Kelly v. Myler, 149 F.3d 641, 647 (7th Cir. 1998). ( The inquiry is whether an officer has reasonable grounds on which to act, not whether it was reasonable to conduct a further investigation. )
3. Gramenos v. Jewel Cos. Inc., 797 F.2d 432, 439 (7th Cir. 1986).
4. Brinegar v. United States, 338 U.S. 160, 175-76 (1949).
5. Ornelas v. United States, 517 U.S. 690, 695 (1996).
6. See, Kelley v. Myler, supra.