Law Officer Volume 3 Issue 8 Around noon on a cold but sunny weekday in February, you re on routine patrol when dispatch sends you to a location in a residential neighborhood. The dispatcher informs you 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 back. The anonymous caller stated he read in the newspaper that a similar incident occurred approximately one week earlier, and he wondered if the two incidents were related.
You are about three minutes away from the scene of the reported incident. You drive through the area in search of the pickup truck as another unit canvasses the area and speaks to local residents who happen to be out and about. You approach an intersection controlled by a traffic signal and observe a dark forest-green pickup truck with a cap on the back parked on the shoulder across the intersection in the opposite lane facing you.
As the light turns green, you cross the intersection and note the driver is a middle-aged male, but he s not wearing a baseball cap. You also notice the vehicle is dirty from driving on roadways wet from the melting snow. Your experience tells you anyone can mistakenly report the color of this vehicle as black. Although it s situated only a few yards back from the intersection on a green light, the vehicle remains parked on the side of the road and the driver appears to be preoccupied with something on the front seat.
You conduct a U-turn to pull in behind the vehicle. As you do so, you observe the driver look in his side mirror and make eye contact with you. Suddenly, although the light is now red, he pulls out into the roadway, drives up to the intersection and stops for the red light. You stop your squad car behind him.
Based on the information you received in the original dispatch, you believe this vehicle and driver are the same vehicle and driver reported by the anonymous 911 call. Unfortunately, without observing the driver taking photographs of young people or otherwise acting consistently with the reported activity, you know you are not legally permitted to stop the vehicle (see explanation below).
You also know your hunch is not enough to establish the reasonable suspicion or probable cause necessary to perform a traffic stop on the vehicle to conduct a more thorough investigation. But you ask yourself, What if he is a pedophile? What if he is stalking young people in the neighborhood? What will happen if I don t stop him and a few days later I learn of a missing child last seen in the area of a dark-green pickup truck? You don t want to let the driver of the vehicle drive off without at least having an opportunity to talk with him. What do you do? What can you do?
Probable Cause to Initiate the Stop
As you sit behind the vehicle, you observe the yearly registration sticker is partially covered by the license-plate bracket. In Illinois, as in many other states, it is unlawful to operate a vehicle with an obscured registration.1 This, you know, forms your probable cause to initiate a traffic stop, which you conduct moments later.
After you initiate the stop, the vehicle pulls over to the side of the road. You cautiously approach and ask the motorist for his driver s license, registration and insurance papers. He asks if he has committed any traffic infractions, and you tell him no. As you wait for him to produce these documents, you observe the following items on the bench seat of the pickup truck: a baseball cap, a camera and open camera bag, duct tape, rope, towels and blankets. Suffice it to say all kinds of bells, alarms and whistles go off in your head.
The driver produces an out-of-state driver s license. This raises your curiosity to another level because the vehicle s registration comes back to your state. In response to your inquiry, the driver tells you he moved to the area approximately five months ago and hadn t yet had the opportunity to obtain a new driver s license from your state. This, too, is a violation many states require new state residents to obtain a driver s license from the resident state within a specific time frame from the date of establishing residency.2
You ask the driver where he s coming from. He says he was just driving around the neighborhood. You ask him if he d been taking photographs of young people in the area. He responds he had not and he was merely taking photographs of the trees and scenery as part of his hobby. You inform him the police department had received an anonymous 911 call reporting a man wearing a baseball cap and operating a vehicle similar to his that had been taking pictures of children in the area. He denies doing so.
As your backup unit arrives, you run his information through the computer system. Voila. He has an outstanding warrant for criminal sexual abuse of a minor. Luckily for you and for him, he submits without incident to your arrest for the outstanding warrant, improper registration and license infraction.
Was the Traffic Stop Lawful?
Before long, you are served with a civil-rights lawsuit filed on behalf of the motorist. The lawsuit alleges you stopped the motorist s vehicle in violation of his Fourth Amendment right to be free from an unlawful seizure. While he does not deny his registration was obscured, he alleges you had no probable cause to arrest him in that the stated reason you stopped him (the obscured registration) was a pretext for the real reason for the stop the anonymous 911 call reporting a man taking photographs. According to the motorist, this pretextual traffic stop is unlawful and purportedly violates the Fourth Amendment.
This type of claim is not unusual for those of us defending the law enforcement community in civil-rights litigation. That said, the claim proves baseless and should not alarm police officers.
Without question, most officers presented with the above scenario will want to find a reason to stop the motorist whose vehicle fits the description of that person engaged in what may be considered suspicious activity. While it s not a crime to take photographs, even of young children in a public place, it certainly can be considered suspicious when it falls on the heels of a report of the same type of activity just one week prior.
Law enforcement officials are not permitted to stop and question people based upon an anonymous 911 call without something more, however. The United States Supreme Court affirmatively stated in Florida v. J.L.3 that an anonymous tip will not give rise to reasonable suspicion unless it is suitably corroborated both in terms of its tendency to identify a determinate person and its assertion of illegality. Without corroboration, there must be some other lawful basis to conduct a stop.
To stop the vehicle, officers must have reasonable suspicion to believe the motorist was, or about to be, engaged in criminal activity. Reasonable suspicion requires more than a mere hunch; it is some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.4 In the scenario presented above, the motorist was operating a vehicle with a partially obscured registration sticker in violation of state law. No doubt, before stopping the vehicle, two things were on your mind: 1) the vehicle matched the description of the vehicle reported by dispatch, and, 2) the same vehicle was showing a clear violation of the state vehicle code. And guess what such dual motives are completely permissible.
Whren v. United States
The motorist opines the true motivation for the traffic stop was to investigate the suspicious activity reported by an anonymous caller, not the violation of the state vehicle code. Yet, this is the precise argument rejected by the Supreme Court in Whren v. United States.5 In Whren, two plainclothes police officers stopped a vehicle occupied by two black males. Prior to the traffic stop, the officers observed the vehicle stopped at a stop sign for an extended period of time. When the officers made a U-turn to pull in behind the vehicle, they observed the vehicle turn right without activating the turn signal. After stopping the vehicle, the officers discovered contraband and subsequently arrested both individuals.
At a hearing on their motion to suppress evidence, the vehicle s occupants argued the reason given by the officers for conducting the traffic stop failure to use a turn signal was a pretext for the real reason for stopping them they were two black men driving in a high drug-trafficking area.6 The motion to suppress was denied, and the occupants were ultimately convicted. The matter proceeded to the United States Supreme Court.
The occupants agreed, like the motorist in the above scenario, they had violated the traffic code. They argued, however, that because the use of automobiles is so heavily and minutely regulated that total compliance with traffic and safety rules is nearly impossible, a police officer will almost invariably be able to catch any given motorist in a technical violation. This creates the temptation to use traffic stops as a means of investigating other law violations, as to which no probable cause or even articulable suspicion exists. 7 Thus, to prevent these types of stops from occurring, the occupants argued that courts should be required to inquire as to the actual motivations of police officers.
The Supreme Court, citing a long line of cases, unanimously (a 9-0 vote) rejected this argument and stated that subjective intentions play no role in ordinary, probable-cause analysis under the Fourth Amendment. Citing its prior decisions, the Supreme Court stated that [s]ubjective intent alone . . . does not make an otherwise lawful conduct illegal or unconstitutional. It also stated that it has been established that the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action. 8
The Court also stated that the Fourth Amendment s concern with reasonableness allows certain actions to be taken in certain circumstances, whatever the subjective intent. 9 For example, in searches incident to a lawful custodial arrest, it is of no moment that [the officer] did not indicate any subjective fear of the [arrestee] or that he did not himself suspect that [the arrestee] was armed. 10
In sum, the Court found that an otherwise valid arrest for a traffic violation is not rendered invalid by the fact it was a mere pretext for some other type of search.11 The Court, however, stressed that should officers use race or some other impermissible factor in their decision to make a traffic stop based on probable cause, the traffic stop may not violate the Fourth Amendment, but it may violate the Equal Protection Clause of the Fourteenth Amendment.12
Writing the Report
The fact that you have an ulterior motive separate and apart from the vehicle-code infraction does not violate the Fourth Amendment. It becomes an issue for officers, however, when it comes to describing the reason for the traffic stop in police reports, particularly with respect to the chronology of events. I believe officers should always write the truth. That means there is no room for fudge factoring or creative writing. If officers write the truth, it will be easier to testify to when called by the prosecution in the criminal trial, and it will certainly alleviate the pressure when called to testify in a deposition or on the witness stand in the event the officer is sued civilly.
Thus, using the above scenario, the officer should describe the events in this chronology (the events are abbreviated but the reader should get the point): I received the broadcast, saw the truck, pulled behind it, saw the violation, made the stop, saw the suspicious items, etc. Some officers may be tempted (and may be even told) to draft the report the opposite way: I saw the truck, saw the violation, made the stop, saw the suspicious items, realized it may be connected to the previous broadcast, etc. While the latter scenario turns out to be that way, the point of the matter is that officers should draft the report the way the events occurred.
Additionally, upon learning the driver has a warrant, officers may be tempted to abbreviate the report as follows: While conducting a traffic stop for an obstructed registration sticker, I checked the driver s name and found he had an outstanding warrant for criminal sexual abuse of a minor. He was handcuffed, transported, booked and taken before a magistrate judge. While the report is truthful, it omits important events the reason for the traffic stop and the items found in the truck (camera bag, duct tape and rope).
If the officer takes the short cut in drafting his report but then later testifies in court, either as a witness to the prosecution in a criminal matter or as a party in his own defense in a civil suit, as to the details that were omitted from the report, he will be subject to cross-examination by a savvy attorney as to why he did not put in the details. The attorney will then argue to a jury or judge, If it s not in the report, then it didn t happen. Additionally, by leaving out the details about the items that were found in the truck, the officer could hinder future investigations: the driver s actions might prove important in another case, it might tie him into another investigation from another agency, the possession of these items might violate his parole if he is on parole, etc.
Certainly, officers have to use some discretion in deciding how to draft their reports and it may take some time for the officer to develop a knack for knowing what s important and what is surplus. At the very least, officers should write about the events in the same chronology as they happened.
The Bottom Line
State vehicle codes are written to provide law enforcement officers ample opportunity to establish probable cause to initiate a traffic stop when an individual is suspected of having committed, or about to commit, a crime other than the infraction of the vehicle code. They are invaluable tools use them.
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.
References
1. See, e.g., 625 ILCS 5/3-413(b) ( Registration stickers ... shall be ... clearly visible at all times. ) (Illinois).
2. See, e.g., 625 ILCS 5/6-102.7 (requiring motorists to obtain a valid driver s license within three months of moving into the state) (Illinois).
3. 529 U.S. 266, 270-72.
4. United States v. Cortez, 449 U.S. 411, 417 (1981).
5. Whren v. United States, 517 U.S. 806 (1996).
6. Id. at 809.
7. Id. at 810.
8. Id. at 813.
9. Id. at 814.
10. United States v. Robinson, 414 U.S. 218, 236 (1973).
11. Whren, 517 U.S. at 813.
12. This practice, selective enforcement based on race, is commonly referred to as racial profiling.