A Ruling's Message: Break the Ties that Bind

You are riding in a police squad car. The officer behind the wheel says, "I'm bored. See that car in the right lane? I'm going to pull it over."

"Why," you ask. "Is the driver violating some law?"

"No, I just want to have some fun," he says. The officer then turns on his overhead lights and siren, pulls up along side the car, and says over his loudspeaker, "This is the police. Pull over immediately."

Stop the action here. Has the officer violated the concededly innocent driver's Fourth Amendment rights?

To answer this, I would first note that the U.S. Supreme Court has said that the Fourth Amendment "is designed to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals." INS v. Delgado, 466 U.S. 210, 215 (1984). I would then note that the Fourth Amendment literally protects against unreasonable seizures.

Was there a "seizure"? Obviously. A person has been seized within the meaning of the Fourth Amendment if, in view of all of the circumstances surrounding the incident, "a reasonable person would have believed that he was not free to leave." U.S. v. Mendenhall, 446 U.S. 544, 554 (1980) (opinion of Stewart, J.).

When a reasonable person is told to "pull over" by an officer in a squad car with a siren and flashing lights activated, he most certainly believes that he is not free to leave.

Was the seizure "reasonable"? An arrest requires probable cause and a Terry stop requires reasonable articulable suspicion. Terry v. Ohio, 392 U.S. 1 (1968). The police officer here admittedly had neither.

Conclusion: the police officer unreasonably seized the hapless driver and thus violated the driver's Fourth Amendment rights.

Have I convinced you that there is a Fourth Amendment violation?

If I have, then you are not a member of the U.S. Supreme Court. For the Supreme Court has held that, on the facts of our scenario, there is no Fourth Amendment violation. To understand why, let's take a look at the appropriately named case of

U.S. v. Swindle, 407 F.3d 562 (2d Cir. 2005).

Police in Buffalo, N.Y., were looking for a 5-foot-8, 145-pound African-American drug dealer named Kenneth Foster-Brown. While staking out a drug house Foster-Brown was known to frequent, police saw a black man who turned out to be Swazine Swindle enter the house, leave the house and then drive away. He looked nothing like Foster-Brown; Swindle is 6-foot-1 and 215 pounds.

According to the 2d U.S. Circuit Court of Appeals, "[T]he only obvious physical characteristic [Foster-Brown and Swindle] shared was the color of their skin." At 569.

Nevertheless, the police gave chase, activated their police strobe light, and ordered Swindle to pull over.

Swindle, however, refused and kept driving. During the subsequent chase, Swindle violated several traffic laws and threw a plastic bag out the window. The police eventually apprehended him. They later discovered that the discarded bag contained crack cocaine.

Swindle was charged with a federal offense of possession with intent to deliver. The judge denied his pretrial motion to suppress. Swindle pleaded guilty to simple possession, but he reserved his right to appeal the denial of his suppression motion.

Swindle was charged with a federal offense of possession with intent to deliver. The judge denied his pretrial motion to suppress. Swindle pleaded guilty to simple possession, but he reserved his right to appeal the denial of his suppression motion.

The 2d Circuit first focused on the legality of the original police order directing Swindle to pull his car over to the side of the road. The court called this a "clear abuse of police authority." At 569. The court concluded that at the time of this first order, the police did not even possess reasonable suspicion, much less probable cause. Merely observing an unidentified black man go in and out of a drug house and then drive away is not enough, standing alone, to justify either a Terry stop or an arrest.

So did the police order to stop constitute an "unreasonable seizure"? The 2d Circuit, bound by U.S. Supreme Court authority, reluctantly concluded that the order to stop was not a seizure per se and thus did not violate the Fourth Amendment.

True, under the seizure test established in Mendenhall, a reasonable person would not have felt free to leave. However, the U.S. Supreme Court subsequently held that whether an order to stop constitutes a seizure depends on the suspect's response to the order. The court held that a seizure requires "either physical force ... or, where that is absent, submission to the assertion of authority." California v. Hodari D., 499 U.S. 621, 626 (1991).

In sum, the Fourth Amendment is not per se implicated when a police order would make a reasonable person feel that he is not free to leave. Hodari D. holds that the Mendenhall test "states a necessary, but not a sufficient, condition for seizure." At 628.

Therefore, the 2d Circuit held that because Swindle ignored the police officer's improper order to stop, there was no seizure at that point and the Fourth Amendment was not implicated. And, because of Swindle's subsequent traffic violations, the police indeed had probable cause at the time they actually apprehended Swindle. Thus, the arrest was proper and the drugs were admissible under the authority of Hodari D.

The 2d Circuit was not happy with its decision. It emphasized that U.S. Supreme Court authority "constrained" it to rule for the government. At 564. It intimated that the Buffalo police improperly used race in its decision to stop Swindle. At 569. And it expressly stated that Swindle's conviction "was achieved with evidence obtained by an abuse of police power." At 573. Yet, the 2d Circuit reluctantly concluded, "A remedy for Swindle's Fourth Amendment complaint can come only from higher authority." At 573.

It is interesting to see how totally powerless a federal appellate court is in the face of binding U.S. Supreme Court authority. The 2d Circuit clearly felt that its decision was unjust. Yet, under our federal system, its hands were tied. It was constitutionally bound to follow the decisions of the U.S. Supreme Court.

Contrast this with the power of a state supreme court. In the area of criminal law, "selective incorporation" has allowed the U.S. Supreme Court to set a constitutional floor, a minimum level of protection below which neither state nor federal courts may venture. Yet state courts have a power that lower federal courts do not. For state courts may use their own state constitutions to provide protections for defendants that have not been mandated by the U.S. Supreme Court.

Thus, the 2d Circuit, when faced with a U.S. Supreme Court definition of "seizure" it finds unjust, can only engage in feckless hand-wringing. But the Illinois Supreme Court, by contrast, would be able to use the Illinois Constitution to provide a more capacious definition of "seizure" and thus hold for the defense.

So imagine what the judges of the 2d Circuit would say if you told them that the Illinois Supreme Court has pretty much ceded its right to set search and seizure policy in Illinois to the U.S. Supreme Court by following the "lockstep doctrine." People v. Lampitok, 798 N.E.2d 91, 99 (2003).

Unless the court finds specific evidence that the Illinois Constitution's search and seizure provision is different from the Fourth Amendment, it allows the U.S. Supreme Court to have the final say on these issues. It is a policy that turns federalism on its ear. (For further details, see my article " 'Stop Me Before I Get Reversed Again': The Failure of Illinois Appellate Courts to Protect Their Criminal Decisions From United States Supreme Court Review," 36 Loyola Univ. Chicago L.J. 893 (2005).)

Over the last two decades, lockstep has resulted in 10 search and seizure cases in which Illinois citizens prevailed in Illinois courts only to have their victories unnecessarily reversed by the U.S. Supreme Court. At 912.

All 10 reversals could have been prevented if the Illinois reviewing courts had simply relied on "adequate and independent" state grounds. The Illinois Supreme Court has for no reason reduced its status from the highest court of a sovereign state to nothing more than the U.S. Court of Appeals for the Illinois Circuit.

The good news is that the Illinois Supreme Court is currently reexamining its reliance on lockstep in the remand of Illinois v. Caballes, 125 S.Ct. 834 (2005). If the court needs some advice, I would recommend calling three judges from the 2d Circuit in New York who would give anything to have the power the Illinois Supreme Court possesses in the area of search and seizure.