The Volokh Conspiracy
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The Nebraska Supreme Court recently handed down a new Fourth Amendment decision, State v. Sievers, allowing a suspicionless stop of a car on the ground that the officers were merely seeking information about a crime believed to be going on where the car had recently been parked. The case strikes me as wrongly decided, and I thought I would explain why.
The question in Sievers is whether the police could stop a truck that had recently left a house that was suspected of being a place where drugs were sold and stolen firearms were being stored. The police were watching the house and were in the process of getting a warrant to search it. They saw a truck leave the premises and drive away, so they stopped the truck five blocks away. They did not observe any traffic violations that might have independently permitted the stop. A subsequent search of the car revealed two small baggies of meth in the front console of the car, and the driver's was convictied of possessing the meth.
On appeal, the Nebraska Supreme Court frames the legal issue as being "whether the suspicionless stop of [the truck] to gather information about stolen property and possible criminal activity at the residence he drove from, for which a search warrant was being sought, violated [the truck driver's] Fourth Amendment rights." So framed, the Court rules, the suspicionless stop did not violate the Fourth Amendment. Here's the key passage, with a paragraph break added:
Even a brief, limited governmental intrusion for the purpose of investigation must be justified at its inception by a showing of reasonable suspicion [citing Terry v. Ohio]. A seizure for the purpose of seeking information when police are investigating criminal activity that might pose a danger to the public, however, may be reasonable under the Fourth Amendment even in the absence of reasonable articulable suspicion of criminal conduct. The U.S. Supreme Court has explained that "special law enforcement concerns," such as a police roadblock, checkpoint, or other detention made for the gathering of information, will sometimes justify a stop of a vehicle "without individualized suspicion." "Like certain other forms of police activity, say, crowd control or public safety, an information-seeking stop is not the kind of event that involves suspicion, or lack of suspicion, of the relevant individual."
In Illinois v. Lidster, the U.S. Supreme Court scrutinized a highway checkpoint that was set up to solicit information from motorists regarding a fatal hit-and-run accident. The Court found that a suspicionless, "information-seeking" stop made pursuant to the checkpoint was constitutional. The Court emphasized the "primary law enforcement purpose [behind the checkpoint] was not to determine whether a vehicle's occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others."
I'm not persuaded. It's true that Lidster allowed a suspicionless "information-seeking" checkpoint stop, which is effectively an exception to the usual rule that reasonable suspicion is required under Terry v. Ohio. But the key to Lidster was that the officers were only trying to find innocent eyewitnesses to a past crime. The police set up the checkpoint at the scene of the accident hoping to find a member of the public who had seen the crime and might be able to give the policesome leads. This fell out of the usual Terry requirement of suspicion, the Lidster Court held, because the police where just asking members of the general public if they could help the police:
[T]he context here (seeking information from the public) is one in which, by definition, the concept of individualized suspicion has little role to play. Like certain other forms of police activity, say,crowd control or public safety, an information-seeking stop is not the kind of event that involves suspicion, or lack of suspicion, of the relevant individual.
For another thing, information-seeking highway stops are less likely to provoke anxiety or to prove intrusive. The stops are likely brief. The police are not likely to ask questions designed to elicit self-incriminating information. And citizens will often react positively when police simply ask for their help as responsible citizens to give whatever information they may have to aid in law enforcement.
Further, the law ordinarily permits police to seek the voluntary cooperation of members of the public in the investigation of a crime. Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, or by putting questions to him if the person is willing to listen.
It seems obvious that Sievers was different. This was not a case of "seeking information from the public." The officers testified that they stopped the truck because they thought it might contain evidence of crime—specifically, stolen goods that they thought were being stored at the house where the truck had been parked. When the stop occurred, the officer who ordered the stop "advised the [other] officers to make a traffic stop to prevent the truck from leaving with any stolen items." The lead officer explained that they neeed to stop and search the truck "for any items taken from the [firearms] burglary."
And when Sievers was stopped, the officers didn't treat him like a member of the public who perhaps just might have seen a crime. Instead, Sievers was treated as a dangerous suspect. Here's just a taste of what happened when the stop occurred:
[When he made the stop, Officer] Hubka observed the truck had only one occupant and saw the driver lean over and reach toward the center console area. Hubka considered the driver's actions to be "furtive movements," and consequently, he maintained a heightened security alert in case the driver was hiding something or reaching for a weapon. The officers testified they were "extra assertive" as they contacted the driver of the truck—in part because of the possible presence of a firearm. They ordered the driver, Sievers, to put his hands on the steering wheel and to not move as they helped remove him from the vehicle. The gang officers searched the interior driver's side of the truck and did not locate any weapons, narcotics, paraphernalia, or any stolen items.
The narcotics officers, who were following the truck in their unmarked vehicle, arrived simultaneously. Schilmoeller took over contact with Sievers, walked him to the cruiser, and sat him in the back of the cruiser with the door open and began questioning him. Sievers claims the officers had their guns drawn at this time, but not pointed at him. Sievers claims he was handcuffed during the officer's questioning. None of the officers remember any guns being drawn, and only Schilmoeller remembered when Sievers was handcuffed, which he stated occurred after the questioning was completed. Schilmoeller informed Sievers he was not under arrest, but was being detained due to a stolen property and narcotics investigation underway at the residence he had just driven from. Sievers admitted he had just been inside that residence and had just smoked marijuana before leaving, but "that was it." Schilmoeller attempted to obtain Sievers' consent to search the truck several times, but Sievers refused, stating that there were no illegal items inside the truck and that the truck belonged to his boss.
This doesn't strike me as a Lidster "information-seeking" stop, in which the person stopped is understood to be an innocent member of the public who may have been an eyewitness and is briefly stopped as a potential "responsible citizen" who can aid the investigation. Sievers was simply a suspect in the crime. I don't see how the Lidster reasonableness framework can apply.
The Nebraska Supreme Court relies on a Seventh Circuit decision, United States v. Brewer, 561 F.3d 676 (7th Cir. 2009). Brewer is the best case for the Nebraska Supreme Court's view, but it doesn't persuade me that it is correct. Here's why. A police officer stopped a car fleeing a housing complex late at night soon after shots were fired inside it. No other cars were on the road. The question briefed by the parties was whether the stop was based on reasonable suspicion under Terry. Brewer is one of these short and breezy Posner opinions in we find Posner in his usual rumination mode. Posner first concludes that there was indeed reasonable suspicion, so the stop was lawful. But Posner then starts wondering about other issues that the parties didn't brief, and he adds a few paragraphs at the end on the check point cases that no party raised. Posner recites a bunch of facts about the stop and then says that the stop therefore seem reasonable on the facts.
Brewer is a helpful case for the Nebraska court's view because it seems to apply the Lidster framework even when the person stopped might be involved in the crime. But I don't think Brewer's Lidster analysis can be taken all that seriously. Most importantly, it ignores the limits the Supreme Court relied on in Lidster. And it seems to be some kind of weird Posnerian mix between dicta and a secondary holding on an issue the parties didn't raise, for which a result was reached without much in the way of analysis. This doesn't seem like a particularly strong reed on which to rest, at least in light of the limiting language from the Supreme Court in Lidster.
The government in Sievers made no argument that their stop was based on reasonable suspicion. Given that, it sounds to me that this was an illegal stop. Nor does the fact that the police were trying to get a warrant make a difference, for reasons explored in Bailey v. United States.
I realize the U.S. Supreme Court doesn't do error correction very often. But unless I'm missing something, Sievers seems wrong.