Court Allows Suspicionless "Information Seeking" Stop of a Car Leaving a Home

A wrong decision, I think.

|The Volokh Conspiracy |

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."

The Court then applies the framework in Illinois v. Lidster, in turn based on Brown v. Texas, 443 U.S. 47 (1979), and concludes that the suspicionless stop of the car was reasonable.

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.

NEXT: Steven Pinker Loves the Enlightenment

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  1. Does not intermediate scrutiny apply to the Fourth Amendment as some courts apply it to the Second Amendment?

    1. No, the 2nd Amendment gets a separate set of rules, because guns.

      1. Amusingly enough, intermediate scrutiny also applies in some cases to the 1A (Ward) and in some cases to the 14A (Boren).

  2. “The government in Sievers made no argument that their stop was based on reasonable suspicion.”

    This sentence and your headline, “Court Allows Suspicionless ‘Information Seeking’ Stop of a Car Leaving a Home,” make it seem like it was an arbitrary stop of some random vehicle which had left some random house –which isn’t the case here.

    In this specific case, the officers were acting on specific information and the initial stop seems reasonable.

    After that, the police observed the suspected drugs openly displayed and that’s the end of the story.

    1. It seems worth noting that is the Court’s statement of the question presented: “The issue presented is whether the suspicionless stop of Sievers 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 Sievers’ Fourth Amendment rights.” And the holding: “The critical mass of special law enforcement concerns presented in this case justifies the application of a rare exception to the rule against suspicionless searches and seizures. “

    2. “acting on specific information” – yes. “reasonable” – no.

      If the officers had reasonable suspicion, normally a trivially easy standard to meet, then they would have argued it and the courts would have found it. The fact that they didn’t even try to argue reasonableness and that the court had to twist the rules to avoid that standard is clear evidence that the stop was not reasonable.

    3. There was specific information tying the house to criminal activity. This truck had recently departed the house.

      That seems quite borderline when saying that the information was specific with respect to the truck.

      1. There was specific information tying criminal activity to the house.

        They had the informant point out the house where he had purchased drugs five days ago and described money, more drugs, drug paraphernalia (scales), weapons, etc. He even ID the drug dealer’s picture.

        The info is in the court decision (not Prof. Kerr’s blog).

        1. But to make the stop and search of the truck reasonable, they would have needed specific information tying the truck itself to criminal activity. Specific information tying the house to criminal activity is irrelevant.

        2. Indeed. I said as much in my post.

          The question is, what particularized suspicion of a crime can the police articulate with respect to the occupants or contents of the truck?

  3. Does anybody think a citizen contact initiated by police ever occurs without suspicion on the part of the police?
    The essence of their profession is suspicion. One could argue the work being done can not be law enforcement, without suspicion.

    To base judgement on the suspicion of police is to gut the 4th amendment.

    “The police are not likely to ask questions designed to elicit self-incriminating information.” Really? On what planet does the Lidster court live?

    If you were the legal representative for that individual stopped by the police, would you advise an off the cuff conversation?

    Agree with you, this line of decisions is flawed. And actions of law enforcement unconstitutional on it’s face.

    1. “Does anybody think a citizen contact initiated by police ever occurs without suspicion on the part of the police?”

      You have to qualify if the suspicion is reasonable.

      In this case, I’d say yes the suspicion–and therefore the stop–was reasonable.

      In the case of the moron in Montana who stopped two Spanish speaking women–merely because they were speaking Spanish in Montana!!!–the suspicion was not reasonable and hopefully he gets his ass handed to him.

      1. Thanks for your thoughtful (non-snarky) reply. Good point.

        The first quoted & indented paragraph from the Lidster decision above seems to me to disagree with your 1st statement.

        Must give you credit for showing me the semantical bog into which I have stumbled.
        And I don’t recall a constitution amendment requiring the use of logic in judicial opinions.

        However, if we apply your statement, then it was a Terry stop and the Sievers court logic does not actually apply. Whereas if it was a Lidster stop, the police action was, in the court opinion, “…a rare exception to the rule against suspicionless searches and seizures.” Which I can not find in the 4th amendment.

    2. Does anybody think a citizen contact initiated by police ever occurs without suspicion on the part of the police?

      Yes, sure. If there’s a car accident at an intersection and the police go ask nearby pedestrians if they saw what happened, they’re not doing it because they suspect the pedestrians of wrongdoing.

      1. Thanks for your reply. I stand corrected.

        I failed to include, in my comment, the parsing of suspicion (in general vs. toward a specific individual) as noted in the text above. My comment should have clearly stated the “in general” type, not the specific type.

    3. Police frequently contact witnesses, without any suspicion of the witness having broken the law.

      1. Thanks for your reply.

        Please see my replies above, concerning the shortcomings of my original comment.

        And please read my 1st paragraph as one thought.

        IMHO, the article contains more solid logic than the Sievers decision, at least as revealed here.

  4. A vehicle leaving a residence that was the object of a search warrant for drugs and weapons?
    Sounds like they should have said they had probable cause to stop and talk the driver.
    Of course I am not on top of the intricacies of suspicionless information stop, but I was called for jury service once.

    “They ordered the driver, Sievers, to put his hands on the steering wheel and to not move …”

    Sievers’ first error was having to be ordered to put hands in plain view, no movement.

    In handgun carry permit class, we were instructed that, in a traffic stop, you place your hands on top of the steering wheel so the officer approaching the vehicle can see your hands. Make no “furtive movements” that could be interpreted as hiding contraband or going for a weapon. If a cop in any state of the Union runs my car tag, they get back that the car is registered to me and I have a carry permit. Anyone borrowing my car gets a talk on how to behave in a traffic stop.

    1. A vehicle leaving a residence that was the object of a search warrant for drugs and weapons?
      Sounds like they should have said they had probable cause to stop and talk the driver.

      But they didn’t have probable cause.

      While I don’t disagree with your practical advice, I do disagree with you adopting the term “furtive movements.” That’s a made up cop label; there’s nothing that objectively distinguishes furtive movements from any other. If the cops want to search you, any movement will (whether it reasonably could be or not) be interpreted as hiding contraband or reaching for a weapon.

      1. A vehicle leaving a residence that was the object of a search warrant for drugs and weapons?
        Sounds like they should have said they had probable cause to stop and talk the driver.

        Probable cause has to be particularized and specific to the person and property being seized. Stretching the PC from the house to the vehicle, without any further evidence that the occupants of the truck had anything to do with the suspected crimes in the house is a bit much.

        Such a stretch, in fact, that the State didn’t even argue this theory.

        1. I’m suspecting they did not have enough to make it a valid investigatory stop with individualized suspicion, so they called it a “suspicionless informational” stop when they really expected to find something because they suspected the individual. If true, that should not be rewarded.

      2. If the cops did not want to search you, acting like you’re hiding something as they approach your car is one way to get unnecessary attention. Furtive, sneaky, whatever.

        That, and jumping up and down on the hood of your car shouting Attica! Attica! Attica! over a taillight warning. Don’t want no unnecessary attention.

        I know there are “Officer Daniel Harless of Canton Ohio”s out there. Haven’t encountered one locally.

        1. If the cops did not want to search you, acting like you’re hiding something as they approach your car is one way to get unnecessary attention. Furtive, sneaky, whatever.

          The point is that if they did not want to search you, they would not call the movements furtive. It’s only when they want to search you that they use these sorts of vague labels for ordinary conduct.

      3. I agree completely. I would add that someone who turns on an interior light (if it is a night time stop), turns off the ignition and puts the key on the dash, and keeps both hands on the wheel in plain sight (all advice that was given to me by my CCW instructors) is likely to be deemed suspicious because of his “obvious” attempt to appear non threatening or some such if a police officer has already decided that he is suspicious or dangerous.

        1. Jeez this sounds like one of Randy Balko’s catch-22s.

          Do these things to appear non-threatening, but don’t appear to attempt to do these things in order to appear non-threatening or else the person will assume you are covering up for being threatening.

          Sheesh.

    2. All that does is treat cops like mad dogs. An officer *knows* that having a firearm is not, in and of itself, an indication of danger. But some of them like to pretend it is – and act accordingly.

      However, no, in quite a few states cops will run your plates and not know that you have a carry permit. My state doesn’t even check for them – they don’t exist here.

  5. I must have missed Lidster when it came out. A horrible, bad, no good decision.

    Innocent people minding their own business on a public street get stopped and interrogated by the police for no reason whatsoever. Constitutional!

    Though after the Nazgul gutted the 4th Amendment in the drunk driving checkpoint case, its not surprising.

    As for this case. Shrug. If innocents are forced to be interrogated as in Lidster, who cares if criminals get stopped.

  6. The follow up of this case is just terrible. This time it was a house, next time it will be a particular street known for drug activity. This case justifies stopping every car that drives down that street for any reason, under exactly the same logic.

  7. It seems to me to have reasonable suspicion of a crime sufficient to stop somebody you must be able to clearly articulate the crime. It can’t be that you are leaving a house where we suspect crimes are being committed.

  8. A court dominated by Republicans (including former prosecutors) issues an authoritarian ruling that whittles Constitutional rights? This decision seems wrong, as Prof. Kerr observes, but the judicial lineup made it predictable.

  9. I’m surprised that the police didn’t bother finding RS. Follow someone for a few blocks and you can generally spot a traffic violation.

    1. Maybe this occurred in the sticks, and the lack of a 24-hour doughnut shop had them pressed against a hard deadline?

  10. The fact that this wasn’t a checkpoint alone seems to distinguish this from Lidster, which dealt with special needs in a checkpoint context. Just look at Delaware v. Prouse for the key distinction between an individualized, targeted stop and a checkpoint stop. This in no way qualifies as a special needs stop and it’s pretty ridiculous that they affirmed. It’s bad law that will sadly probably not get corrected but will instead get compounded.

  11. As a layperson I get why the Lidster exception shouldn’t be applied to Sievers. What I am less clear on (because the reasonable suspicion standard seems quite vague to me) is why Sievers shouldn’t be considered a reasonable suspicion scenario in the first place.
    If the Sievers stop doesn’t meet the RS bar, would a stop of a young male who paid a 5-minute visit to the same house two hours later meet that bar (now that cops know Sievers was departing with meth)? If not that, how much further would the scenario need to be tweaked before the RS bar *is* met?

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