Ordinary investigative stop, or "extraordinary" and unlawful police tactics?

In addition to the Title VII sexual orientation case I just posted about, the Seventh Circuit will also hear en banc arguments tomorrow in United States v. Johnson, a criminal case that is the real reason I am going to the arguments tomorrow.

In a nutshell, police saw a vehicle stopped at a crosswalk, pulled two vehicles up next to it and shined bright lights on it, then saw a passenger trying to hide a gun which turned out to be unlawfully possessed by a felon. The question is whether there was a Fourth Amendment violation that justifies excluding some of the evidence. Judge Easterbrook's opinion for the panel is short and covers a lot of ground, but near as I can tell there are three separate issues.

1: Was there reasonable suspicion/probable cause to initiate a stop? Under Wisconsin law, standing at a crosswalk is permissible "temporarily for the purpose of and while actually engaged in loading or unloading or in receiving or discharging passengers." The car here had its motor running on a side street next to a liquor store, and might well have been there temporarily while somebody went to or from the store; it's not clear the police officers observed the car long enough to even know whether this was true or not.

The panel's main response is that "officers need not negate all possible defenses. They can hand out tickets (or make arrests) and leave to the judicial process the question whether a defense applies." It's not clear to me whether this is technically a "defense" under Wisconsin law, but in any event I don't have the same categorical intuition here. When police officers see a gun, can they make an arrest and then leave to the judicial process the question whether the holder had a gun permit? When police officers see a person on private property, can they arrest him and then leave to the judicial process the question whether he had the consent of the owner to be there (or was the owner)? Or do they instead need good reason to doubt that the gun-owner has a permit, or good reason to think that the person is a trespasser?

It seems right that officers need not always be sure that the activity falls into an unlawful category—that's why it's called "reasonable suspicion" or "probable cause," not "proof." But I am not sure that "defenses" are the right way to think about this. Robert Leider has an article arguing that the element/defense distinction should not do any work in this area, and I am inclined to think that's right. Maybe there's still probable cause here on the facts, but not because police didn't need to think about this issue.

2: Was there even a stop in the first place? This seems to be a backup argument for the government to #1. Here's the panel again:

Indeed, because the car was stopped in a public street, police did not need any reason at all to approach and look through the window. Officers do not violate the Fourth Amendment by viewing things they can see from a public vantage point where they have a right to be. It was the fact that the police approached the car that enabled them to see the gun. Everything else followed naturally (and legally). [Citations omitted.]

I'm inclined to think that this is wrong, for reasons related to The Positive Law Model of the Fourth Amendment. It sounds like the police did more than just walk up to the car; they surrounded it and shined really bright lights on it. I suspect that if a gang of ordinary citizens did the same thing to a private person on the streets of Milwaukee they would be committing a tort or minor crime. And while I might well be wrong about that (need research some Wisconsin law when I have time), if I'm right about that it suggests that the police were doing something more than what an ordinary person could do, and hence should have some justification for it.

3?: In any event, says the panel, the exclusionary rule should not apply:

We grant that the police did more than just stroll up: two squad cars, which bathed the parked car in bright light, implied that the occupants were not free to drive away. But as it happened the number of cars, and the use of lights, did not play a role in the causal sequence. (The cruisers' lights may have played some role by supplementing the streetlamps, but Johnson does not contend that shining light into a car on a public street is unreasonable under the Fourth Amendment. See Dunn, 480 U.S. at 305, 107 S.Ct. 1134.) No one was in the driver's seat, so the parked car could not drive away, no matter what the occupants wanted or thought they were free to do. A lone officer who ambled up amiably and shone a flashlight through the window would have seen everything needed to set up a lawful seizure of the gun. When the contested activity (here, the show of force through the use of two cars and bright lights) does not matter, it is also not a basis for suppressing evidence. When discovery would have occurred anyway, through proper means, the exclusionary rule would be overkill and must not be employed.

I'm least sure about the role of this argument in the Court's opinion.

3a. Maybe it is being deployed to bolster #2: I.e., even if the police did engage in a stop, we should pretend that they did not because a non-stop would have had the same effect. This strikes me as an aggressive extension of the inevitable discovery doctrine, but it wouldn't be the first aggressive extension of the inevitable discovery doctrine by the Seventh Circuit. (See U.S. v. Tejada and U.S. v. Cazares-Olivas for examples.)

3b. On the other hand, it might be that this is just meant to reject an independent argument that an otherwise-lawful stop can trigger the exclusionary rule if it is conducted in an offensive manner. This more modest version of #3 seems right to me (see Richard Re, Remedying the Fourth Amendment's Reasonable Manner Requirement), but if so then #3 is probably not very important, since it's just rejecting an ancillary argument.

So I am inclined to see #1 as the key issue, and if the government wins I hope it is on that basis rather than #2 or #3a.

Meanwhile, Judge Hamilton's panel dissent makes both a relatively dramatic argument for limiting Supreme Court precedent and a more modest argument about the facts of the case. His dissent begins:

The police violated the Fourth Amendment rights of defendant Johnson and the four other occupants of the car. What happened here was extraordinary. No other court has tolerated such tactics in such a case. Five officers in two police squad cars seized the passengers of a parked car. They swooped in on the car, parking close beside and behind it, with bright lights shining into it from both directions, opened the doors, pulled all passengers out, and handcuffed them. The passengers were seized before the officers had any sign that one passenger might have a firearm.

The sole basis offered to justify this highly intrusive, even terrifying, "investigatory stop" was a suspected parking violation! The phenomenon of police seizures for "driving while black" has long been recognized. See, e.g., David A. Harris, Driving While Black and all Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J.Crim. L. & Criminology 544 (1997). In this case, we seem to be taking the further step of enabling police seizures for "parking while black."

Taking this further step is a mistake not required by existing law, and it runs contrary to the core Fourth Amendment standard of reasonableness. There are two alternate grounds for reversal here. The first and broader is that the rule allowing pretextual traffic stops under the combination of Terry v. Ohio, and Whren v. United States, should not be extended to mere parking violations where the legal sanction would be only a citation and fine. The second and narrower ground is that even if such an extension is recognized in theory, the police did not have a reasonable basis for this seizure.

There's a lot to be said about the dissent too. (I am more inclined to the "second and narrower ground" than the "first and broader" one.) But I've already gone on too long, and I'm sure that all of these issues will be in play during the arguments tomorrow.