CA7: Excessive lighting at a traffic stop (which this really wasn’t) isn’t excessive force in a high crime area at night

Defendant’s car was parked within 15′ of a crosswalk, a violation of state law unless passengers were getting out. The officers saw no driver and nobody getting out, so they pulled up on the car and shined a light and saw defendant with a gun, and he was a felon. Excessive lighting is not excessive force, particularly in a high crime area at night. United States v. Johnson, 2016 U.S. App. LEXIS 9004 (7th Cir. May 17, 2016) (dissent here):

Police approach stopped cars countless times every day; the number of parking tickets issued (usually to unoccupied cars) is high. Sometimes officers write tickets; sometimes they don’t; if the car is occupied, the difference may depend on what the driver says. The Fourth Amendment requires searches and seizures to be reasonable; it does not demand that police resolve all possible defenses and exceptions before asking the first question.

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. See, e.g., United States v. Dunn, 480 U.S. 294, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987); United States v. Contreras, No. 15-1279, 2016 U.S. App. LEXIS 7036, at *10 (7th Cir. Apr. 19, 2016). 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.” Florida v. Riley, 488 U.S. 445, 449, 109 S. Ct. 693, 102 L. Ed. 2d 835 (1989). Contrast Florida v. Jardines, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013) (discussing limits on what can be done in or near a home). It was the fact that the police approached the car that enabled them to see the gun. Everything else followed naturally (and legally).

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.) 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. See, e.g., Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984).

An undertone of Johnson’s brief is the suggestion that the police displayed excessive force, whether or not they had reasonable suspicion or even probable cause. Is it reasonable, Johnson wonders, for the police to use two cruisers and powerful lights just to determine whether someone deserves a ticket for a parking violation? (Johnson does not contend that excessive force was used, only that the display was over the top.) Was it necessary, he asks, for one officer to open a door and tell all occupants to put their hands where they could be seen?

The police call this a high-crime area, and perhaps the presence of multiple officers and electric lights—which Justice Brandeis called “the most efficient policeman,” Other People’s Money 62 (1933)—prevented the handgun from being used. But we need not try to determine whether the police put on an unnecessary display. This is a criminal prosecution, not a suit seeking damages. We held in United States v. Jones, 214 F.3d 836 (7th Cir. 2000), that damages, not the exclusion of evidence, is the appropriate remedy for the use of unreasonable force, when the application of reasonable force would have produced the same evidence anyway.