D.Mass: Reasonable suspicion is lower when the possible crime is more grave

Shortly after the Madrid train bombing, a Boston officer just trained in terrorism investigation saw a van parked outside an MBTA station that was of interest. Another officer drove up and approached the defendant in his van. The stop and questions were valid. When investigating potential terrorism, a sliding scale of reasonable suspicion exists. United States v. Ramos, 2008 U.S. Dist. LEXIS 66465 (D. Mass. August 29, 2008):

The location where conduct occurs also bears on whether it is sufficiently suspicious to justify further investigation. For example, the Supreme Court has stated that in the vicinity of the Mexican border “‘the likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor’ …. Different considerations would arise if, for example, reliance were put on apparent Mexican ancestry at a checkpoint operated near the Canadian border.” United States v. Martinez-Fuerte, 428 U.S. 543, 564 n. 17, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 886-87, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975)). Similarly, the First Circuit has held that “police are permitted to take the character of the neighborhood into account in deciding whether a stop is appropriate ….” … As these cases recognize, particular conduct may reasonably arouse suspicion in one place when it would not be suspicious in another place. Thus, in the instant case, common sense indicates that it was permissible for the police to consider that the conduct in question was occurring at a public transportation facility which, as the then recent Madrid bombing suggested, might be a particularly attractive target for a terrorist attack.

Common sense and case law also indicate that the assessment of whether conduct is reasonable for Fourth Amendment purposes may properly be influenced by the degree of danger that is being investigated. In other words, the gravity of the potential danger being addressed is one of the totality of the circumstances to be considered. For example, in Florida v. J.L., 529 U.S. 266, 273-74, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000), the Supreme Court stated, “[w]e do not say, for example, that a report of a person carrying a bomb need bear the indicia of reliability we demand for a report of a person carrying a firearm before the police can constitutionally conduct a frisk.” Similarly, in finding that checkpoints established to stop vehicles to search for drugs were unconstitutional, the Supreme Court stated, before 9/11, that “the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route.” City of Indianapolis v. Edmond, 531 U.S. 32, 44, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000).fn4

4. The Supreme Court’s statement in Edmond echoes Justice Robert Jackson’s observation in 1949 that:

If . . . a child is kidnaped and the officers throw a road block about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger.

Brinegar v. United States, 338 U.S. 160, 183, 69 S. Ct. 1302, 93 L. Ed. 1879 (Jackson, J., dissenting).

Comment: The 9/11 mantra slides the scale.