DEA could use the ruse of an accident to make a seizure when they already had probable cause just to protect an undercover operation

The Ninth Circuit held Friday, in a well reasoned opinion because of the reasonabless of the accident without injury, that the DEA could effect a stop and seizure of a vehicle by the ruse of a traffic accident because they already had probable cause. The “unorthodox method” of this stop was to maintain the cover of an undercover operation, which the Ninth Circuit found reasonable. United States v. Alverez-Tejeda, 2007 U.S. App. LEXIS 13378 (9th Cir. June 8, 2007):

The parties agree that the DEA agents had the right to seize the car without a warrant …. The agents had probable cause to believe that the car had been “used for carrying contraband” because they had purchased drugs from inside it as part of their investigation. They also had probable cause to believe the car was carrying contraband on the day of the seizure based on several intercepted phone calls and direct surveillance. The only issue in doubt is whether their unorthodox method of seizing the car was constitutional.

An otherwise lawful seizure can violate the Fourth Amendment if it is executed in an unreasonable manner. See United States v. Jacobsen, 466 U.S. 109, 124 (1984). “To assess the reasonableness of th[e] conduct, [a court] must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Id. at 125 (internal quotation marks omitted). While agents have discretion to decide “how best to proceed” in conducting a covert operation, they must abide by the “general” protections of the Fourth Amendment. Dalia v. United States, 441 U.S. 238, 257 (1979).

The benchmark for the Fourth Amendment is reasonableness, which requires us to weigh the government’s justification for its actions against the intrusion into the defendant’s interests. Jacobsen, 466 U.S. at 125. The government here certainly had important reasons for employing this unusual procedure in seizing the car. First, the agents wanted to stop the drugs before they reached their ultimate destination–a patently important goal. Second, they wanted to protect the anonymity of the ongoing investigation–another vital objective. The Supreme Court has emphasized “the necessity for some undercover police activity,” Lewis v. United States, 385 U.S. 206, 208-09 (1966), and explained that “[a]rtifice and stratagem may be employed to catch those engaged in criminal enterprises[;] … to reveal the criminal design; [or] to expose the illicit traffic, … the illegal conspiracy, or other offenses,” id. at 209 n.5 (quoting Sorrells v. United States, 287 U.S. 435, 441-42 (1932)) (first alteration in original). Protecting the secrecy of an ongoing investigation is a well-recognized consideration in the administrative seizure process. See 18 U.S.C. § 983(a)(1)(D)(v) (providing for an extension not to exceed 60 days for notifying interested parties where more prompt notice would “seriously jeopardiz[e] an investigation”).

At the same time, the intrusion into Alverez-Tejeda’s Fourth Amendment interests was relatively mild. First, Alverez-Tejeda argues that the agents were unreasonable in using force to seize the car. While the police may not use excessive force in conducting a search or seizure, see, e.g., Winterrowd v. Nelson, 480 F.3d 1181, 1184, 1186 (9th Cir. 2007), the force here was minimal. The district court found that the agent in the truck bumped the stationary car with “enough force … so that the tap was felt by Defendant to the extent that it caused him to get out of his car and examine his bumper” (emphasis added), but the truck was moving at only 1 to 2 miles per hour and the tap caused no harm to the couple and left no scratch on the car. A tap is a use of force, to be sure, but it is hardly excessive. The staged collision involved just enough force to pull off the “drunk driver” ruse, without causing physical injury to the suspects.

This would be a different case if the government’s tactics created a serious risk of bodily injury or escalation of violence, which might well have outweighed the interest in protecting the investigation. The balance may well be different if the police simulated a car heist by running Alverez-Tejeda off of the road or staged a car-jacking by holding him up at gunpoint. In this case, however, the use of force and potential for physical harm were within reasonable bounds.