AL: Refusal to consent plus past history not reasonable suspicion / IL: Search of car of man who drove up to his brother’s house being searched was unreasonable

The officer heard of defendant’s past association with drugs, and he pulled him over. When he asked for consent, defendant refused. The officer lacked reasonable suspicion for the stop, and the refusal of consent could not be used to bolster reasonable suspicion. Smith v. State, 2006 Ala. Crim. App. LEXIS 192 (September 29, 2006, released for publication February 12, 2007):

It appears that the “reasonable suspicion” that Officer Robinson had to detain Smith was predominately that an officer had informed him that he believed that Smith had been previously associated with drugs. This was insufficient to detain Smith. See R.W. v. State, 913 So. 2d 505, 510 (Ala. Crim. App. 2005) (“[R]easonable suspicion is determined not by looking at each circumstance individually, but by looking at the totality of the circumstances surrounding the indictment.”). In this case, there was no “particularized and objective basis,” United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981), for detaining Smith. Smith was stopped about 7:30 p.m. for “no tag light” and the officer acknowledged that he had no belief that Smith was involved in any criminal activity; the other officer’s indication that he believed that Smith had at some time in the past been involved with drugs did not supply a “particularized and objective basis” for Smith’s detention.

Moreover, Smith’s refusal to consent to the search could not have supplied the necessary “reasonable suspicion.”

“‘[I]nformation obtained . . . during this further detention cannot be considered in evaluating whether the trooper had reasonable suspicion to further detain the defendant in the first place.’ [State v.] Washington [623 So. 2d 392] at 397 [(Ala. Crim. App. 1993)] A defendant’s ultimate refusal to consent to a search of the vehicle cannot be considered as a factor in the officer’s determination of reasonable suspicion. State v. Washington, supra.”

Peters v. State, 859 So. 2d at 454. See also Illinois v. Caballes, 543 U.S. 405, 407, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005); Arnold v. State, 601 So. 2d 145, 149 (Ala. Crim. App. 1992).

Defendant drove up to his brother’s house and was looking in console when officers shined flashlights into window, ordered him to show hands, and then one opened passenger door to search car. Trial court suppressed search, and state relied on officer safety as ground for search. The officers used commands and one had an M-16 rifle on defendant. The search of the house was for a relatively small amount of marijuana and there was no indication that anybody was armed or dangerous, especially the younger brother who just pulled in the driveway. People v. Tate, 367 Ill. App. 3d 109, 304 Ill. Dec. 883, 853 N.E.2d 1249 (2d Dist. August 10, 2006, released for publication September 22, 2006):

Looking objectively at the facts in this case, we find that defendant’s act of pulling his vehicle into the driveway of the residence at approximately 8:15 p.m. was not inherently suspicious. The search warrant provided that the officers were to search for evidence relating to the possession of cannabis, and no one testified to a suspicion that drugs were being sold from the residence; therefore, the danger known to accompany drug trafficking was not a factor here. The trial court found that the neighborhood was not dangerous. Furthermore, the trial court found that the police were familiar with the occupants of the residence and had no reason to believe they were armed or violent. None of these findings were disputed by the State. We do not believe that the remaining allegation provided by the State, the fact that defendant was wearing a purple wig and sunglasses, was a basis to suspect that criminal activity was afoot, particularly because it was the night before Halloween. While police officers should take precautions to ensure that neither they nor their fellow officers are exposed to needless danger, the facts in this case are not enough to warrant a person of reasonable caution to believe that defendant’s seizure, while he was sitting in his car, was required for the protection of the officers. See Clay, 640 F.2d at 159.

Officer using knee to hold down plaintiff was reasonable, and more force was reasonable when plaintiff tried to get up. Chambers v. Doe, 453 F. Supp. 2d 858 (D. Del. September 26, 2006).*