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Despite believing police officers abused their authority in ordering a man to stop without reasonable suspicion, a federal appeals court said U.S. Supreme Court case law requires it to uphold the man’s conviction. The 2nd U.S. Circuit Court of Appeals reluctantly ruled defendant Swazine Swindle’s drug conviction must stand because the Fourth Amendment does not require the exclusion of evidence obtained as a result of police unreasonably initiating a stop. “Although we are precluded from holding that the officers’ unreasonable order violated the Fourth Amendment, we believe that it was an abuse of authority for which Swindle and others like him might seek redress under a source of authority such as the Fourteenth Amendment or some provision of state law,” Judge Wilfred Feinberg wrote in United States v. Swindle, 03-1773. In June 2002, a team of Buffalo, N.Y., police officers working as part of an FBI task force was patrolling the city, looking for a 5-foot 8-inch, 145-pound black man named Kenneth Foster-Brown, when they saw Swindle, who stands 6 feet 1 inch tall and weighs 215 pounds. Swindle was pulling up to a known drug house in a black Pontiac Bonneville. Foster-Brown had reportedly been seen “near” a car of the same description. Swindle entered the house, came out a short time later, got into the car and drove away. The police activated their strobe light and ordered Swindle to pull over. But he disobeyed the order and kept driving, violating two traffic laws during a chase in which police saw him reach into the visor above the driver’s seat, grab a plastic bag and throw it out the window. Swindle eventually pulled over and tried to flee on foot. He was captured and the bag he had thrown from the car was recovered. Inside were 33 small bags of crack cocaine. Western District Court Judge William Skretny adopted the report of a magistrate judge and refused to suppress the evidence. Swindle ultimately pleaded guilty to possessing a controlled substance. At the circuit, Judges Feinberg, Richard Cardamone and Barrington D. Parker Jr. said that “the order to pull over was indeed unreasonable.” “It appears that the only obvious physical characteristic the men shared was the color of their skin,” the panel said. The behavior of the police was analyzed under case law stemming from the seminal case of Terry v. Ohio, 392 U.S. 1 (1968), in which the U.S. Supreme Court said police officers may “seize” a person and conduct a limited search for weapons if they “reasonably” believe the person is involved in criminal activity. But Feinberg said the circuit has never “squarely decided whether reasonable suspicion may be premised upon events occurring after a person is ordered to stop but before he or she is physically apprehended.” Feinberg said some courts that have confronted the question, such as the 3rd and D.C. circuits, “have held or suggested that events occurring between the initiation and completion of a Terry stop may contribute to a finding of reasonable suspicion for the stop.” Others have stressed that the police, from the beginning of the encounter, must have a good reason to stop a person, Feinberg said, a view that is shared by the 2nd Circuit. “Upon consideration of the issue, we believe that a police officer should not be empowered to order someone to stop unless the officer reasonably suspects the person of being engaged in illegal activity,” he said. “We find this position most faithful to Terry‘s own proscription that, when stopping a suspect, a police ‘officer’s action [be] justified at its inception.’” Feinberg then explained the problem facing the panel in light of the “clear” rule that police cannot turn an illegal stop into a legal stop by pointing to incriminating behavior that occurs after the stop. “And if subsequent incriminating events cannot justify an unreasonable stop, then it logically follows that subsequent incriminating events should not be able to justify an unreasonable order to stop,” he said. “Unreasonable stops and unreasonable orders to stop are both abuses of police power, and we see no principled basis for prohibiting the former and not the latter. “It appears, however, that current Fourth Amendment jurisprudence draws just that distinction.” ‘HODARI’ RULING Feinberg said that the Supreme Court’s ruling in California v. Hodari D., 499 U.S. 621 (1991), “strongly implies — without explicitly holding — that an unreasonable order to stop does not violate the Fourth Amendment and that the grounds for a stop may thus be based on events that occur after the order to stop is given. In that case, the suspect Hodari was standing with a group of young men in a high-crime neighborhood. Once he saw officers approaching, he fled, and during the pursuit, before an officer tackled him, Hodari discarded cocaine. Feinberg made two points: first, that the Hodari Court “accepted as true” that the police pursuit “qualified as a show of authority calling upon Hodari to halt” and second that the Supreme Court relied “entirely upon the state’s concession” that the police, at the moment they gave chase, “did not have the reasonable suspicion required to justify stopping Hodari.” “Taken together, these two observations show that the Court reached its holding even while assuming for the sake of argument that the police had issued an unreasonable order to stop,” Feinberg said. “ Hodari D. thus implicitly authorized a defendant’s seizure based on events occurring after issuance of an unreasonable order to stop.” Therefore, Feinberg said, the 2nd Circuit was “compelled to conclude” that the magistrate judge and Skretny did not err in considering Swindle’s actions while being chased. The court could not say that the Fourth Amendment requires a police officer to have reasonable suspicion that criminal activity is afoot before ordering a person to stop, Feinberg said, but the order to Swindle was “a clear abuse of police authority.” “Requiring a police officer to have reasonable suspicion to order a stop would be truer to Fourth Amendment values than the current rule,” he said. The circuit went on to conclude that, under Fourth Amendment case law, Swindle “was not seized until the police physically apprehended him, and therefore that the drugs did not have to be suppressed as the fruit of the poisonous tree.” Feinberg said that “a substantial argument could be made that a broader definition of ‘seizure’ — or some other remedy — is required to adequately protect Fourth Amendment values from the harms flowing from police initiation of Terry stops without reasonable suspicion.” And “even if the kind of order given in Swindle’s case is rare — and we do not suggest that it is — we see no persuasive reason for the law to tolerate it.” But Supreme Court precedents controlled the court, he said, and “a remedy for Swindle’s Fourth Amendment complaint can come only from a higher authority.” John Humann and Marybeth Covert of the Federal Public Defender’s Office represented Swindle. Assistant U.S. Attorney Michael DiGiacomo and U.S. Attorney Michael Battle represented the government.

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