Timothy P. O'Neill 

Chicago Daily Law Bulletin
Volume: 153 Issue: 250

December 21, 2007

Consent to Search Doesn't Come Gift-Wrapped

Don't worry about getting me a Christmas gift this year. I already got one — Justice Mary W. McDade's terrific dissent in People v. Andres Roa, No. 3-05-0420, 3d District Appellate Court, decided October 31.

On the surface, Roa looks no different than dozens of other cases: cop stops driver, driver ''voluntarily consents'' to show officer his contraband drugs, driver gets 15 years in Stateville. To a layperson, it is a scenario so implausible as to be laughable; yet the American judicial system buys this story thousands of times a year. Fortunately, McDade said ''No thanks'' to the usual judicial Kool-Aid and instead offers an astonishingly honest account of what is really happening in these cases.

On one level, the facts are unremarkable. Sergeant Floyd Blanks pulled Andres Roa over for speeding on I-80 in Henry County. Blanks told the defendant he was going to issue him a written warning. Blanks then returned to his squad car to prepare the warning. When he returned, he gave the defendant the written warning. Blanks then asked several questions before asking whether the defendant would allow him to search the car. Roa agreed. Another officer soon arrived on the scene, and Blanks and he proceeded to conduct a 20-minute search. With the use of a fiberoptic scope, the officers discovered 24 pounds of cocaine hidden in the car. Roa was subsequently convicted and sentenced to 15 years in the penitentiary.

The two justices in the 3d District majority agreed that the search was proper, but they arrived at this conclusion through different routes. Justice Vicki R. Wright held that the conversation between Blanks and the defendant following the issuance of the written warning legally constituted a second seizure, which needed to be independently justified.

Wright held that during the first colloquy before he issued the warning, Blanks had acquired reasonable suspicion to justify a Terry stop of the driver.

Wright noted that Blanks pointed to several factors that supported his suspicion, especially defendant's nervous behavior and the car's strong odor of air freshener. She went on to find that Roa voluntarily consented to the search.

Justice Tom M. Lytton, specially concurring, contended that Blanks' second conversation with the defendant did not constitute a second seizure. Other than that, he agreed with Wright's reasoning and conclusion that Roa had voluntarily consented to the search.

McDade begins her dissent by noting her agreement with the law as set out by her colleagues in the majority. Her disagreement, however, centers on the application of the law to the facts in this case.

First, she notes that this was no ordinary traffic stop for speeding. The defendant was clocked at 71 mph in a 65 mph zone. McDade chides the majority for refusing to concede the obvious: ''Blanks did not stop Andres Roa for driving six miles over the speed limit because he wanted to keep the highway safe for other motorists. The fact is that he is a drug interdiction officer and as such he cruises then interstate trolling for drug offenders.''

At the suppression hearing, Blanks admitted that he had made around 3000 drug interdiction stops in his 17 year career. McDade observes that the so-called traffic stop ''was nothing more than subterfuge from the outset.''

McDade concedes, of course, that pretext stops do not violate the Fourth Amendment. See Whren v. U.S., 517 U.S. 806 (1996). But her point is far subtler. She argues that an officer making a bona fide traffic stop will see things differently from an officer who is conducting a drug interdiction stop on the pretext of a traffic violation.

She wrote, ''For an officer already convinced that he is dealing with a drug courier, objectively innocent behavior morphs into indicators of criminal behavior: nervousness and fumbling can easily become 'extreme' or 'excessive,' a simple air freshener becomes a masking agent and magically provides reasonable articulate suspicion of drug dealing.'' The officer's mindset automatically casts a ''sinister patina'' over his ordinary observations.

And this leads McDade to a troubling fact that many judges simply refuse to confront. Because Fourth Amendment law is mostly developed through cases reviewing suppression motions and the possible use of the exclusionary rule, the police in these cases never come up empty-handed. By definition, the police have to have been either correct — or at least lucky — in every single review of a suppression hearing.

This simple, yet often-overlooked, fact has serious implications. The majority in Roa correctly points out that the U.S. Supreme Court has held that reviewing courts owe deference to the experience and specialized training of police officers when evaluating whether an officer's observations resulted in reasonable suspicion; this deference is based on the fact that trained officers may very well notice details that will elude a lay person. U.S. v. Arvizu, 534 U.S. 266 (2002); U.S. v. Cortez, 449 U.S. 411 (1981).

Yet Justice McDade reminds us that — by definition — reviewing courts only apply this presumption in cases where the police in fact have found incriminating evidence. Thus, the universe of cases in which the presumption is used is automatically rigged in favor of the police. In the words of McDade, ''As judges, we get a false sense of the reliability [of the indicators police] use in profiling drivers. The only time these stops come to our attention is when contraband is actually found during a search of the vehicle. It tends to appear, therefore, that the law enforcement officers are right one hundred percent of the time.''

And what makes this case so fascinating is that Blanks actually testified about his percentage of ''hits'' in drug interdiction stops. At the suppression hearing, Blanks estimated that although he has probably made 1000 successful interdiction stops, he has also probably made 2000 unsuccessful stops.

That is, on those occasions when Blanks believed he has reasonable suspicion of drug activity, he found drugs only one-third of the time. Even Wright for the majority conceded that the fact that Blanks fired blanks two-thirds of the time was ''disconcerting and entirely relevant.'' (For an eye-opening article on this general subject, see Malcolm Gladwell, ''Dangerous Minds: The Myth of Criminal Profiling,'' The New Yorker, Nov. 12, p.36.)

Finally, McDade turned to the issue of whether Roa actually gave consent to the scope of the very extensive search carried out here. She found insufficient evidence that he consented to the search of the whole car, rather than just the trunk. Yet even if he did consent to the search of ''the car,'' she argues that the reasonable motorist would believe that this would only entail the officers perhaps looking at the seats and floor of the car, and maybe in the glove compartment.

Instead, the police here conducted a 20-minute search with a fiberoptic scope that resulted in ''the virtual dismantling of the vehicle on the side of the highway.'' For this a search this extensive, not only would an ordinary citizen assume the police would need a warrant; ''Indeed,'' McDade notes, ''I would think a warrant would be necessary.''

So where can we look for relief? Certainly not from the Illinois Supreme Court. Its reliance on ''limited lockstep'' has in effect expunged Article I, Section 6 from the Illinois Constitution. See People v. Caballes, 221 Ill.2d 282 (2006) (ironically, yet another case where a foreign-appearing driver was pulled over for doing 71 in a 65 mph zone). The Illinois Supreme Court pretty much accepts whatever the U.S. Supreme Court says about searches and seizures. And the court hides its refusal to independently develop a fair and just body of Illinois search and seizure law under the pseudo-theoretical veneer of ''lockstep.''

I think one development that might begin to bring the judiciary back to reality will be after we have crunched the numbers of several years of the racial profiling traffic stop study that is being conducted pursuant to Illinois law. 625 ILCS 5/11-212. Some of the preliminary statistics can now be found at the Illinois Department of Transportation Web site, www.dot.il.gov. These numbers are necessary to provide empirical data so that courts can consider the whole universe of stops, rather than only those stops that have resulted in the recovery of contraband.

The more information courts have about how drug interdiction stops are actually conducted, the better they will be able to evaluate their fairness and legality. We have to look at all stops — — not just the successful ones. McDade deserves our thanks for reminding us of this too-often-ignored point.