Saturday, June 23, 2007

Case o' The Week: Portland, Washington Fourth Amendment Victory

AFPD Lisa Hay brings home a great Fourth Amendment win, with a carefully-reasoned Judge Gould decision on a Portland stop. The case discusses pamphlets distributed to a community particularly sensitive to police violence, and is of particular interest for its examination of the reasonable fear of the defendant when "consent" was given. See United States v. Washington, __ F.3d __, Slip. Op. 7255 (9th Cir. June 19, 2007), decision available here.

Players: Great victory by Portland AFPD Lisa Hay. Decision by Judge Gould (right).

Facts: African-American defendant Bennie Washington was sitting in a lawfully-parked car in Portland, when he was approached by a white cop. Slip. Op. at 7260. The cop came up on Washington, shined his light in the car, and asked what he was doing. Id. The cop asked for consent to search the defendant: he agreed. Id. The cop then asked Washington to step out of and away from the car, and asked for consent to search the car. Id. Washington agreed, the cops found a gun. Id.

In the year and a half before this stop, Portland cops had shot and – in one instance, killed – African Americans during traffic stops. Id. Portland police had distributed pamphlets on how to respond to stops, which directed citizens to “follow the officer’s directions” when stopped and “if ordered, comply with the procedures for a search.” Id. at 7262. Washington was charged with § 922(g); the district court refused to suppress the gun concluding that Washington was not “seized,” and that he had voluntarily consented to the search. Id.

Issue(s): “Washington argues that the district court erred when it denied his motion to suppress because he was illegally seized by [the officers]. Washington also argues that even if he was not seized, the district court clearly erred in finding that he voluntarily consented to the search of his car.” Id. at 7263.

Held: “Although Washington voluntarily consented to the search of his person, we conclude that the encounter then escalated into an impermissible seizure. And even though Washington thereafter consented to the search of his car, during which the firearm was discovered, we conclude, contrary to the district court, that Washington’s consent was not voluntary. Alternatively, the search of Washington’s car and the firearm discovered therein were ‘fruits of the poisonous tree’ that followed in an immediate unbroken chain from his illegal seizure, and Washington’s consent to the car search did not purge the taint of his illegal seizure.” Id. at 7259-60.

Of Note: Judge Gould carefully dissects each temporal slice of the stop, and surveys a great deal of Fourth Amendment law on the way. Was the initial contact a “seizure?” No, explains Gould: “the Fourth Amendment is not implicated when law enforcement officers merely approach an individual in public and ask him if he is willing to answer questions.” Id. at 7263. Was Washington seized when the officer told him to leave the car, and asked for consent to search? No, explains Gould: “a reasonable person in Washington’s situation would have understood that the police officer might ask him to exit the vehicle in order to conduct the search because of valid concerns for officer safety.” Id. at 7265. Ultimately, however, the defense prevails because the consent search degenerated into a seizure – particularly because the pamphlets had ordered citizens to comply with cops’ orders. Id. at 7266-68.

How to Use: Don’t limit Washington to this “pamphlet” scenario. This opinion is an exhaustive review of the tests and factors necessary to thread the Fourth Amendment needle and win a suppression search. See, e.g., id. at 7271-76 (discussing “fruits of poisonous tree” analysis). It’s worth a close read as a roadmap for a suppression challenge.

Washington is also a helpful reminder that a Fourth Amendment challenge requires slicing an entire encounter into precise temporal events. AFPD Lisa Hay refused to be cowed by two consents (person and car) in this case – by focusing the Court on each time segment, she brought home a case-dispositive win.

For Further Reading: While it’s not clear that this is the pamphlet involved in this case, the Portland Police Department still has internet “advice” for its citizens on how to submit to police demands. See Portland Police Department website here. The web page helpfully explains that Portland cops can stop a person “on the street if they observe a violation, if they are investigating a complaint or they believe the person has or is about to commit a crime.” (Terry stops, one assumes). Portland citizens shall “[i]f ordered to do so, comply with the procedures for a search.” Id.

Maybe worth a visit to the local gendarmes’ web site before your next Fourth Amendment motion?

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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