Fascinating Footnote 3

The most famous footnote in all the world is generally acknowledged to be footnote 4 in United States v. Carolene Products Company, 304 U.S. 144 (1938). That footnote introduced to constitutional law the concept of tiered levels of scrutiny, an idea that deeply influenced the subsequent evolution of equal protection jurisprudence. Although not likely destined for footnote 4 status, a footnote in a recent court of appeals decision captured my interest.

The case is State v. Harwood, __ N.C. App. __ (2012). The case began when a Buncombe County officer received an anonymous tip that, later that day, the defendant would be selling marijuana at a particular convenience store, and that the defendant would be driving a “white vehicle.” The officer had heard from “people in the community” that the defendant had “supposedly” been selling drugs for some time. The officer, joined by a colleague, went to the convenience store, and saw the defendant pulling out of the parking lot in a white vehicle. The officers followed. The defendant accelerated, then pulled into a housing development and into the driveway of a residence where he did not live. The officers pulled in behind him, approached the vehicle, and handcuffed the defendant at gunpoint. The officers apparently read the defendant his Miranda rights, and he admitted selling drugs and agreed to let the officers search his home, where they found more drugs and a gun. At some point after the initial stop, the officers determined that there was an outstanding arrest warrant for the defendant. The defendant was charged with various drug and firearm offenses.

The defendant moved to suppress, arguing that the officers lacked reasonable suspicion for the stop. The motion was denied by the trial judge, the defendant was convicted, and he appealed. The court of appeals ruled for the defendant. First, the court concluded that although the officers did not conduct a traffic stop, they nonetheless seized the defendant by detaining and handcuffing him. Second, the court found that the officers did not have reasonable suspicion to support the detention. The court stated that the anonymous tip was not detailed and that there was little to corroborate it other than the defendant’s mere presence at the store. That part of the opinion is pretty interesting, and the issue strikes me as a closer call than the opinion suggests it is, but it isn’t what I want to focus on.

At one point in its brief, the state argues:

Even if this Court finds that there was insufficient probable cause to arrest the defendant based on the activities on 15 July 2010, there was already an outstanding warrant for defendant’s arrest. The Agents could have lawfully taken him into custody based on that outstanding warrant.

There are two possible interpretations of this argument. The state could be arguing that the warrant, once it became known to the officers, justified escalating the stop into a full-blown arrest. Or it could be arguing that the entire interaction, including the stop, was justified based on the outstanding warrant, even though that warrant was unknown to the officers at the time of the stop.

In footnote 3, the court addresses this argument:

Although the State asserts in its brief that the existence of a warrant authorizing Defendant’s arrest justified the decision of the investigating officers to take him into custody, it has not cited any authority in support of that proposition and we have not found any such authority in the course of our own research.  A careful examination of the record discloses that the investigating officers did not know that this warrant existed at the time that they detained Defendant and decided to detain him because they believed that they had sufficient “reasonable articulable suspicion” to do so.  As a result, we take no position concerning the validity of the State’s assertion.

I’m intrigued, but confused. It seems like the court is saying that the state is arguing that the outstanding warrant justified the decision to “detain[]” the defendant, i.e., that the entire interaction was justified by the outstanding warrant. So it seems as though the court is adopting the second of the two possible readings I outlined above. But if that is the state’s argument, how can the court rule for the defendant while “tak[ing] no position concerning the validity” of that argument? How can the court conclude that the stop is bad without rejecting an argument that could support the stop?

I should add that, if that is what the state is arguing, it isn’t a ridiculous argument. In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court stated that whether a stop is reasonable under the Fourth Amendment is an objective question, one in which “the actual motivations of individual officers” plays no role. Objectively, one could argue, stopping and arresting a person who is subject to an outstanding warrant is eminently reasonable. There aren’t a lot of cases on point, but the Ohio Court of Appeals accepted an argument along those lines in City of Dayton v. Click, 1994 WL 543210 (Ohio Ct. App. 2 Dist. Oct. 5, 1994) (unpublished). In Click, officers stopped the defendant without reasonable suspicion but court ruled that the defendant “had no reasonable expectation of privacy . . . because . . . there were outstanding warrants for his arrest” notwithstanding the fact that “the officers were not aware of their duty to arrest [the defendant] until approximately twenty minutes after the stop.”

However, Click and its progeny were overruled in the later case of State v. Gardner, 2011 WL 5328637 (Ohio Ct. App. 2 Dist. Nov. 4, 2011) (unpublished). A smattering of other cases are generally in accordance with Gardner. Moreno v. Baca, 431 F.3d 633 (9th Cir. 2005) (suspicionless arrest and search were not retroactively rendered reasonable when it was later revealed that the suspect had an outstanding arrest warrant); Fulson v. City of Columbus, 801 F.Supp. 1 (S.D. Ohio 1992) (denying summary judgment in civil rights action based on assertedly unlawful arrest and stating that “[i]f . . . the officers did not know about the outstanding warrants, and if there was no other valid basis for plaintiff’s arrest, then plaintiff may be able to establish that his arrest was invalid, even if there were in fact warrants outstanding for plaintiff’s arrest”). So although the state’s argument is at least colorable, courts seem generally to have rejected it.

The narrower reading of the state’s argument – that the arrest warrant did not justify the initial stop, but did justify the conversion of the stop into an arrest – could be developed into another pretty interesting argument. The state might argue that even if the initial stop was faulty, the officers’ subsequent discovery of the arrest warrant provided an intervening basis for the defendant’s detention and arrest, and so purged the taint of the unlawful stop as to any statements made by the defendant and any evidence found after the officers learned of the arrest warrant. The court of appeals concluded that the defendant’s statement and his consent to search “directly resulted from the investigating officers’  decision to detain him,” and that nothing purged the taint of the initial stop, but it didn’t directly address the possibility that the discovery of the arrest warrant could have purged the taint. It doesn’t sound like the state advanced that argument, at least not in that precise form. It isn’t clear from the opinion or the state’s brief when the arrest warrant was discovered, so maybe the facts wouldn’t support the argument. But if the facts support it, it’s a decent argument, one that has divided a number of courts across the country. Michael Kimberly, Comment, Discovering Arrest Warrants: Intervening Police Conduct and Foreseeability, 118 Yale L.J. 177 (2008) (collecting cases, and noting split of authority concerning “whether the discovery of an outstanding warrant in the course of an illegal detention dissipates the ‘taint’ of the initial illegality, permitting entry of evidence seized in a search incident to arrest”); State v. Hill, 725 So.2d 1282 (La. 1998) (taint of improper Terry stop attenuated by subsequent discovery of outstanding warrants; faulty stop did not render inadmissible evidence seized during search incident to arrest).

Footnote 3 may be no footnote 4, but it certainly provides some food for thought.