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Arrest – Probable Cause – Specific Examples: Obstructing

State v. Pdero L. Nieves, 2007 WI App 189, PFR filed 7/6/07
For Nieves: Ralph Sczygelski


¶13 We conclude that probable cause to arrest for obstruction existed. An accumulation of factors contributed to Olsen’s suspicion that “Anthony Otero” was a false name which, in turn, led to the search. Olsen had been maintaining surveillance on a known drug house and a vehicle bearing plates registered to a known drug dealer’s vehicle. The vehicle, a different make than the one to which the plates were issued, already had aroused his suspicions when, upon following it, Olsen observed some interchange between Batteast’s car and the Taurus occupied by Green and Nieves. The Taurus’ dark window tint prompted Olsen to stop that vehicle. Green, a known associate of Batteast, and the Taurus’ temporary license plates further raised Olsen’s suspicions. Adding those facts to the inability to verify Nieves’ identity and Olsen’s knowledge that people sometimes give false names when they have outstanding arrests, a reasonable police officer would have believed that Nieves was guilty of obstruction.

¶14 Granted, there may have been an innocent explanation as to why the name “Anthony Otero” yielded no results when Olsen ran it through the database. However, an officer is not required to draw a reasonable inference that favors innocence when there also is a reasonable inference that favors probable cause. …

In other words, the police stopped Nieves on suspicion of drug activity and, when he couldn’t produce an ID but instead provided a name that the police ran for a warrant check without result, he was arrested for … providing a false name. One way or another, if you don’t have an ID you’re going to end under arrest, either for a warrant under the name you provide or for obstructing if there’s no warrant. Talk about damned if you do, damned if you don’t.Because the police had probable cause, they were entitled to conduct a search of his backpack, on a search-incident-to-arrest theory (the court is vague about this, but it’s nonetheless obviously the theory relied on). Very strong dissent by Judge Brown, ¶¶18 et seq. which, distilled, makes the point that, sure, the cops had reasonable suspicion for the stop and even if there is no clear line between reasonable suspicion and probable cause, “(t)he officer … could have held Nieves on a Terry stop until the identity problem had been resolved,” ¶26. Judge Brown’s conclusion is well worth repeating:

¶27 I fully realize that, while courts often opine that “reasonable suspicion” is a less demanding standard than “probable cause,” there is no clear sense and no offered guidance as how to differentiate between the two in a mathematically finite way. The difference between the two standards seems to move along a spectrum that defies fixed points. I am convinced that this inability to clearly define “probability” with any certainty is what gives succor to the majority’s view that the facts in this case allowed the “inference” of obstructing. But I am not so satisfied. I dispute the relationship of the premises (Nieves was at a possible drug scene and his name was not in the database) to the conclusion drawn by the officer (Nieves was probably lying about his identity).

¶28 If we are to allow officers to arrest persons who are suspected of being at a drug-related scene simply because a name given to the officer is not in a database, officers can use that database failure to search a car, search a person, search a home, all without a warrant. It is my view that the inferences an officer draws from the facts must be of reliable vitality before privacy interests entirely give way. If the facts are less reliable, the government’s interest in stopping illegal drug activity must be measured against existing privacy interests. Here, the governmental interest in ferreting out the true information as to Nieves’ identity could have been accomplished without intruding into the private realm of Green’s automobile. It is unreasonable to entrust freedom from unreasonable search and seizure to an unknown computer database. I respectfully dissent.

The implications go well beyond the immediate facts, though they give rise to concern as well. (If there’s no warrant under a given name, the name isn’t in the government “database” and is therefore problematic?) The urge to categorize is nothing more or less than an attempt to derive an orderly view of a messy if not chaotic world. And what better way to impose order than in binary form: Reasonable suspicion or probable cause. Yet, as Judge Brown recognizes, this is an often notional exercise, because there simply is no marker telling you when you’ve gone past the one into territory occupied by the other. There are surprisingly few Wisconsin cases on the point, but as other courts mention, “the line between a lawful Terry stop and an unlawful arrest is not bright,” U.S. v. Vega, 72 F.3d 507, 515 (7th Cir. 1995) (drawing guns on suspect and “asking” (!) him to get into a police car for transport to another site didn’t amount to arrest). Perhaps the clearest expression of this tension is (as might be expected) Judge Posner’s, in United States v. Burton, 441 F.3d 509, 511-512 (7th Cir. 2006), therefore quoted at length:

The principle that emerges from the cases is that the less protracted and intrusive a search is, the less suspicion the police need in order to be authorized by the Fourth Amendment to conduct it, and vice versa. As we explained years ago in United States v. Chaidez, 919 F.2d 1193, 1197-98 (7th Cir. 1990) (citations omitted), It is “common sense that if the Fourth Amendment is intended to strike a balance between the interest of the individual in being left alone by the police and the interest of the community in being free from the menace of crime, the less the interest of the individual is impaired the less the interest of the community need be impaired to justify the restraint.” Consideration of the extent of intrusion abounds in modern Fourth Amendment doctrine. Stops that do not entail detention need not be justified by any suspicion. Searches incident to arrest may be justified by the reduced marginal intrusion of searching a defendant already in custody. The Court based Terry itself on the fact that a protective search is a “brief, though far from inconsiderable, intrusion upon the sanctity of the person.” Recently the Court upheld automobile checkpoints where the police made stops without any individual suspicion, in part because of the minimal “intrusion resulting from the brief stop at the sobriety checkpoint.”. . . The scale extends in both directions. If an intrusion is greater than a traditional arrest, probable cause is not enough.

These cases describe a continuum in which the necessary degree of confidence increases with the degree of intrusion. A “stop” without limiting the suspect’s freedom requires no suspicion; a brief detention calls for reasonable suspicion; an arrest requires probable cause; invasive techniques such as surgery require more. What if the intrusion lies somewhere between Terry and arrest, neither a “brief, investigatory” stop nor a traditional arrest, where the defendant is handcuffed, trundled into a paddy wagon, carted to the station, fingerprinted, and held in a 12′ x 8′ cell? One answer would be to deny that there is a “between”–to insist that all encounters must be either Terry stops or arrests. Yet circumstances defy such simple categorization, and if a line must nonetheless be drawn it will be arbitrary, with nearly identical cases on opposite sides. Trying to force a continuous world into two categories is not only impossible but also unnecessary when the text of the Constitution calls for inquiry into “reasonableness”. Why abandon the search for reasonableness when the intrusion falls between arrest and stop?

Pigeonholing is no boon for defendants: it has put considerable pressure on the limits of the Terry doctrine. Both the permissible reasons for a stop and search and the permissible scope of the intrusion have expanded beyond their original contours, in order to permit reasonable police action when probable cause is arguably lacking.

That last paragraph brings us right back to Judge Brown’s dissent: the police could have held Nieves under Terry “until the identity problem had been resolved.” One might ask, What identity problem? Nieves was a passenger not a driver; we don’t have a requirement that we carry IDs. No matter: Judge Brown’s suggestion is preferable to the majority’s solution to the problem, which is simply to translate the “problem” into probable cause. But the dissent’s solution itself neatly exemplifies Judge Posner’s astute point that pigeonholing greatly pressurizes the Terry doctrine.Interesting discussion in In re Antonio B., Cal App No. B203662, 8/28/08 (handcuffing during investigation of minor, non-violent offense tantamount to arrest; court drawing useful distinction to circmustance where “the officer had a reasonable basis to believe the detainee presented a physical threat to the officer or would flee”).


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