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Probable cause and stopping too close to crosswalks

By Dale Conder posted 11-30-2016 12:04

  

Wisconsin law prohibits stopping a car within 15 feet of a crosswalk unless you are "actually engaged in loading or unloading or in receiving or discharging passengers." The exception applies only if the car is attended by a licensed driver. Randy Johnson was a passenger in the back seat of a car that was stopped within the 15-foot zone, and investigation revealed it was not being attended by a licensed driver. One police car pulled parallel to the car while the lights of a second car--parked behind--shone through the car's windows. The police saw Johnson trying to hide a gun. As it turned out, being in a car that was illegally stopped was the least of Johnson's problems that night; as a convicted felon he was prohibited from possessing a gun. He was charged as a felon in possession and--after the district judge denied his motion to suppress--pleaded guilty and preserved his right to appeal the suppression issue. The district judge concluded that the officers had probable cause to issue a ticket for stopping in the prohibited zone.

Johnson's lawyer, however, argued that the officers did not wait long enough to see if the car fell within the loading-unloading-receiving-discharging-passengers exception. The district judge in rejecting this argument held that the officers need not negate every possible defense, but could issue tickets and leave to the judicial process whether the exception applied. Furthermore, there was no driver in the car; therefore, the exception, qualified by its proviso, was not satisfied. In a 2-1 decision, a Seventh Circuit panel affirmed in a six-page opinion written by Judge Easterbrook.  

Judge Easterbrook's opinion agreed that the police need not "resolve all possible defenses and exceptions before" asking the driver or occupant why the car is stopped. Furthermore, the Fourth Amendment does not require officers approaching a car on a public street to have any reason for approaching the car. Johnson based his argument, at least in part, on his claim that the use of two police cars with their bright lights was over the top; it was a "show of excessive force." The court did not reach this issue because "this is a criminal prosecution, not a suit seeking damages." Damages, not exclusion of evidence, is the appropriate remedy when the same evidence would have been discovered had the officers behaved reasonably. 

The en banc Seventh Circuit is hearing oral argument in this case today. Will the Seventh Circuit follow Easterbrook's opinion or that of the dissenting Judge Hamilton? The majority and dissenting opinions offer a stark contrast in their description of events. 

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