Zimmer, Duncan & Cole

When Criminals Help Defend Our Freedom

In state Supreme Court news this week, it released its second criminal law opinion of the year, State v. Robert Thomas Johnson (2011 S.D. 10). This case is at the cross-roads of two ideals: superb, vigilant police work and the liberty to go about our business, free from unnecessary police interaction.

Robert Johnson appealed his conviction for robbing a video lottery casino in Sioux Falls in July 2009. He argued a violation of his 4th Amendment rights.

During the robbery, an employee at Deuces Casino activated a "holdup alarm", which automatically notified law enforcement that a robbery was in progress. The suspect fled on foot. Officer Trainor was already patrolling nearby. His experience (and some common sense) told him that the suspect likely had a car waiting nearby, and that the most likely escape route would be through quiet, residential streets.
Sure enough, within two minutes of the initial alarm, he spotted a lone vehicle a few blocks from the casino. He stopped the car, questioned the occupants, and determined the pair seemed suspicious. He called for back-up, searched the car, and found a bag of money and a pellet gun.

Johnson and his brother were arrested for their role in the robbery. On appeal, Johnson argued that the traffic stop was outside of the scope of what the 4th Amendment allows law enforcement to do.
This is the point of our story where some of my readers will roll their eyes and think, "Yeah, right, a guilty man is trying to get off on a technicality."

That's what it looks like, of course. But we need to keep in mind that we all benefit each time anyone asserts a 4th Amendment defense. And these rights are not a mere technicality. The 4th Amendment keeps us from living in a police state like Gadhafi's Libya or Mubarak's Egypt.

The 4th Amendment protects us from "unreasonable" stops and searches in our cars and homes. This protection also extends to privacy in our emails, our phone calls, and countless aspects of our private lives.

In our cars, for example, we know and expect that an officer can stop us for traffic violations, for expired tags, or if our vehicle matches a description of one used in a crime. But in most other cases, we're free to drive on public streets without the fear of police harassment.

Although this liberty is important to us, there aren't many ways to "enforce" it. In fact, it's rather difficult to come up with ways we can rein in police officers while at the same time paying them to keep us as safe as possible.

One of the ways we enforce the 4th Amendment is by tossing out criminal cases that are the "fruit" of unreasonable police conduct. This means that even if we are in the middle of committing a crime, our car can't be stopped unless the officer knows of a good reason to stop our particular car.

Here, Mr. Johnson argued that he was stopped merely for being in the wrong place at the wrong time. (There have been other cases where defendants were stopped simply for walking around in an area known for drug deals...which the courts have said clearly goes too far.)

Here, our court rejected Mr. Johnson's arguments. He was not stopped for being in the wrong place at the wrong time...he was stopped because he was on the most probable escape route immediately after a robbery, and at a time when there were no other cars on the street.

The court said this was not a stop based on "idle curiosity", but, instead, on specific facts which permitted the officer to make this brief intrusion into the privacy of the car's occupants.

It's important to remember, too, that the essence of the the 4th Amendment is not that "all" searches and stops are prohibited...only those which are unreasonable. This one was reasonable.
You can find the full opinion on the state Supreme Court website, at www.sdjudicial.com.

Have a question about the law? In this column, I explain recent court cases and answer your legal questions in plain English. Send an email to dan@zdclaw.com or a letter to "Less Legalese, Please," 5000 S. Broadband Lane, Suite 107, Sioux Falls, SD 57108. I will try to answer as many as I can with as little "legal-ese" as possible.
Daniel K. Brendtro is a trial attorney from Sioux Falls. His firm, Zimmer, Duncan & Cole, LLP, has represented clients statewide since 1948 on all types of cases, including injuries, accidents, criminal defense, and business lawsuits.