In Oklahoma, the Criminal Court of Appeals decided a small almost insignificant appeal in State v. Roberson 2021 OK CR 16. The District Judge sustained the Defenses motion to suppress evidence based on an overreaching and unconstitutional search. The Appeals Court overturned this decision and remanded it back. The outcome for the Defendant was nominal, but it once again reinforces the degradation of the 4th amendment and our rights to protection against government agencies being able to reach into our lives based on their subjective intent, instead of hard-fast evidence.
The officer’s involved in this stop were part of the Gang Unit. They are not your run-of-the-mill patrol officers. They drive around in unmarked vehicles. These officers have more than once testified their mission is to patrol high crime, low income, neighborhoods stopping anyone they feel is suspicious in order to get guns and drugs off the streets.
Don’t get me wrong, getting guns and drugs off the streets is a noble cause, and I generally support the idea, but not at the cost of the 4th Amendment. See, here is the problem, with the support of cases like Illinois v. Wardlow, 528U.S. 119; United States v Morales, 961 F.3d 1086, 1092 (10th Cir.2020); and Bass, 2013 OK CR 7, the Courts have told us that being in a high crime neighborhood, having a criminal history, and acting nervous all contribute to the officer’s ability to determine reasonable suspicion. This allows an officer to turn a traffic stop into something much more. Justice Scalia once said the cornerstone of determining a law unconstitutional is when the statute allows the enforcement agency to determine and interpret the terms by which an action becomes illegal. What specific criteria is used to determine a neighborhood to be “high-crime”? What is considered a criminal history? Arrests, warrants, or just traffic tickets? How is nervousness determined and how has it been scientifically measured?
The reality, these are all subjective and the officers have not been given or directed by statute on how to measure any of these observations. In fact, police reports and testimony have become almost copy-and-paste from one case to another. They know the magic words to get reasonable suspicion. Now take this one more step. With the aid of Robinson v. State, 152 A.3d 661 (2017), and People v. Zuniga, 372 P.3d 1052; the State of Oklahoma has now given officers another magic trick to get probable cause for a search. All they have to say is, “I smell marijuana.” Even in a time when possession of marijuana has become nothing more than a traffic ticket, and a Medical Marijuana Card makes it legal to purchase and possess specific quantities; just the claim of the odor of marijuana will get the officer a free pass to search your vehicle
Now back to the original case. The officer, after sitting in the vehicle, claimed to smell marijuana. A search ensued and other contraband was found, which then provided the foundation for an affidavit for a search warrant of this person’s home. Another win for the good guys? Maybe, but at what cost? The officers never found any marijuana in the car? Does this become the equivalent of telling police they can act on their subjective intent with no recourse? The saddest part of this story? The implementation of this magic trick will only play out in the poorest neighborhoods. You won’t see this form of “Minority Report” policing in high-end neighborhoods, but if history is any indicator, it will eventually start to be seen as a method for political reprisal and personal bullying. By then it is too late, the freedoms will be gone and walking it back will be all but impossible.
Author: Brian J. Boeheim
Brought to you by Boeheim Freeman Law