Chipping away at the Fourth Amendment?

“Today the majority empowers private citizens to select certain motorists for warrantless searches and seizures conducted by police officers lacking probable cause or any reasonable suspicion of criminal conduct.”

– Michigan Court of Appeals Judge Elizabeth L. Gleicher, dissenting in People v. Barbarich (majority opinion here).

Michigan State Police Officer Christopher Bommarito was patrolling the Downriver area in Wayne County on St. Patrick’s Day. He checked out Malarkey’s Bar on Dix Road, where a large party tent was set up in the parking lot. There were lots of folks but no apparent problems, so he pulled back out onto Dix Road.

A red pickup truck passed him going in the other direction. A woman was following the pickup. As she passed Bommarito, she made eye contact with him, pointed to the red pickup in front of her and mouthed the words “almost hit me.”

Bommarito made a u-turn, turned on his flashers and siren and followed the pickup, which turned into Malarkey’s parking lot. The woman continued to drive down Dix Road and was never heard from again.

The pickup driver was drunk, said Bommarito. At an evidentiary hearing, Bommarito admitted that he personally didn’t observe anything from defendant’s driving that would have aroused his suspicions, nor did he make any attempt to talk to the gesturing tipster before stopping defendant.

The prosecutor charged the driver with OWI. The district court let the case go forward. The circuit court saw a Fourth Amendment problem and dismissed the case, ruling that Bommarito’s stop was based on a hunch, rather than a reasonable articulable suspicion.

On appeal to the COA, Judge Kristen Frank Kelly, joined by Judge Brian K. Zahra (before he was appointed to the Michigan Supreme Court), reinstated the charge.

“Certainly more facts could have strengthened the officer’s suspicion,” Kelly admitted, “but in cases involving tips of erratic driving of a motor vehicle, fewer facts are necessary to justify the investigatory stop.” Kelly cited United States v. Wheat, 278 F. 3d 722 (8th Cir. 2001), and People v. Whalen, 390 Mich. 672 (1973) in support.

“‘[T]he Fourth Amendment does not require a policeman to simply shrug his shoulders and allow a crime to occur or a criminal escape,'” Kelly wrote, quoting Whalen.

Had the officer waited to personally observe defendant engage in dangerous and erratic driving, his suspicion would have surpassed a reasonable articulable suspicion and become a probable cause to seize defendant and issue an appropriate citation. “Thus, police would lose the intermediate step of investigatory stops based on reasonable suspicion.” Wheat, 278 F 3d at 733.

Here, sufficient indicia of reliability supported the citizen’s tip and Bommarito was justified in conducting the investigatory stop. The tip provided sufficient information to accurately identify the vehicle and to create an inference that a crime or civil infraction had occurred; and, the tip was also sufficiently reliable, based on the woman’s contemporaneous observations.

Under the totality of the circumstances, Bammarito had a reasonable articulable suspicion that justified an investigatory stop of defendant’s vehicle. The circuit court erred by concluding otherwise.

In her dissent, Gleicher responded:

In my view, the majority ignores the critical difference between stopping a vehicle on the basis of a tip suggesting a crime in progress, and a tip hinting at the commission of a civil traffic offense. Relying largely on Wheat, 278 F3d 722, the majority decries the danger attendant on waiting “to personally observe defendant engage in dangerous and erratic driving.” …

But here, unlike in Wheat, the evidence available to the arresting officer simply did not support that the tipster had witnessed the erratic, dangerous maneuvers of a drunk driver. …

In stark contrast [to Wheat], the tip at issue here gave no information concerning the circumstances of the near miss, and no objective data on which to ground a conclusion that Barbarich was drunk.

“If failure to follow a perfect vector down the highway or keeping one’s eye on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy.” [quoting United States v. Freeman, 209 F. 3d 464 (6th Cir. 2000)]

I would hold that an uncorroborated tip emanating from an unidentifiable source lacking any pertinent detail and suggesting only an ordinary traffic violation cannot serve as a vehicle for violating the Fourth Amendment, and thus dissent.

Leave a Reply

Please log in using one of these methods to post your comment: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s