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DC: Police emergency lights plus an already stopped car might not implicate the Fourth Amendment

Sep 21, 2009 DC: Police emergency lights plus an already stopped car might not implicate the Fourth Amendment

What if a person pulls legally to the side of the road to dial a phone number, intending on driving away immediately after doing the dialing? What happens if a police officer pulls up behind the car with emergency lights flashing, and testifies that this was done merely to show the driver and other cars that the officer is approaching, rather than to tell the driver not to move the car?

If the foregoing scenario happens in the District of Columbia, the driver may have a steep battle to have this qualify as a seizure. Jacobs v. U.S., ___ A.2d. ___ (D.C., Sept. 17, 2009). Hopefully the en banc court will fix Jacobs’s seriously flawed conclusion that no seizure occurred.

Jacobs proceeds to say the police had probable cause to search the car upon smelling unburnt marijuana. As I have urged in hte past, it is critical for judges to distinguish between the stinky smell of burnt marijuana and the often indistinguishable smell of fresh marijuana, particularly when it is not in huge quantities right under a cop’s nose.

Jacobs helps defendants in at least one way, by confirming that an “anonymous tip alone is insufficient to establish the minimal level of objective justification for a stop. Gomez v. United States, 597 A.2d 884 (D.C. 1991).”

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