Criminal Law - Fourth Amendment - Ninth Circuit Considers Community's Racial Tension with Police in Finding Illegal Seizure and Lack of Voluntary Consent. - United States V. Washington

Harvard Law Review, April 2008 | Go to article overview

Criminal Law - Fourth Amendment - Ninth Circuit Considers Community's Racial Tension with Police in Finding Illegal Seizure and Lack of Voluntary Consent. - United States V. Washington


The traditional story of Fourth Amendment search and seizure doctrine involves a complex compromise between public safety and the constitutional right to personal liberty. (1) Although the choice of viewpoint is often left out of the story, much also depends on whose perspective--police officers' or civilians'--a judge employs for search and seizure determinations. (2) The chosen perspective circumscribes the types of facts that a judge considers in these evaluations. (3) Recently, in United States v. Washington, (4) the Ninth Circuit held that the district court should have suppressed evidence obtained through a vehicle search because the consent was not voluntary, or, even if it were voluntary, because the evidence was the fruit of an illegal seizure. (5) In its search and seizure analyses, the panel considered the tension that earlier police shootings had caused between police and the local black community. By including racialized community-police tension in its reasoning, the Ninth Circuit took a subtle but significant step toward aligning its Fourth Amendment analysis with the underlying principles of search and seizure standards, while also furthering the privacy and dignity interests (6) the Amendment seeks to protect.

In 2003 and 2004, white Portland police officers shot and killed two unarmed black citizens during routine traffic stops. (7) In response, the Portland Police Bureau, along with black community organizations, developed pamphlets describing how civilians should interact with police and targeted distribution to black communities. (8) One of the pamphlets advised readers to "follow [a police] officer's directions" and to "comply with the procedures for a search." (9) Defendant Bennie Washington, a black member of the Portland community, (10) knew of one of these pamphlets and was aware of the shootings. (11) At approximately 11:30 p.m. on November 23, 2004, Washington was sitting in his lawfully parked car on a public street, waiting to give his friends a ride home. (12) Portland police officer Daryl Shaw, a white man, parked his squad car behind Washington's vehicle in order to "initiate investigatory contact," despite his lack of reasonable suspicion. (13) Officer Shaw approached Washington's car and asked him whether he could search Washington's person, to which Washington consented. At Officer Shaw's request, Washington exited the vehicle and moved to the squad car where he was searched. (14) Officer Troy Pahlke (who is also white) arrived at the scene while Washington was exiting his car and positioned himself such that Washington could not reenter the vehicle. (15) Officer Shaw completed the personal search and received Washington's consent to search the car. (16) Neither officer told Washington he could decline to consent to either the search of his car or of his person. (17) Officer Pahlke discovered a firearm in the car, and Officer Shaw arrested Washington for driving with a concealed weapon. (18)

After Washington was indicted for being a felon in possession of a firearm, (19) he filed a motion to suppress the gun, claiming that the officers had violated the Fourth Amendment. (20) District Court Judge Haggerty denied the motion, finding that the police officers had not seized Washington and that he had voluntarily consented to the car search. (21) Washington conditionally pled guilty to the charge, and the district court sentenced him to seventy months in prison. (22)

On appeal, a Ninth Circuit panel vacated and remanded. Writing for the panel, Judge Gould (23) began the review of the suppression ruling by determining whether there had been an impermissible seizure. (24) Using the standard articulated in United States v. Mendenhall (25) and Florida v. Bostick (26)--whether "a reasonable person would have believed that he was not free to leave" (27)--the panel held that, under the initial circumstances of the encounter, there was no seizure. (28) To determine whether the encounter later escalated into a seizure, Judge Gould applied the factors articulated in Orhorhaghe v. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Criminal Law - Fourth Amendment - Ninth Circuit Considers Community's Racial Tension with Police in Finding Illegal Seizure and Lack of Voluntary Consent. - United States V. Washington
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.