Does Dressing Up as a Cop, Staging Fake Traffic Stops, Looking for Drugs, and then Keeping the Drugs Violate the Fourth Amendment?

Here’s one from the “now I’ve seen everything” department.

In United States v. Torres-Sobrado, — F.Supp.2d –, 2010 WL 3290958 (D. Puerto Rico 2010), handed down last week, twelve defendants allegedly dressed up as police officers and pulled over motorists for traffic violations. One of the twelve was an actual police officer, but apparently the rest were not. They would then look for drugs, and when they found drugs they would keep the drugs and later sell them. In one instance, they specifically targeted a man who they knew would be traveling with 14 grams of cocaine. One of the stops led to a carjacking, and the driver died: A range of criminal charges were filed. One of the charges accuses the defendants of violating the driver’s Fourth Amendment rights by stopping him under color of law and then seizing his cocaine.

In last week’s decision, the defendants moved to dismiss this count of the indictment as a matter of law. They made two arguments. First, the defendants argued that they are not real police officers, and therefore are not state actors under Fourth Amendment law. Second, they argued that even if they were state actors, they did not violate the Fourth Amendment because their stop and seizure complied with Fourth Amendment standards. The stop was based on probable cause, the drugs were in plain view, etc.

Judge Besosa started with the second argument, and I think it’s fair to say that he found it unpersuasive:

The argument[] . . . is, quite simply, nonsense. Even if the property taken from the victim is property that is not constitutionally protected, and even if the movants were accompanied during the traffic stop by a “real” member of the Puerto Rico Police Department acting on a tip from a reliable source, the defendants’ stop, detention, and search of Andrades were illegal according to the allegations in Count Six. Defendants are charged with staging a false traffic stop, motivated not by any attempt on the part of real law enforcement officers to enforce real laws, but motivated by a goal to procure drugs for resale and profit. For the defendants to argue that they had probable cause for the actions they are charged with, despite the fact that they are charged with staging that stop, despite the fact that neither is a real law enforcement official, despite the fact that they allegedly dressed up as law enforcement officials, is stunningly irrational and baseless. The Court rejects these arguments outright.

(emphasis in original).

Judge Besosa then rejected the first argument, that the defendants were not acting as state actors for Fourth Amendment purposes:

As to the defendants argument that they did not act under color of state law because they are private citizens and because there was only one state actor involved in the indictment alleged, the case law is clear. The Supreme Court has held that to act under color of state law “does not require that the defendant be an officer of the State,” and that “[p]rivate persons, jointly engaged with state officials in the challenged action, are acting [sic] ‘under color’ of law for purposes of § 1983 actions.” Dennis v. Sparks, 449 U.S. 24, 28, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). Courts have also ruled that “[t]he color of law element may be satisfied by the fact that an official gains access to the victim in the course of official duty” as is the case here. U.S. v. Giordano, 442 F.3d 30, 43 (2nd Cir.2006); See U.S. v. Walsh, 194 F.3d 37, 51 (“The relevant question … is not whether the actual abuse was part of the official’s duties but, rather, whether the abuse was ‘made possible only because the wrongdoer is clothed with the authority of state law.’ ” (quoting U.S. v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). In United States v. McClean, 528 F.2d 1250 (2d Cir.1976), the Second Circuit Court of Appeals held that police officers acted under color of law when they stole proceeds of drug sales from the suspects in their investigations in violation of section 242.

The United States accused the defendants of aiding and abetting others to violate Andrades’s right to be free from unreasonable searches and seizures by submitting him to a staged traffic stop in which, literally, they wore the colors of the state. As the Supreme Court once stated, “[i]t is clear that under ‘color’ of law means under ‘pretense’ of law” and, thus, “[a]cts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it.” There is no doubt that Count Six notifies the defendants adequately of the allegations against them pursuant to section 242 and states adequately the elements of that charge.

This is a very strange case, but I’m not entirely sure Judge Besosa is right. I’d want to know more facts to be able to know whether the defendants were state actors for Fourth Amendment purposes. The First Circuit uses a three factor test to determine if a private party acts as a government agent. Courts look at “the extent of the government’s role in instigating or participating in the search, its intent and the degree of control it exercises over the search and the private party, and the extent to which the private party aims primarily to help the government or to serve its own interests.” United States v. Pervaz, 118 F.3d 1, 6 (1st Cir.1997). I’d need to know more facts to know how these factors should apply, but it’s hardly obvious that they render the entire group state actors.

It’s true that the Second Circuit held that real cops who did something similar were state actors in McLean, but in that case the defendants were real cops who were on-duty. Here 11 of the 12 defendants are just criminals dressed up as cops; while wearing the uniform creates the impression of a state actor, I’m not aware of any cases indicating that appearance trumps reality in determining who is a Fourth Amendment state actor. I’m not sure of the right answer here, but I don’t think the answer is as simple as Judge Besosa suggests.

Similarly, if we accept that the defendants are state actors, I’m not sure why their alleged compliance with Fourth Amendment rules shouldn’t be a defense. Judge Besosa calls this argument “stunningly irrational,” but that’s because he assumes that the key issue is the defendants’ intent: “Defendants are charged with staging a false traffic stop, motivated not by any attempt on the part of real law enforcement officers to enforce real laws, but motivated by a goal to procure drugs for resale and profit.” But under Whren v. United States, subjective intent in making a stop and seizure is irrelevant. Maybe there is some outer limit to that principle that makes a “fake” traffic stop different, but it’s not obvious to me. So if the defendants really are state actors, then it’s not clear that their argument is so “stunningly irrational.” I should add that this hinges on whether the steps actually did follow the Fourth Amendment, which is quite unclear from the short opinion: That should be an issue for trial, not pre-indictment dismissal.

Thanks to for the link.