So reports ABC News:
Police in Aurora, Colo., searching for suspected bank robbers stopped every car at an intersection, handcuffed all the adults and searched the cars, one of which they believed was carrying the suspect.
Police said they had received what they called a “reliable” tip that the culprit in an armed robbery at a Wells Fargo bank committed earlier was stopped at the red light.
“We didn’t have a description, didn’t know race or gender or anything, so a split-second decision was made to stop all the cars at that intersection, and search for the armed robber,” Aurora police Officer Frank Fania told ABC News….
So — if the story is correct — the police stopped 19 cars, handcuffed all the adult drivers and passengers, asked them “for permission to search the car,” and then searched the cars once they all “granted permission.” Once nothing was found in each car, the drivers and passengers of the car were unhandcuffed, but apparently some were handcuffed for over an hour and a half, since that’s how long the search lasted. Eventually, when they searched the last car, they found the suspect and let everyone else leave.
I’m not a Fourth Amendment expert, but I’m pretty sure this is unconstitutional. Handcuffing someone generally requires probable cause to believe that they are guilty of a crime, or — in the context of a brief investigative stop — “particularized suspicion” to believe that the person is dangerous to the investigators. (See, e.g., Manzanares v. Higdon (10th Cir. 2009).) The mere fact that someone is present at the place where a criminal may be present can’t provide such probable cause. As the Court held in Ybarra v. Illinois (1979), rejecting the argument that a search warrant that authorized the search of a tavern, based on probable cause that evidence of crime would be found in the tavern, also authorized the search of tavern patrons,
A person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seizure another or to search the premises where the person may happen to be….
Each patron who walked into the Aurora Tap Tavern on March 1, 1976, was clothed with constitutional protection against an unreasonable search or an unreasonable seizure. That individualized protection was separate and distinct from the Fourth and Fourteenth Amendment protection possessed by the proprietor of the tavern or by “Greg.” Although the search warrant, issued upon probable cause, gave the officers authority to search the premises and to search “Greg,” it gave them no authority whatever to invade the constitutional protections possessed individually by the tavern’s customers.
Notwithstanding the absence of probable cause to search Ybarra, the State argues that the action of the police in searching him and seizing what was found in his pocket was nonetheless constitutionally permissible. We are asked to find that the first patdown search of Ybarra constituted a reasonable frisk for weapons under the doctrine of Terry v. Ohio, 392 U.S. 1. If this finding is made, it is then possible to conclude, the State argues, that the second search of Ybarra was constitutionally justified. The argument is that the patdown yielded probable cause to believe that Ybarra was carrying narcotics, and that this probable cause constitutionally supported the second search, no warrant being required in light of the exigencies of the situation coupled with the ease with which Ybarra could have disposed of the illegal substance.
We are unable to take even the first step required by this argument. The initial frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently dangerous, a belief which this Court has invariably held must form the predicate to a patdown of a person for weapons.
What is true for a search pursuant to a warrant is likewise true for warrantless seizures, such as the ones that occurred here. And even if the 5% chance that any particular driver was an armed and dangerous bank robber (1/19, even assuming that the tip was seen as having a 100% chance of being accurate) sufficed to provide enough “individualized suspicion” for a brief investigatory stop — perhaps, depending on the circumstances, including a patdown for weapons — I don’t think it would justify keeping all the innocent people handcuffed for an hour and a half.
It therefore sounds to me like the police might be facing 19 lawsuits (one in which the jury might not be that sympathetic to the plaintiff, and 18 in which they will likely be much more sympathetic), as well as one likely pretty solid suppression-of-evidence motion. I should hope that the police department and its elected superiors will also face some political blowback. Protecting the public from armed bank robbers is certainly very important; but handcuffing dozens of innocent people — in a situation where it was certain that the great bulk of the people were indeed innocent — for over an hour as part of this sort of blanket seizure strikes me as much too high a price to pay for this sort of law enforcement.
Thanks to Dan Schmutter for the pointer.
UPDATE: I added the “if the story is correct” after first posting it; I have no reason to doubt the story other than the general risk that the media will report things incorrectly, and I assume that our readers already take that general risk into account, when I’m blogging (of necessity) based on media accounts rather than original documents. But an extra reminder of this risk of media error never hurts, so I thought I’d add it.