Thursday, August 23, 2007
Suspected Noise Violation Did Not Justify Stop—Court
By IMRANA MANZANARES, Staff Writer
Officers may not detain and search a suspect solely to investigate whether the person has committed a minor offense such as a noise violation, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Reversing Justin Grigg’s conviction for possession of an unregistered machine gun, a unanimous panel found that the district judge should have considered the nature of the alleged misdemeanor—playing a car stereo too loudly—as well as the possible threat to public safety, when balancing Grigg’s privacy interests against the efficacy of a Terry stop.
Whether Nampa, Idaho police had alternative means to identify Grigg, or achieve the investigative purpose of a stop should have also been examined, the appellate court held.
Terry v. Ohio, 392 U.S. 1 (1968), permits an officer to stop a person briefly, based on no more than reasonable suspicion that the person has committed a crime. In some circumstances, however, the courts have held that a person’s privacy rights may outweigh the public interest that supports an investigatory stop.
Evidence presented at the suppression hearing showed that a Nampa resident, Jeffrey Harmel, called the police after a car drove down his street playing the stereo very loudly. When Officers Oren McGuire and Mike Roeder responded, Harmel pointed out the offending car, which belonged to Grigg.
Harmel told the officers he had filed a previous complaint about Grigg, and McGuire later testified that Grigg had been given a prior verbal warning. While Harmel was filing a formal citizens’ complaint, Grigg got into his car and drove past the officers and Harmel.
McGuire, without ascertaining Grigg’s identity or investigating possible prior complaints, instructed Roeder to stop the car to inquire about excessive noise, determine the driver’s identity, and serve the driver with a citation and summons. McGuire then completed the complaint form, which Harmel signed, leaving personal information about the subject of the complaint blank.
Roeder stopped Griggs, and approached the car. At that point, Grigg volunteered that he had a “hunting rifle” inside the car that he was taking to get “fixed.”
Observing an SKS rifle, which is classified by federal law as a machine gun and thus cannot be possessed unless registered, on the passenger seat with ammunition and .380 caliber handgun shells, Roeder patted down Griggs and arrested him after finding concealed brass knuckles.
Denying Grigg’s motion to suppress, U.S. District Judge B. Lynn Winmill concluded the officers conducted an investigative stop under Terry, based on a citizen complaint, to gather information on the alleged noise violation.
A jury found Grigg guilty, but the appellate court overturned the conviction and remanded.
“Law enforcement officers may briefly stop a moving automobile to investigate a reasonable suspicion that its occupants are involved in criminal activity,” Judge Ronald M. Gould wrote for the panel.
Gould said the district judge misapplied United States v. Hensley, 469 U.S. 221 (1985), which upheld an investigatory stop based on the balancing test.
“The facts of Hensley...can be distinguished because that case concerned a completed felony of armed robbery, whereas Grigg’s excessively loud music arguably resulted at most in a misdemeanor violation of the local noise ordinance that does not endanger the public,” the judge wrote. “The absence of any danger to any person arising from the misdemeanor noise violation here does not support detaining the suspect as promptly as possible.”
The panel found that the Supreme Court’s reasoning in Hensley suggests that the gravity of the offense and interest against crime prevention is to be weighed against the interest in privacy and personal security.
Gould summarized by saying:
“We derive from Hensley that a court reviewing the reasonableness of an investigative stop must consider the nature of the offense, with particular attention to any inherent threat to public safety associated with the suspected past violation. A practical concern that increases the law enforcement interest under Hensley is that an investigating officer might eliminate any ongoing risk that an offending party might repeat the completed misdemeanor or that an officer might stem the potential for escalating violence arising from such conduct, both of which enhance public safety. Conversely, the absence of a public safety risk reasonably inferred from an innocuous past misdemeanor suggests the primacy of a suspect’s Fourth Amendment interest in personal security.”
Gould said the investigatory stop of Grigg was not reasonable, because playing one’s car stereo at a volume in suspected violation of a local noise ordinance does not give rise to a need for immediate police action. Only factors that indicate a threat to public safety justify the type of actions taken by the officers, he said.
Judges Richard A. Paez and Johnnie B. Rawlinson joined in the opinion.
The case is United States v. Grigg, 06-30368
Copyright 2007, Metropolitan News Company