Seventh Circuit Dissent Cites Volume 125 Essay
United States v. Johnson, 874 F.3d 571 (7th Cir. 2017), asked whether police had reasonable suspicion to stop a car parked within fifteen feet of a crosswalk in Milwaukee. While patrolling a “tough neighborhood” on a freezing January night, police observed defendant’s car parked close to the crosswalk. Id. at 576. A Wisconsin statute makes it illegal to park within fifteen feet of a crosswalk unless the driver is engaged in actively “loading or unloading or in receiving or discharging passengers.” Id. at 572. After pulling up in front of and beside the car, and bathing the vehicle with light, police discovered defendant Johnson attempting to hide a firearm.
Arguing that there was no probable cause for his temporary seizure, defendant moved to suppress the gun, and the District Court denied the motion. Johnson entered a conditional guilty plea to being a felon in possession and received 46 months’ imprisonment. The Seventh Circuit affirmed the decision when it heard the case for the first time last year, 873 F.3d 408 (2016), and again in the instant case after a rehearing en banc.
The government argued, and Judge Easterbrook affirmed, that a parking violation was virtually indistinguishable from a moving traffic violation. The majority read Whren v. United States, 517 U.S. 806 (1996), as holding that “probable cause justifies stops and arrests, even for fine-only offenses,” irrespective of whether the vehicle was moving or parked. 874 F.3d at 573. Defendant argued that the stop and subsequent seizure of the car’s occupants were a far cry from the original situation in Terry v. Ohio, 392 U.S. 1 (1968), which involved “an imminent armed robbery.” 874 F.3d at 576.
Judge Hamilton, joined by Judges Rovner and Willliams, dissented. The dissent believed that Terry and Whren should not be extended to suspected parking violations. Even as applied to moving traffic violations, the dissent argued, a police officer’s power to conduct pretextual traffic stops has gone too far in recent years. Judge Hamilton cited Sarah A. Seo, The New Public, 125 Yale L.J. 1616, 1669 (2016), for the proposition that this power has become “the twentieth-century version of the general warrant.” Seo’s essay explores how automobiles have developed a hybrid public-private nature that complicates Fourth Amendment analysis. She argues that partitioning police regulatory and criminal-law enforcement powers would limit police discretion in traffic stops.