Reasonable suspicion, or parking while black?

United States v. Johnson, No. 15-1366 (7th Cir. May 17, 2016).

In Wisconsin, like most places, you can’t park within 15 feet of a stop sign unless you’re loading or unloading passengers. The Milwaukee police saw a car parked within 15 feet of a stop sign. Two police cruisers swooped in, both with all of their lights on. One car pulled up parallel to the parked car, and another pulled up behind. They opened the doors of the parked car and seized the passengers. They found a gun in the car, and one of the passengers—the defendant here—was charged and convicted of being a felon in possession. The question on appeal is whether the police violated the Fourth Amendment.

The majority says that the police had probable cause to believe that the car was violating Wisconsin’s law against parking within 15 feet of the stop sign. This justified the seizure. The police didn’t have to eliminate the possibility that the car was loading and unloading passengers, because probable cause doesn’t require law enforcement to eliminate lawful explanations for what they see.

Anyway, the majority adds, the police certainly met Terry’s less demanding standard of “reasonable suspicion” to stop the car. And once they stopped the car, they saw the defendant, through the now-illuminated car windows, trying to hide a gun. The gun was the fruit of a lawful stop, so it shouldn’t be suppressed.

Judge Hamilton sees things differently. To him, this seems like a purely pretextual stop for parking while black. And he sees no reason to extend Whren (which held that pretextual stops don’t violate the Fourth Amendment) to stops for pure parking violations. 

But Judge Hamilton’s stronger argument, at least under existing law, is that the police simply didn’t have reasonable suspicion. He notes what the majority doesn’t: that the car was parked in front of a liquor store, the driver was absent, and the motor was running. If the police thought this was suspicious, he argues, it’s only because of the neighborhood. And if that is enough by itself, then the police have a license for racial discrimination.