Critics: Ruling allows police stops for 'parking while black'
A man long suspected in a notorious 2007 Milwaukee witness execution for hire is now in prison for an unrelated gun crime, but a federal appeals court has agreed to consider whether the case that put him there promotes police stops for "parking while black."
The important constitutional question of what is reasonable police response to a potential parking violation could wind up influenced by the particular defendant involved.
Police have long believed that Randy "Diesel" Johnson, 32, was responsible for the slaying of Maurice Pulley Jr. three days after he testified against someone who had shot him in a parking dispute, despite bribes and threats to stay away from court. Prosecutors have never charged Johnson with that homicide.
An attorney for Johnson in a previous state charge, Ann Bowe, said her client has always denied any role in Pulley’s death.
In the current federal case, Johnson made a conditional guilty plea to being a felon with a gun, then appealed the legality of the warrantless search that led to his arrest.
About 7:30 p.m. Jan. 8, 2014, two Milwaukee police squad cars suddenly boxed in a parked but running Toyota Highlander with its lights on in front of Atkinson Beer & Liquor near N. 11th St. Under the glare of headlights, spotlights and flashers, five officers quickly pulled the five passengers from the car and handcuffed them. The driver, Johnson's sister, was inside the store.
Officers said they had seen Johnson reach down, and he was arrested for possessing a gun found on the floor. He was charged in federal court, then sought to suppress the evidence, citing a lack of a reasonable grounds for police to seize the SUV and its occupants.
Police said they rolled up on the car because it was parked within 15 feet of a crosswalk.
The trial judge denied Johnson's motion to suppress, and he made a conditional guilty plea and appealed. The 7th U.S. Circuit Court of Appeals affirmed the trial judge in a 2-1 decision that featured a blistering dissent from Judge David Hamilton.
"The phenomenon of police seizures for 'driving while black' has long been recognized," he wrote. "In this case, we seem to be taking the further step of enabling police seizures for 'parking while black.'"
Hamilton called the decision a mistake that violates the Constitution.
Some of his colleagues apparently agree. Last month, the full 7th Circuit agreed to rehear Johnson's appeal.
Writing for the majority in the panel decision, Judge Frank Easterbrook found the trial court properly declined to suppress the evidence because a single officer would need no reason at all to stroll up and look inside the car, where he could have seen Johnson with a gun. Easterbrook said the Fourth Amendment requires searches and seizures be reasonable but not "that police resolve all possible defenses and exceptions before asking the first question."
If Johnson wanted to argue excessive force or racial bias, Easterbrook said, a suit for damages would be the proper remedy, not suppression of the evidence in the criminal case.
Hamilton disputes that a suspected parking violation should give police the same leeway to stop and search vehicles as pretextual traffic stops, such as for a broken tail light or air freshener hanging from the rearview mirror. "The Supreme Court has not gone so far," he said.
In his dissent, Hamilton discusses other parking-related police stop cases, then calls them "mistaken" and a "far cry from would-be robbers casing their target in Terry v. Ohio." That landmark 1968 case allowed police to stop and frisk someone based only on a reasonable suspicion that the subject committed or was about to commit a crime and may be armed.
Even if the doctrine was extended to people in parked cars, Hamilton wrote, the officers here couldn't reasonably have suspected a violation because the parking law allows "standing" vehicles during active loading and unloading, like a driver briefly entering a store on a sub-zero night.
Hamilton observed that such a stop would likely never happen on Milwaukee's east side. "What made this car different?" he asked before noting the record does not indicate. Nor does his dissent disclose any knowledge of Johnson's suspected link to the Pulley murder.
Because Johnson was a high-value target of Milwaukee police, there is a good chance that police were tracking Johnson or his companions via live their cellphones, with help of a portable cell tower imitator called a stingray. To obtain and use the powerful technology, police have to promise the FBI not to disclose its existence.
Milwaukee District Attorney John Chisholm wound up naming his new witness protection unit in memory of Pulley. The man who first shot Pulley in the parking dispute, and whom Pulley testified against, Calvin Glover, eventually was convicted and sentenced to 19 years.
Three people were charged in Pulley's murder. A man who said he drove three others, including Johnson, to the scene cooperated and sentenced to 545 days in jail.
One of the three, Justin Winston, 33, was acquitted at trial but convicted at the same trial of a different homicide and sentenced to life with no chance of parole. Police continue trying to make arrests of the two other men the driver said accompanied Winston.
Glover's brother, Larry V. Howard, 36, pleaded no contest to soliciting murder and was sentenced last year to 7 1/2 years in prison.
Police had arrested Johnson with a gun once before, in 2012, but later had to dismiss the case.
In arguing that he be held without bail after the 2014 gun possession charge, federal prosecutors pointed out that Johnson had been arrested on charges of first-degree intentional homicide three times between 2003 and 2008. Though he was never formally prosecuted in any of those cases, his probation for a 2003 conviction for reckless endangerment was revoked three times.