Does Asserting Rights Equal Reasonable Suspicion?

Orin Kerr at VC has unearthed an old 7th Circuit case, Cady v. Sheahan, 467 F.3d 1057 (7th Cir. 2006), that offers a fascinating view of what constitutes cause for a Terry stop, frisk, search and seizure.  Rather than rewrite the whole magillah, I’m going to steal shamelessly borrow liberally from Orin’s write-up:


Here are the facts. Cady had filed a civil suit against a police officer, and he showed up at a Cook County courthouse in Bridgeview, Illinois sometime between 6:15 and 6:30 a.m on August 22, 2001, to serve process on the officer during an early morning shift-change. He was carrying a briefcase, and his clothes were dirty and wrinkled. He stood outside the courthouse by the sidewalk and waited for the shift change so he could serve process.

  An officer approached Cady to see what he was doing, but Cady apparently declined to answer the officer’s question. The officer alerted another officer, Lucio, and Lucio decided to investigate. Lucio approached Cady and asked what he was doing; Cady responded that he was “a federal process server.” Officer Lucio asked for Cady’s ID. Instead of giving the officer an ID, Cady engaged in a legal discussion with the officer of whether was any law requiring him to have identification with him. In fact, there wasn’t. The facts aren’t totally clear, but it seems that Cady had chosen not carry an ID that morning because he had researched the law and knew he was not required to do so.

  After a few minutes, Cady asked to speak with Lucio’s supervisor. Sargeant Barbat arrived on the scene and asked Cady why he was there and asked to see his ID. Cady stated that he would not reveal his identity “unless he was assured that it would not be used against him in a future criminal prosecution.” (This is the Fifth Amendment standard, in case you’re wondering.) He also asked Barbat whether “Barbat was making a Terry stop, and if so, what crime he suspected Cady was committing, was about to commit, or had committed,” tracking the language of the Illinois Terry stop statute. Cady bolstered his many legal questions and discussion points with supporting legal documents, including a law dictionary and a copy of the Federal Rules of Civil Procedure that he retrieved from a briefcase he was carrying.

  Now we get to the interesting part from a Fourth Amendment standpoint. One of the officers present took the briefcase from Cady and placed it on the hood of a squad car. Then two officers searched the contents of the briefcase. They found a Sullivan’s Law Directory, a Bible, an address book, and a pen. No weapons were found. The officers started looking through the books for a name so they could figure out who Cady was. Inside the Bible, they found a name. The officers then closed the briefcase and placed it in their squad car.

Cady was also personally frisked at this time, but no weapons were discovered. The officers then ran the name that appeared in Cady’s Bible through their squad car computer:



Finding that a name was not enough to identify Cady, the officers pressed Cady for more information. Officer Margalus stated that if Cady did not comply, he could be arrested for obstructing a police officer. Officer Jacoby took out his handcuffs and told Cady to put his hands behind his back[.]


  Faced with the threat of arrest for refusing to disclose more information, Cady told the officers his name and date of birth. The officers ran that through the computer and found there was no warrant out for his arrest. They then gave him back his briefcase and sent him on his way. The entire incident lasted “between twenty and thirty minutes.”


Aside from the obvious, that being that Cady need only have cooperated in the first place to avoid the mess, this scenario poses some great questions.  What aspect of asserting his right to be left alone implicates wrongdoing or a threat?  If a person has a constitutional right to be left alone when he is doing nothing illegal, is he wrong to assert it?  Is the easy answer, comply with police commands no matter what, the right answer?

The 7th Circuit held that the police were justified in their actions, as there was reasonable suspicion.

In the course of a Terry stop, an officer may conduct a protective search for weapons of an individual’s person, and area within his control, if “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” [Terry v. Ohio] The officers in this case were faced with an individual who was lurking outside a courthouse well before it opened to the public, was shabbily dressed, had not showered, carried a briefcase, and claimed to be serving federal process on a Sheriff’s officer. Cady was evasive in response to the officers’ questions, and repeatedly reached into his briefcase. Under the circumstances, a reasonably prudent officer would be concerned for the safety of the officers and civilians in the area, as well as for Cady himself.

The court further held that the length of the stop was Cady’s fault, since he could have just cooperated in the first place and made the cops’ lives easier, as well as his own.

This decision strikes me as one of those horrific throw-away rulings where the court recharacterizes the facts to suit the outcome, and basically tosses the guy to the wolves because he’s just too wacky to worth much, if any, thought.  And this is borne out by the fact that this isn’t Cady’s first time as a pro se plaintiff, making him a known quantity.  But aren’t odd-balls protected by the Constitution too?

Orin sees this decision as “incredibly lame,” essentially lacking in any principled constitutional basis.  While he’s absolutely right, I would take this a step farther.  This is what happens in cases that fly under the radar where the attitude toward the party is “who cares.”  No one was rooting for Cady.  There was no one to scrutinize the legitimacy of the decision.  So when the court thinks it can get away with a cheap one, and make an annoyance go away, this is the sort of result-oriented decision we get.

So even though no one is likely to argue that Cady’s the sharpest knife in the drawer, he did nothing more than assert his constitutional right to be left alone.  Did he get what he deserved?

One thought on “Does Asserting Rights Equal Reasonable Suspicion?

  1. david tarrell

    Scary ruling. I once appealed a Terry Stop case in which the issue was whether two black men standing outside talking at 4am who walk away when the officer asks them what they are doing give rise to reasonable suspicion. The lower court said yes because it was a “high crime area.”

    My client didn’t want me to appeal from this decision so I didn’t (he was in prison on another charge and the time for this was run concurrently) but the implications were scary.

    I was reminded of the poem that begins, “First they came for…” as the court seemed to be saying that because these two men were talking outside of a housing project, late at night, it was reasonable for the police to stop and frisk them.

    More evidence that we’re being “boiled slowly.” When will people realize that the rights of “those people over there” are their own rights?

Comments are closed.