Calif. court: Gang clothing can be factor in police search

Friday, September 7, 2012

A Redding, Calif., police officer did not violate the First Amendment rights of a man he stopped to search in part because of his gang-related clothing. A state appeals court determined that the officer could factor in clothing typically associated with a white supremacist gang in deciding whether to detain a person.

On Dec. 20, 2009, Officer Michael Skeen pulled into a convenience store parking lot and noticed Christopher Easley scratching a lottery ticket. Skeen saw Easley throw the ticket toward a garbage can but miss. Easley was wearing a black bomber jacket with “white power” and swastika patches, red suspenders and black combat boots with red laces. Skeen knew this clothing showed that Easley was affiliated with a White supremacist gang, and that gang members wore black combat boots with red laces as a trophy to signify that they had beaten a victim to a bloody pulp.

After Easley’s lottery ticket landed on the ground, Skeen detained him for littering. Because Easley became agitated and because of his white-supremacist clothing, Skeen decided to search him for weapons. He found a knife blade and pepper spray in Easley’s jacket.

Skeen arrested Easley on a charge of violating a state law prohibiting the possession of a dirk or dagger. Easley filed a motion to suppress the evidence from the search, contending that the search violated his constitutional rights. Specifically, he claimed the search violated his Fourth Amendment right to be free from unreasonable searches. A trial judge denied his argument.

On appeal, Easley continued to pursue his Fourth Amendment argument, but also raised an interesting First Amendment issue. He argued that the sole basis for the search was his style of clothing, and that for police to use such a criterion violated his rights to free expression.

The California Court of Appeal, 3rd Appellate District, rejected Easley’s constitutional claims — including his First Amendment argument — in its Aug. 29 opinion in People v. Easley.  “Defendant has cited no authority, and independent research has not revealed any, suggesting that a suspect’s possible gang membership, and clothing declaring that membership, is not a valid consideration in the totality of the circumstances supporting a search,” the appeals court wrote.

The appeals court also wrote that Skeen stopped Easley not only for his clothing but also because of his littering and his reaction to seeing a police officer. The clothing was just a relevant factor in the decision to search, the court said, not the exclusive factor.

“The clothing indicated defendant was a member of a street gang and had personally committed serious, violent acts,” the appeals court wrote. “We conclude that there was no violation of defendant’s First Amendment rights because defendant’s clothing was an appropriate consideration in evaluating the totality of the circumstances supporting the search.”

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