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Tag: search and seizure

  • The DOJ is Right (1): Too many illegal stop and searchs (though sometimes just without written articulation)

    Update: The links have changed (oops!) since these were first published. Here are links to all my August 2016 posts on the DOJ report on the BPD.
    1 https://copinthehood.com/initial-thoughts-on-doj-report-on-2/
    2 https://copinthehood.com/the-doj-is-wrong-1-2/
    3 https://copinthehood.com/the-dojs-war-on-broken-window-2/
    4 https://copinthehood.com/cant-you-take-joke-2/
    5 https://copinthehood.com/the-doj-is-wrong-2-n-word-2/
    6 https://copinthehood.com/the-doj-is-wrong-3-that-damn-kid-on-2/
    7 https://copinthehood.com/the-doj-is-wrong-4-on-diggs-dig-2/
    8 https://copinthehood.com/the-doj-is-right-1-2/
    9 https://copinthehood.com/the-doj-is-right-2-actual-department-is-2/
    10 https://copinthehood.com/the-doj-is-right-3-actual-department-is-2/
    11 https://copinthehood.com/the-doj-is-right-4-actual-department-is-2/

    Too many officers in Baltimore conduct searches without being able to articulate probable cause. Too many people arrested for bullshit reasons illegally. This is wrong. It’s been happening forever. It needs to change. Maybe this DOJ report will bring about this change.

    That said, you can arrest someone for bullshit reasons legally. Bullshit means minor and perhaps to prove a point, but it’s not illegal. And sometimes people need to spend the night in jail whether because they’re threatened their mother, squatting on a stranger’s stoop, or ignore an officer’s lawful order to desist from criminal behavior (but behavior you don’t have probable cause to arrest them for). The charge can be loitering (Baltimore’s go-to), disorderly conduct (NYC’s go-to), disturbing the peace, trespassing, failure to obey, open container. Or any even more minor violation (littering, jaywalking, spitting, cursing, it doesn’t matter, as long as it’s on the books) combined with “failure to provide identification.” (It’s much harder to arrest somebody who does carry ID, because you can’t play the BS-ticket-you-don’t-have-ID game.)

    Such minor arrests do not and should not be prosecuted. The argument that arrests are bad because charges are dropped is absurd. As I wrote:

    Along with bureaucratic BS (prosecutors march to a much different drummer than cops), the standard for conviction is “beyond a reasonable doubt.” The standard for arrest is “probable cause” (which isn’t even “more likely true than false.” So of course good legal arrests will be dropped.

    On top of that, most low-level offenses are abated by arrest. You don’t actually prosecute people for loitering and trespassing on a stoop. A loitering arrest isn’t bad because it’s not prosecuted. It’s never prosecuted. And for such minor offenses, officer have pretty low motivation to write a good report, since it really just doesn’t matter.

    What I don’t get is so many illegal searches and arrests could be done legally, if the officer was clever and knew how to write. But where the report goes wrong is assuming that arrests and searches are evil because an officer didn’t articulate good cause in the arrest report. Much of the DOJ describes is just bad writing. That or officers not giving a damn about wasting time on a report for some BS arrest that is, in fact, abated by arrest. Cops’ inability to write is a major problem. But they some cops don’t learn good writing skills in high-school. There’s no language or writing test to become a police officer. Maybe there should be.

  • Use and Abuse of Terry

    There are some excerpts from Cop in the Hood that seem particularly relevant in light of the DOJ’s report on the Baltimore police. This is from pp.30-31.]

    The 1968 Supreme Court case Terry v. Ohio gives officers the right to frisk a suspect for weapons if they have reasonable suspicion that a suspect might be armed. A “Terry Frisk” is a limited pat-down of the outer clothing for weapons. This is distinct from and less than a “search” (for which probable cause is needed).

    While a limited pat-down of the outer clothing for weapons may seem benign, a frisk is very personal and intrusive. During any encounter, an officer can justify a frisk of a suspect by noting the drug trade in the area and the inherent link between drugs and violence. Legality depends on an officer’s perception of his or her own safety. And given the violence, officers in some neighborhoods have good reason to fear for their safety.

    The result of Terry v. Ohio is a huge legal loophole in which people in high-crime neighborhoods, usually young black men, are stopped and frisked far more often than people in other neighborhoods. Intended or not, constitutional rights depend on the neighborhood where you live. While race-blind in theory, the Terry Frisk (confusingly also known as a Terry Stop or Terry Search) gives police the legal right to stop and frisk most individuals in a violent, high-drug area.

    Technically a Terry Frisk may be used only to find weapons. But any contraband in plain view or “plain feel” is fair game, even if the found object was not the original goal. While reaching into someone’s pockets is technically and legally a search, one can easily feel drugs from outside a pocket while ostensibly frisking for weapons.

    In the police academy, trainees are instructed how to use the Terry Frisk to make drug lock ups. If drugs are found on a suspect during a frisk for weapons, officers should complete their search for weapons before addressing the issue of the suspected drugs. If a police officer were to stop a frisk for weapons upon finding drugs, it would be obvious–since drugs are not a direct threat to a police officer’s safety–that the intention of the search was not really officer safety. Once hands go in pockets, a legal frisk becomes an illegal search. The Terry Frisk explicitly does not give police the right to search or empty pockets. But on the street the line between a frisk and a search is not as clear-cut as the Supreme Court wants to believe. Necessary as the Terry Frisk is, in the war on drugs, officers on the street commonly exploit and abuse Terry v. Ohio.

  • The DOJ is wrong (4): On Diggs and Trespassing (dig?)

    Update: The links have changed (oops!) since these were first published. Here are links to all my August 2016 posts on the DOJ report on the BPD.
    1 https://copinthehood.com/initial-thoughts-on-doj-report-on-2/
    2 https://copinthehood.com/the-doj-is-wrong-1-2/
    3 https://copinthehood.com/the-dojs-war-on-broken-window-2/
    4 https://copinthehood.com/cant-you-take-joke-2/
    5 https://copinthehood.com/the-doj-is-wrong-2-n-word-2/
    6 https://copinthehood.com/the-doj-is-wrong-3-that-damn-kid-on-2/
    7 https://copinthehood.com/the-doj-is-wrong-4-on-diggs-dig-2/
    8 https://copinthehood.com/the-doj-is-right-1-2/
    9 https://copinthehood.com/the-doj-is-right-2-actual-department-is-2/
    10 https://copinthehood.com/the-doj-is-right-3-actual-department-is-2/
    11 https://copinthehood.com/the-doj-is-right-4-actual-department-is-2/

    [75 percent of this post was written by somebody else. As was 90 percent of the research. I double-checked, edited.]

    I think the goal of the DOJ report is not about constitutional policing in Baltimore. It’s about police not stopping people. Full stop. I mean, hell, even I have moral issues with “clearing corners” in a free society, but I’m telling you I never saw a corner I couldn’t clear legally and constitutionally. Unlike many of my more “progressive” academic colleagues, I see police as an essential part of our free society. And until we can think of a better way to disrupt violent crime, sometimes corners need to be cleared. Sometimes criminals hanging disrespecting neighbors and police need to spend the night in jail. And we can do that when they loiter under a posted “no trespassing” sign.

    Done strategically, it’s an essential part of preserving police authority. And I’m afraid that when police stop being proactive — like you see right now in Chicago and Baltimore — the dead bodies will continue to pile up. I do hope I’m wrong.

    The DOJ report cites a federal district court case (Diggs v. Housing Authority of City of Frederick Md. 1999) at the bottom of p.36. The DOJ says Diggs casts doubt on “the type of highly discretionary trespassing arrests that BPD utilizes.”

    This is totally BS.

    The BPD does nothing like that described in Diggs, which dealt with a very specific and complicated police enforcement scheme in public housing to hand out warning citations to people, maintain a “trespass log,” and only allowed pre-invited listed guests on the grounds of public housing.

    Diggs was even explicit that the trespassing they were talking was not the same as trespassing under a posted “no trespassing” sign:

    Maryland law, for example, permits a duly authorized agent of the housing authority to enforce the trespassing law by posting reasonably conspicuous signs.

    Did they not understand what they read? Or maybe they don’t care. An ideological objection to low-level proactive discretionary policing could be more important than the quality-of-life and lives of Batlimoreans. Consider that.

    Quibbling over a footnote may be kind of irrelevant when Baltimore cops do conduct a lot of unlawful Terry stops. But I’ll note that cops who actually bother to document their stops (and therefore can be audited by the DOJ) are almost certainly not the ones we need to worry about most.

    [If you don’t know Terry is, see thisand thisfor starters.]

    The pages on bullshit loitering and trespassing arrests (pp.36-38) pissed me off. Again, I’m not too mad, because let’s face it — lots of Baltimore cops arrest people for loitering when they aren’t actually impeding the free flow of pedestrian traffic, and they arrest people for trespassing when they haven’t warned them to move along.

    BUT, the trespass warning requirement has a YUGE exception, which is when there’s a fucking sign on the property that says “NO TRESPASSING.” That’s your warning! If you don’t belong there, you can go to jail. So why all the hate on the Lieutenant’s trespassing arrest template (p.38)? He’s trying to show his cops what a legit trespassing arrest looks like. Isn’t that what good supervisors are supposed to do? And if you’ve got black cops policing a black neighborhood, you know as hard as might be for some whites to understand, whites are pretty irrelevant to a lot day-to-day to policing in a minority white city and police department.

    The DOJ also ignored Jones v. State (MD App 2010) which clearly states that a sign can serve as a trespass notification:

    As noted above, notification of a person not to enter or cross private property is … not present in the trespass on posted property statute.

    But Jones goes so much further. It actually gets kind of crazy:

    In addition, the fact that appellant may well have had permission to enter … does not negate [an officers] probable cause to arrest appellant for trespass on posted property. … Consequently, although a police officer may ask a suspect about any right or permission to be on the subject property, there is no requirement to do so in order to establish probable cause for arrest for trespass on posted property.

    [Just FYI, I’ve omitted the parts about “wanton trespass” to focus on “trespass on posted property statute.” Also keep in mind, this is Maryland Law. Your laws may be different! Ask your doctor if these laws are right for you.]

    Think of how powerful and potentially unfair that last sentence is. You could be sitting on your friend’s stoop. But if he’s in the bathroom when I show up, legally and constitutionally I don’t even have to give you the common courtesy of waiting for him to come back before locking you up. (This is why we need cops who understand the law and also exercise discretion and common sense.)

    So it sounds like the DOJ is trying to outflank the courts here by asserting that all trespass and loitering laws are unconstitutional. And they have little problem just making things up to achieve their goal. Who wrote this report? What is the methodology? It’s all so opaque. And because nobody will challenge a “voluntary” consent decree,” the DOJ can say pretty say whatever they want. And leaving Baltimore aside for a moment, shouldn’t we be a bit more concerned about lack of integrity and transparency in the US Department of Justice?

    Here’s the thing, I do have problems with illegal stops and searches and arrests and Baltimore. It’s wrong. I wish it would stop. I’ve written about it. And if that were the point of this report, I’d be all for it.

    This report is something deeper and slightly nefarious. It questions the very right of police to stop, frisk, and search people at all. Even when it’s legal and constitutional.

    The difference between an unconstitutional extension of a Terry Frisk and a legal search can really be as simply as me going, “Can I search you?” And yet why some officers won’t utter these four fucking syllables before sticking their hands in somebody’s pocket I have no fucking clue. Not once was I refused a consent search. Not once. (And had somebody said no, I suspect I still could have searched incident to arrest.)

    So illegal searches do piss me off. Not so much for the semantic omission of four syllables, but because 90 percent of illegal stops and searches (at least in the Eastern where I policed) could be done legally and constitutionally if only cops weren’t lazy or dumb. There’s no excuse for police not to play by the rules because, despite what cops might even believe, the game is rigged in favor smart police. Or at least it used to be.

  • How do you define “reasonable suspicion” and “probable cause”?

    It’s not easy. Trust me. And I was cop, have a PhD, and teach criminal justice. United States v. Humphries, (4th Cir. 2004):

    The Supreme Court has repeatedly admonished that the standard for probable cause is not “finely tuned” or capable of “precise definition or quantification into percentages.”

    Well that’s not helpful. But yeah, it’s a bit unfair to overly fault cops for not meeting a definition you can’t define.

    But, uh, what is probable cause. I’m telling you there’s no answer. But a working definition I’ve used and cops will know (“reason to believe…”) is actually not that good because “reason to believe” implies more than 50/50 chance. It’s less than that! Dig this, from US v. Humphries (4th Cir. 2004):

    Similarly, we have stated (United States v. Jones, 1994) that the probable-cause standard does not require that the officer’s belief be more likely true than false.

    Well, damn. That was sort of news to me. (Which is why I’m posting this.)

    So less than 50 percent is clear. And “reasonable suspicion” is clearly (though only partially) defined as “less than probable cause.” So we’re talking a pretty low bar here. But I mention in terms of the low “hit rate” cited in the DOJ Report. What’s good enough? 10 percent? 25 percent? It depends. But if the hit rate gets anything close to this level, you can’t argue there’s prima fascia evidence of unconstitutional policing.

    And the argument that arrests are bad because charges are dropped? It’s absurd. Along with bureaucratic BS (prosecutors march to a much different drummer than cops), the standard for conviction is “beyond a reasonable doubt.” The standard for arrest is “probable cause” (which isn’t even “more likely true than false.” So of course good legal arrests will be dropped.

    On top of that, most low-level offenses are abated by arrest. You don’t actually prosecute people for loitering and trespassing on a stoop. A loitering arrest isn’t bad because it’s not prosecuted. It’s never prosecuted. And for such minor offenses, officer have pretty low motivation to write a good report, since it really just doesn’t matter.

    [In my intro classes, I just want students to know that “reasonable suspicion,” based on Terry, is the legal standard to justify a stop and/or frisk; probable cause, based on the 4th Amendment, is the legal standard needed for a search or arrest. And even this is a tough sell.]

    [Thanks to somebody else for all the research and some of the writing here]

  • Utah v. Strieff: The not so poisonous tree

    The branches of the poisonous tree got pruned a bit. The Supreme Court says that if a cop makes a kinda illegal stop — “mistaken” is the word the Court uses — and then arrests the person after a warrant check, and then finds drugs in a post-arrest search, the drugs are admissible in court.

    This might seem to go against the “fruit of the poisonous tree” doctrine. Because it does. It would have been so easy for the Court to say the stop wasn’t based on reasonable suspicion — even my intro students understand the “fruit of the poisoned tree” doctrine — and just leave it at that. This decision muddies a simple rule for cops: don’t stop people without reasonable suspicion.

    Before the decision, and after Scalia’s death, some on the Left gleefully predicted :

    The era of conservatives merrily hacking away at Fourth Amendment safeguards appears to be over. And Sotomayor’s aggressiveness on Monday suggests that, in the long run, she believes her side has the winning hand.

    Nope. Not yet. Sotomayor was on the losing side of 5-3 decision. Scalia would have made the vote 6-3.

    The facts are this:

    Based on an anonymous complaint, Officer Fackrell was surveilling a suspected drug house on-and-off for a few hours over a week. He sees different people going in and out quickly, signs of repeated drug transactions. Something is fishy, but he’s seen worse. He stops one guy who leaves the house a block away to “find out what was going on [in] the house” and “what [Strieff] was doing there.” This could have been good legit police work. Except Fackrell did not articulate “reasonable suspicion,” the required (albeit somewhat vague) legal standard needed for stop. Nor did Fackrell ask Streiff. He “stopped” Strieff; Streiff was not free to leave. And for that you need “reasonable suspicion.”

    Reasonable suspicion (Terry v. Ohio) is not a high standard — just more than a hunch — but for whatever reason the court assumed (without deciding, because the state conceded the point) that there was no reasonable suspicion.

    The court found the illegality of the stop borderline. A “mistake” but not any “flagrantly unlawful police misconduct.” Reasonable people can disagree, and I think the Court is wrong here. But I’m thrilled any time the Court acknowledges the gray in policing.

    Maybe there was reasonable suspicion. I strongly suspect I could have articulated reasonable suspicion for this stop. What do I mean? Reasonable suspicion isn’t something that just is or isn’t. It’s a concept police have to articulate in writing. And some cops write better than others.

    Maybe Strieff looked like a tweeker. (Because he was.) Describe why. What did he do that was suspicious. Frackrell didn’t note when Strieff went into the house. So maybe Streiff spend the night as an airbnb guest or something. I doubt it. And Frackrell doubted it. And Officer Frackrell was right, of course. But being right doesn’t make it legal. You have to articulate this and more to build reasonable suspicion. Or maybe there was another legal reason to stop Strieff. Maybe jaywalking. You can make a pretextual pedestrian stop. Apparently Frackrell didn’t. So even if it could have been a legal stop, turns out it wasn’t.

    The Court has been having second thoughts about the “fruit of the poisonous tree” doctrine — evidence obtained illegal can’t be used — for a while now:

    The significant costs of this rule have led us to deem it “applicable only…where its deterrence benefits outweigh its substantial social costs.”

    [I don’t buy the “substantial social costs” argument. Guilty people get away with murder all the time. A few more junkies not pleading guilty to minor drug charges? I can live with that.]

    Here are the legal issues:

    There are four exceptions to the fruit of the poisonous tree doctrine: independent source, inevitable discovery, good faith for search warrants, and the attenuation doctrine. Of course the latter one, the hardest to understand, is the one that matters here.

    The attenuation doctrine. Honestly, I don’t have an opinion on the attenuation doctrine. How could I? I didn’t know it existed until a few hours ago.

    It means:

    Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that “the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.”

    I’d paraphrase that, if I could.

    The court accepts there was no attenuation in space or time (standards from the 1975 Brown v. Illinois). Point to Strieff. But — and I think this is a bit of a stretch — but pay attention because this is the key:

    The outstanding arrest warrantfor Strieff’s arrest is a critical intervening circumstance that is wholly independent of the illegal stop.

    They combine that with the fact that “Officer’s Frackrell’s illegal stop [wasn’t] flagrantly unlawful police misconduct.”

    This is not like if a cop had made an illegal search and then found drugs in that search. That would be no attenuation and thus unconstitutional. This was an almost legal stop, says the Court, and a warrant is a warrant and there’s nothing wrong about search incident to arrest. It may be the wrong conclusion, but it’s not crazy.

    Justice Sotomayor is getting the headlinesfor her passionate dissent. In her over-reaching writing, she seems to be picking up where Scalia left off. But what I fear is that Sotomayor’s passionate dissent — you might say a bit off the deep-end — will actually serve to expand the impact of the decision she doesn’t like. Sotomayor’s interpretation may become a self-fulling prophecy. If this case is remembered, it will probably be for her dissent:

    Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants — even if you are doing nothing wrong.

    That is certainly not what the decision says. That is certainly not what happened in the case in question. But Supreme Court cases are usually remembered in very brief summaries. The details of the case get lost to time. Terry v. Ohio? Reasonable suspicion, stops, & frisks for officers’ safety. Lost over time are the circumstances so well articulated by Detective McFadden.

    Sotomayor’s issues go far beyond this stop and this reasonable suspicion to the very heart of proactive investigatory policing. Yes, people stopped by police get checked for outstanding warrants. Is that bad? Sotomayor thinks so. She continues:

    We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.

    Whoa.

    What bothers me about Sotomayor’s dissent is her implication that people with arrest warrants shouldn’t be stopped and arrested by police because so many people are wanted on warrants. Warrants are issued to quickly for bullshit like unpaid fines. But take that up in a separate case. If a judge issues a warrant, the cop’s job is to get that person to the judge. End of story. Probable cause of a crime has already been established by a judge. You’re supposed to arrest people with warrants. That’s why we call them arrest warrants!

    The majority decision, written by Thomas, tries to keep thing narrow:

    Officer Fackrell’s purpose was not to conduct a suspicionless fishing expedition but was to gather information about activity inside a house whose occupants were legitimately suspected of dealing drugs…. This was not a suspicionless fishing expedition ‘in the hope that something would turn up.’

    Sotomayor will have none of this:

    The warrant check, in other words, was not an “intervening circumstance” separating the stop from the search for drugs. It was part and parcel of the officer’s illegal “expedition for evidence in the hope that something might turn up.”

    In this case Sotomayor is wrong. But in general, at least from my experience, she is right. Terry frisks may be needed to find weapons, but they’re used much of the time to find drugs.

    In Strieff, the Court says that drugs are admissible if found incident to arrest, after a warrant check, after a stop (that may have sort of been justified, but…) for which there was not reasonable suspicion. It might be the wrong decision, but it’s not as far reaching as Sotomayor would have you believe. It least I hope not.

    I don’t think the exclusionary rule should be chipped away. But this wasn’t a crazy stop. This wasn’t a malicious stop. This wasn’t an illegal arrest. This probably could have been a legal stop. But, as argued by the state, it wasn’t. That is was the Court should have ruled on. I’d have signed off with the other dissent, written by Kagan and Ginsburg.

    Nobody will remember Streiff as a stretch of the “attenuation doctrine.” Hopefully, Sotomayor’s dissent not withstanding, nobody will remember this case at all.

    [For a more legally knowledgeable (but still very readable) interpretation, see Orin Kerr’s poston Scotusblog.]

  • Terry v. Ohio

    For such a Landmark Case, I was curious how Terry v Ohio (1968) was reported at the time. I was thinking it would have been hard to see its potential implications at the time (though William Douglas did so in his dissent).

    Indeed, on June 11, 1968 the New York Times said:

    Held, 8 to 1, that the police may constitutionally stop and frisk suspicious persons, even if the officers do not have probable cause to make an arrest.

    That’s it.

    In July 1974, the Times gave Terry six paragraphs in a long obituary on Earl Warren:

    One notable exception to this [“‘anti police’ pattern”] came in 1968, when a political backlash was building up against the Court’s restrictions on the police, and even some liberals were beginning to wonder if the Court had not been too rigid in ruling out all evidence obtained in violation of the Supreme Court’s procedural rules.

    …

    He then declared, with obvious reluctance, that weapons sized by “frisking” could be used in evidence — a decision that civil libertarians lamented as a serious breach in the Fourth Amendment’s shield against unreasonable searches and seizures.

    One way to see the growing influence of Terry is to look at the increase in citations over time. Using ProQuest’s newspaper search, there were only 3 references to “Terry v Ohio” in the entire decade of the 1970s. This grew to 7 in the 1980s, 11 from 1990 to 1999, 36 in the 2000s, and 56 in the 6 years since 2010.

    It’s interesting to me, listening to the oral argument (for the first time as I didn’t know you could do that!) that a big part of the debate circles around the idea of whether Terry was “arrested” at the moment he was stopped and not free to leave. The answer now seems obvious, but this is where “stop” — the idea of “temporary detaining” — got put in “stop and frisk.”

    Brennen asks:

    It’s certainly not an arrest in the sense of taking him to the station house and booking him for a crime; but, if he’s detained, isn’t it in the nature of an arrest?

    Lawyer Payne:

    The first seizure of the person was at the time that he ordered them into the store.

    Brennan, Jr.:

    You mean when he took Terry and swung him around there was no seizure of the person?

    Payne:

    I think there was a temporary detaining, or interference with his person.

    Brennan, Jr.:

    Well, he had his hands on him and he switched him around.

    Surely — there was no seizure of the person?

    Black:

    What is the difference between seizure and arrest?

    You know, a seizure — you don’t seize a man — I mean, you may seize him because you seize something tangible, but that’s not what you are talking about in a seizure in the Fourth Amendment.

    I thought it was an arrest?

    Payne:

    …and some may term that as a seizure of the person himself; but I would not term that it as a seizure of the person himself unless he has the intention of taking that person into custody, even though he may lay hands on him at that particular time.

    Payne won the day.

    [As a refresher course, Terry was extended to allow drugs based on “plain feel” if “immediately obvious” in Minnesota v. Dickerson (1993). (People v. Diaz says this does not apply in New York State.)]

  • What about “fruit of the poisened tree”?

    From NPR:

    The U.S. Supreme Court on Monday ruled that police officers don’t
    necessarily violate a person’s constitutional rights when they stop a
    car based on a mistaken understanding of the law.

    The court said the officer made a “reasonable mistake.” Hence it’s not an unreasonable search and seizure.

    The case involved drugs found after a traffic light for one broken brake light in a state where one broken brake light isn’t a traffic violation.

    How can police claim ignorance of the law as a defense?

    Strange, I say. Eight of nine supreme court justices disagree with my take.

  • Terry v. Ohio. Happy 50th Anniverary, Detective McFadden!

    Fifty years ago today on the streets of downtown Cleveland, Detective Martin McFadden, plain-clothed and without a walkie-talkie (two-way radios didn’t become standard for another decade) stopped and arrested John Terry and two other guys after observing them casing a storefront for United Airlines.

    This arrest lead to the landmark 1968 Supreme Court Case of Terry v. Ohio (the two poor other guys unremembered). In an 8-1 vote, the Supreme Court made perhaps the most pro-police decision of the 20th century.

    I love the the original police report filed by Detective McFadden. Sure, the report is filled with typos and corrections (and “colored” was just the polite term back then), but it’s a great police report. Who would have imagined that not only would we remember it fifty years later, but that it would be taught in college courses?

    Detective McFadden wrote perhaps the best arrest report/statement of probable cause I’ve ever read. He doesn’t just say he was suspicious of these two guys. He explains, in great and explicit detail — ie: he articulates the totality of the circumstances — just what made him suspicious. He builds a scene of three men about to rob a business. McFadden paints a picture.

    Why, after reading this report, how could one not be suspicious of the actions of these three gentleman?

    Then, and without backup or a radio, Detective McFadden pushes these guys against a wall, pats them down, and finds two illegal guns. Finally, the good officer gets somebody in the store to call police.

    Talk about “real police”!

    But here’s the problem: Detective McFadden did not have “probable cause” to think these guys were armed. And how can you search somebody without probable cause? The Fourth Amendment is pretty clear about this matter. But it certain makes sense, as a police officer stopping these guys, to fear that they might be armed and to check and make sure they’re not, or disarm them if they are. But the case went to court, asking if the gun seizure was constitutional and legal even without probable cause or a warrant?

    The Court said yes.

    In doing so, the Supreme Court invented the concept of “reasonable suspicion” in which an officer may pat down the outer clothing of a suspect for weapons in order to ensure the officer’s safety. It’s hard — actually impossible — to imagine policing without Terry v. Ohio.

    The Court concluded, in affirming a lower court’s decision:

    Purely for his own protection, the court held, the officer had the right to pat down the outer clothing of these men, who he had reasonable cause to believe might be armed. The court distinguished between an investigatory ‘stop’ and an arrest, and between a ‘frisk’ of the outer clothing for weapons and a full-blown search for evidence of crime. The frisk, it held, was essential to the proper performance of the officer’s investigatory duties, for without it ‘the answer to the police officer may be a bullet, and a loaded pistol discovered during the frisk is admissible.’

    And yet it’s important to remember the words of the lone dissenting judge, Justice Douglas, in this eight-to-one affirmation:

    The opinion of the Court disclaims the existence of ‘probable cause.’ If loitering were in issue and that was the offense charged, there would be ‘probable cause’ shown. But the crime here is carrying concealed weapons; and there is no basis for concluding that the officer had ‘probable cause’ for believing that that crime was being committed. Had a warrant been sought, a magistrate would, therefore, have been unauthorized to issue one, for he can act only if there is a showing of ‘probable cause.’ We hold today that the police have greater authority to make a ‘seizure’ and conduct a ‘search’ than a judge has to authorize such action. We have said precisely the opposite over and over again.

    …

    To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment….

    There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.

    Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib [his style], if they can ‘seize’ and ‘search’ him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.

    Happy 50th Anniversary!

  • Warrant? We don’t need no stinkin’ warrant!

    The cops smell weed and bust down a door. The Supreme Court, in Kentucky v. King, say no big deal. It’s a dumb decision, but it’s not such a big deal. This decision simply reaffirms the status-quo.

    As best, the Court’s decision can be described as yet another nail in the coffin of the 4th Amendment. But thanks to the War on Drugs (starting with Alcohol Prohibition) it’s not like this is even the first or fifth nail.

    And the logic of court has been consistent. When it comes to policing and warrantless searches, here are the rules:

    1) Anything police come across is fair game. In other words, if police are there legally, they never have to close their eyes to something illegal (even if it’s not what they first came to look for).

    2) “Exigent circumstances” give police the right to skip the warrant requirement.

    3) Police are allowed to make honest mistakes if they’re acting in good faith.

    4) Police have the rights to look for weapons that could be used against them.

    5) The Court has no desire to read the minds and intentions of police officers (or concern themselves with how hard police knock). It just wants police behavior to be legal.

    Taken individually, it’s hard to see any of these rules as unreasonable. Taken collectively, it means arrests are almost never, as the Founding Fathers intended, conducted with a court-issued warrant. It’s strange to me, since the 4th Amendment–unlike, say, the 2nd Amendment–is pretty unambiguous.

    The Court says: “The text of the Fourth Amendment does not specify when a search warrant must be obtained.” Actually, in omission, it does: All the time. But the Court has long discarded that principle and declared the “unreasonable” word in the 4th Amendment means that “reasonableness” is the key. [Doesn’t this go against the 9th Amendment? But what do I know?]

    Kentucky v. King affirms what the rules of the street have long been: destruction of evidence is an exigent circumstance that gives police the right to bust down a door without a warrant. If the people in the apartment hadn’t made sounds like they were covering up evidence (which they were), police wouldn’t have had the right to break down the door.

    But here the court gets a little saucy: “Citizens who are startled by an unexpected knock on the door… may appreciate the opportunity to make an informed decision about whether to answer the door to the police.” Well ain’t that precious? “When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do.” Wow. Having knocked hard on a few doors myself, I find that hard to believe, especially when the Court follows it up with this: “Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.” Oh, snap!

    Here are the specifics:

    Police officers set up a controlled buy of crack cocaine outside an apartment complex. Undercover Officer … radioed uniformed officers … that the suspect was moving quickly toward the breezeway of an apartment building, and he urged them to “hurry up and get there” before the suspect entered an apartment.
    …
    Just as they entered the breezeway, [uniformed officers] heard a door shut and detected a very strong odor of burnt marijuana. At the end of the breezeway, the officers saw two apartments, one on the left and one on the right, and they did not know which apartment the suspect had entered. Gibbons had radioed that the suspect was running into the apartment on the right, but the officers did not hear this statement because they had already left their vehicles. Because they smelled marijuana smoke emanating from the apartment on the left, they approached the door of that apartment.
    …
    One of the uniformed officers … banged on the left apartment door “as loud as [they] could” and announced, … “Police, police, police.” … “[A]s soon as [the officers] started banging on the door,” they “could hear people inside moving,” and “[i]t sounded as [though] things were being moved inside the apartment.” These noises, Cobb testified, led the officers to believe that drug related evidence was about to be destroyed.
    …
    Cobb then kicked in the door, the officers entered the apartment, and they found three people in the front room: respondent Hollis King, respondent’s girlfriend, and a guest who was smoking marijuana. The officers performed a protective sweep [and] saw marijuana and powder cocaine in plain view. In a subsequent search, they also discovered crack cocaine, cash, and drug paraphernalia.

    Police eventually entered the apartment on the right. Inside, they found the suspected drug dealer who was the initial target of their investigation.

    Now it’s one thing to think, as I do, that the War on Drugs is futile and a very unproductive use of police resources, but in this case it all comes down to whether or not the officers “created their own exigency” by ordering the occupants to open the door. The Court somehow bases its decision on the hard to believe idea that the officers never said, “Open the door.” Now I wasn’t there, but I’d bet, “POLICE POLICE POLICE,” was quickly followed by “OPEN THE F*CKING DOOR OR WE’LL BUST IT DOWN!” The court, eight out of nine majestic justices, respectfully disagrees.

  • Here’s the to 4th Amendment

    “One of the reasons we fought a bloody war against Britain was we didn’t like these soldiers stopping people on the street willy-nilly….We went to armed revolution against the strongest nation in the world in order to have these protections against unreasonable searches and seizures. They’re not technicalities. They’re real.
    …
    Indeed, the ability to seize a person’s private property is among the most awesome powers a government can wield. The authors of the Constitution cemented that notion in the Bill of Rights, decreeing in the Fourth Amendment that our right against unreasonable search and seizure “shall not be violated.”

    This afternoon, a joint legislative panel will convene at the Capitol to review a pair of reports that say some officers of the now-defunct Metro Gang Strike Force committed behavior that was “shocking” and listed a litany of abuses.
    …
    One issue legislators must wrestle with is fundamental: Was the gang task force a good idea badly executed by dishonest cops and supervisors who looked the other way, or was the whole concept — including the state’s administrative forfeiture law — fatally flawed?
    …
    By the time lawmakers re-created the elite unit as the Metro Gang Strike Force in 2005, it had become largely self-funding, through seizures and forfeitures. The more money and property the cops from the unit’s member agencies seized, the more fiscally sound the unit was.

    Not only did it put the profit motive in police work, the cops came to look at seizures as the key to the unit’s survival, the Luger report said.

    It is definitely worth reading David Hanners’ entire article in the Pioneer Press. It’s a good piece of journalism