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Tag: search and seizure

  • C.I. vs. Criminal Bribery: Ethics

    In answer to the comment section on the ethics of not helping law enforcement, my friend writes:

    1. We expect that a customer has the same right to privacy that he enjoys in his home. It’s that simple. Plus, heck from a transaction perspective… it is the same as renting an apt or an office.

    2. We actually do screen our customers more closely than any hotel (for example) in this city.

    3. We do ask customers to sign a form that, basically, states that they’re going to comply with any and all laws.

    4. If the authorities want access to any information about a customer at all… they need a warrant/subpoena. It’s that simple. No gray. I don’t care if it’s just your address or video footage of you in our building.

    5. Most often the ‘man’ wants us to provide access to a customer’s room… which we can’t do. We don’t have keys. They want this done without a warrant.

    6. Or, they want to provide a name and then want us to acknowledge if the person is renting and then provide the person’s contact information, visitation information, etc. We typically will acknowledge if someone’s a customer, in particular if the ‘man’ has something that links the person to us… but that’s it.

    7. Or, they want to bring a K9 unit to sniff outside the person’s unit so they can try to get a warrant that way. Again, my answer is no.

  • C.I. Payments vs. Criminal Bribery [continued]

    I’ve still very curious about all this and your comments make it all the more interesting.

    Here’s the law again:

    BRIBERY NOT INVOLVING PUBLIC SERVANTS

    S 180.00 Commercial bribing in the second degree.

    A person is guilty of commercial bribing in the second degree when he confers, or offers or agrees to confer, any benefit upon any employee, agent or fiduciary without the consent of the latter`s employer or principal, with intent to influence his conduct in relation to his employer`s or principal`s affairs.

    Commercial bribing in the second degree is a class A misdemeanor.

    S 180.03 Commercial bribing in the first degree.

    …and when the value of the benefit conferred or offered or agreed to be conferred exceeds one thousand dollars and causes economic harm to the employer or principal in an amount exceeding two hundred fifty dollars.

    Commercial bribing in the first degree is a class E felony.

    There’s a similar law for the person receiving such a bribe.

    Here are some comments I’ve gotten:

    I ran this by narco rangers and they said it’s pretty common practice. Same in the Intel division re: terrorists. Vetted by lawyers, those people we depend on for moral rectitude. … I’d be genuinely shocked if the people who make a living defending criminals haven’t already challenged this. It’s as old as the hills.

    I’m rarely shocked, at least not genuinely. (Did you hear that Michael Jackson died!? I mean, he looked so healthy.)

    And this:

    The DEA is not attempting in any way to alter or influence the firm’s business transactions, only learn about them in order to build a case against a criminal. … Compensating a low-level employee for providing the info seems like a sound move, providing it doesn’t circumvent 4th Amendment requirements, which is a different concern than bribery.

    Of course in the past police have also threatened these employees with arrest if they don’t “help” the investigation…. But let’s ignore that bullying behavior for now and just focus on the use of paying employees as C.I.s to turn over business information they have access to.

    There is not debate about “benefit” being offered and the lack of the employer’s consent. It all comes down to the last part of the law: “With intent to influence his conduct in relation to his employer`s or principal`s affairs.”

    Many businesses–from the phone company to apartment rental agencies to car rentals to self-storage to banks–depend on both implicit and explicit (legal) guarantees or trust and privacy. If a bank or any business was known for low-level employees telling me, after I paid $1,000, about what was going on in the business–information I could not find out simply by standing outside the place, information only an employee has access to–how could that not be “in relation” to the employer’s “affairs”?!

    Would it not be a bribe if you had stocks and somebody in the firm managing your stocks, against firm policy, sold your information to a third party? If the ownerof the firm wanted to give it, or even be paid for it, that might be his or her right. But it’s not a right of the employee. And in the case I’m actually talking about, the owner doesn’t want to give the information because turning over customer’s information would violate trust and hurt business.

    Besides, given past experience, he or she simply doesn’t trust the police to snoop around on their whim. That is what we have search warrants for.

    Or take this scenario:

    What if we asked the liquor store worker the contents of Stone Killa’s special orders, because we know when he gets the VSOP it means a party that Friday night where all the local Killas are invited? So we pay the worker and he calls us each week with the special orders, and pay him $50 a week for this. When we collar. The Killas at the party, the liquor store loses all Killa’s business for the next eight years…

    Personally, I think it’s clever but also straight-up commercial bribery. Why wouldn’t it be? Just because you caught the Killa doesn’t really matter with regards to the bribery.

    Let’s say you’re the patrol officer responding to a call for commercial bribery (as if). After going, “commercial what!?” you find the entire district down and your supervisor not be disturbed (screwing his mistress or something).

    You arrive at the Kim’s Liquor and Kim says his employee was paid money by a private citizen, let’s say me, Peter Moskos, to turn over a list of all the delivery orders or the names on credit cards of something. Let’s say I want this because I’m curious if my wife is spending all my money here. Or I run a rival liquor store and want the database. Or I’m doing academic research. Or I want Stone Killa’s address. Whatever my motives, I don’t think they matter one bit for the legal debate.

    The point is I am there, have the business information in my pocket, and confess to giving the employee $1,000 plus one penny for the information. The employee confesses, too. Mr. Kim presents a letter from an angry customer canceling a $251 order (thus meeting both monetary requirements for felony Commercial Bribing in the First Degree).

    Mr. Kim, unmoved by our remorse and tears, wants us both locked up. What do you as the responding officer do? Make two easy felony arrests. Case closed.

    And if it would be a crime for a private citizen, why would it not be a crime for law enforcement?

    [Of course if somebody said, “give me money so I can buy illegal drugs and then use them,” it would be considered a crime for most people–but not narcs in the C.I. business–to give money.]

    If you dig deeper I am confident you will see that this is law enforcement practice that has been approved of and indemnified by government counsel, and that there is probably even case law that makes this clear.

    Maybe. I am trying to dig deeper. I just can’t see how this wouldn’t be commercial bribery. It is against both the letter and the spirit of the law.

  • NYPD Stop and Frisks

    Al Baker reports in the Times:

    Any officer stopping a person in the street must tell the person “the reason, or reasons, why it occurred,” according to a letter from Police Commissioner Raymond W. Kelly. The policy took effect April 23, according to a departmental order to revise the police patrol guide.
    …
    Street stops jumped to 508,540 in 2006, from 97,296 in 2002, according to data from the police, and reached 531,159 last year, the most on record.

  • Arizona v. Gant

    The court just ruled that police can no longer search a car incident to arrest… assuming the car isn’t within reach of the arrested person and there is no reason to suspect that the car contains evidence related to the arrest.

    Since New York v. Belton(1981), police have assumed that they can search a car any time the driver is arrested. This relates to Chimel v. California (1969) saying a search incident to arrest is justified by officer safety or the interest in preserving evidence.

    In Arizona v. Gant (2009), a man was arrested for a suspended license and in custody in a police car. Police, because they could, searched his car (officer safety?) and found drugs. This is what has been overturned.

    The real-world implications of Grantwill be small. In my experience, most searches of cars happen not incident to arrest but technically to “inventory” belongings when the car is towed. Grant does not address that.

    But I’m always pleased whenever the courts extend fourth amendment freedoms of citizens. It doesn’t happen too often.

  • Steve Bierfeldt’s Box Full of Cash

    In town for a conference, a director of Ron Paul’s Campaign for Liberty is detained by TSA at the St. Louis airport because when asked to explain why he’s carrying $4,700 in cash (it was proceeds from book and ticket sales at the conference), he asks the agents to tell him what law requires him to do so. He managed to surreptitiously record his conversations with TSA officers on a cell phone. The audio is infuriating.

    That’s from Radley Balko’s The Agitator. Radley is a bit too anti-cop for my tastes, but he’s on the mark more often than not. And his Cato work on police raids is a classic.

    Now I don’t fault the cops for asking questions. I would do the same. But I would be a bit quicker to realize that cash isn’t a crime, see the Ron Paul campaign link, and understand the man isn’t going to answer questions and let him go.

    Finally, a smarter officer (different agency?) realizes it’s campaign money, sees the red flag, and tries to set the original officers straight:

    “Campaign Contributions…. You guys stopped him because the metal box.” He doesn’t phrase that as a question.

    “Well that and the large amount of money that was in there.” Ix-nay on the ash-cay, chief! Cash isn’t a crime, even if it mightgive you reasonable suspicion for a stop. But after that, you got nothing.

    The complete audio is here. I like how Bierfeldt doesn’t say he “knows his rights!” Instead he says he doesn’t know his rights.

    It all goes back to the war on drugs. And every time the government asks you to give up rights in the name of fighting terrorism, it will be used in the war on drugs. We don’t give “implied consent” to be searched at airports because we’re worried about people carrying cash. We give up our rights so we’re not blown up by a terrorist!

    It doesn’t take a agitating libertarian to worry about a government that stops a person walking through an airport with cash.

    Back in 2004, an astute former police officer wrote in the Washington Post:

    What starts as a necessary security measure will quickly become standard law enforcement procedure even for crimes that are nonviolent and not related to terror.
    …
    In order to stop and search any suspect, not just a terrorism suspect, law enforcement need only wait for a person to enter an implied consent area such as a subway or a shopping mall…. The true object of the search — most likely drug possession, but any contraband will do — is unrelated to terrorism.

    The difference between civilian employees searching for bombs in airports and government agents conducting random searches for suspicious objects is the difference between preserving a free society and creating a police state.
    …
    The solution — the balancing of public safety with constitutional liberties — is surprisingly simple…. Limit the doctrine of plain view…. If the government must search without probable cause, let it search, but only for illegal weapons or bombs…. Any unrelated suspicious or illegal objects found must be ignored.

    Read the whole article here.

  • Stop and Frisk

    Officially, the NYPD stopped and frisked 531,000 people last year. That’s a lot. They resulted in 31,665 arrests and 34,081 summonses.

    Because of the 4th Amendment, you need “probable cause” for a search or arrest. A search happens once you go inside pockets or look for anything accept weapons (drugs do come to mind).

    Because of a Terry v. Ohio, you need “reasonable suspicion” to stop and/or frisk a suspect. Afrisk is a pat down of the outer closing for weapons in the interest of officer safety. Sounds benign, but a frisk is aggressive, hands on, and personal. Ask anybody who has been frisked. It’s not fun. (I should mention it’s not fun to frisk, either. But similar to being hit by a car or hitting someone while driving a car, I’d prefer to be the “frisker” rather than the “friskee.”)

    Now half a million frisks a year is a lot. In NYC it’s part of a strategy to disarm criminals. There’s debate as to its effectiveness, but personally I think it’s likely that aggressive stop and frisks did and do play some role in reducing crime in NYC.

    But that’s easy for me to say. It’s not me they’re frisking. I’m white, professional, getting to middle age, and know how to talk to police. Though I have been stopped twice by the NYPD, both times while on my bike.

    I ask my undergrad students how many have been frisked. About half the hands go up. Most have darker skin (though there are white hands, too).

    Maybe the first time you’re frisked and innocent you say, “Fine. OK. I want a safer city, too.” But the fifth time your frisked on your way to work or school? I don’t know about you, but I’d be pissed off.

    So what level of frisking is acceptable? If there were 500,000 frisks and 500,000 illegal guns found, I don’t think anybody would have a real problem with frisks.

    If there were 500,000 frisks and no guns were found (though it could be argued that frisks still served some deterrent value), nobody would argue it was a good policy.

    So what “hit rate” justifies the frisks? 50%? 10%? 5%? I don’t have the answer.

    Also, consider these:

    1) Most police tell me that the vast majority of frisks in NYC are officially counted (that certainly was not the case for me in Baltimore). But still, there is certainly some undercount.

    2) If officers make an arrest, many don’t fill out the stop and frisk form. In other words, for some, the form is only filled out when nothing is found. So the hit rate may be somewhat higher that official stats indicate.

    3) To argue, based on the stats, that 88% of those frisked did nothing wrong is absurd. If there’s a corner of active drug dealers and you stop and frisk eight people. You find a gun! Well the stats, seven out of eight (88%) were innocent and doing nothing wrong. Bullshit. In this case, all eight of those frisks were justified. Even if no gone was found (this time)!

    4) On the other hand, if you’re frisking walking to work with a small bag of weed, that counts as a hit but I’d say isn’t justified. You frisk for weapons, not drugs. And in New York State you can’t use plain feel from a frisk to prosecute for drugs. but many NYPD don’t know this.

    5) Does a 21-year-old white rookie cop out of Long Island have any knowledge regarding the nuances in street behavior and dress that distinguish between hip street-look and criminal thug?

    6) Is it fair to disproportionately discover marijuana on urban minorities (found during a frisk) when the equivalent risk of discover for suburban whites is virtually zero?

    So let’s say frisks do lower crime. Let’s say they also pisses off a lot of the non-criminal public. Is it worth it?

  • From Vermont

    I just received this interesting email from the po-po in Vermont (oh, I chuckle at my own wit… because somehow I imagine police in Vermont don’t get called “po-po” much).

    Professor,

    Love reading your web site. I like your perspectives on these issues you write about. I was just reading your articles on “Balancing Security and Liberty” and “Buckle-Up or the Lock-Up.” After reading these two, you need to move to VT as you might like our supreme court. We, the police are losing a lot in terms of search and seizure.

    A while ago we lost searching a vehicle without a warrant. Our supreme court said if we have established PC [probably cause] at the roadside, we can offer the operator a “consent search.” If they decline, then we can seize the vehicle and get a warrant. The court at that time felt the vehicle can be easily seized and we take the time to get a warrant. We’ve gotten used to this one.

    Most recently we lost or are losing search incident to arrest [that’s the right search somebody after you lock them up]. I and my colleges in VT feel they’re going to far. An officer arrested a suspect for DUI, searched his vehicle incident to arrest. Only the lung-able wingspan and under the operators seat. Under the seat the officer I believe found stolen property or may drugs. He was charged and convicted for it. The suspect appealed his case all the way to the high court. They ruled 3-2 in his favor that the search, under the VT constitution, was unreasonable.

    The most recent was another search incident to arrest. The person was arrested on a warrant. He was handcuffed and searched. The police found a small bag or sack in his pocket that had drugs in it. He was charged and convicted. He appealed. The court, on a 3-2 decision ruled that we needed a warrant to get into the bag or sack. These two decision, in my opinion are extreme. We’re way beyond a Terry Stop or a security type search. Even one of the descending justices said just on an officer safety issue, it is justified.

    On this one, “Old-School Cops in a New-School World” my chief would agree with you here.

    I’ve always liked Vermont. Too bad I don’t ski. Good beer. Good weed, too, I hear (hey, seems like half the kitchen staff I worked with in Boston were hard-core stoners from Vermont).

    I’m always torn on these issues of searches. Because as a former cop, I love tools for cops to find shit. But generally I support rules limited police searches. I don’t think the government should have the right to be in everybody’s business. That’s not what the country was founded on.

    It really does bother me that people are arrested and cars towed simply because police want to search somebody and their stuff. If you’ve got probably cause, that’s one thing. But it you don’t, an arrest shouldn’t be the answer.

    Without knowing much at all about how police work in Vermont (I imagine it’s a little more polite—on both sides—than we police in parts of Baltimore).

    But I don’t support search incident to arrest if it means people are arrested so that police can search them. Officer’s need to search for their safety; it’s just so much abused to find drugs. I simply don’t know how you get police to follow the spirit of the law.

    In New York State, by the way, any drugs found during a Terry Frisk cannot be charged against the person (though of course the drugs will be seized). I think that’s a great rule. But of course my cop friends here in NYC tell me there are plenty or ways to get around that (like say you found them on the ground). Still, if police are willing to lie to prosecute, that’s on them.

    Here police stop and frisk for guns. That’s controversial, but legal and I suspect ultimately good. Stopping and frisking for drugs and both illegal and wrong.

    I’ve never understood the logic of being able to search the whole car when you tow it (granted I did, too). I mean, if it’s technically “for inventory,” but we all know that’s bullshit. Why can’t a driver just say no, you don’t have to inventory my contents, I trust you.

    I guess it all just comes down to the fact that I’m both pro-police but also pro 4th Amendment and against the war on drugs. I think citizens give up too many rights because of the war on drugs. Too many police push our Constitution to the limit because they want to find drugs. Why are they so obsessed? If we’re concerned about bombs, that’s one thing. Then find bombs but don’t go for anything else. I say this in my “Balancing Security and Liberty” piece–by the way, of all my op-eds, that’s my favorite.