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United States v. Washington:
Here's an interesting Fourth Amendment case from the Ninth Circuit written by Judge Gould and joined by Judges Paez and Rawlinson, via Decision of the Day.

  Facts: A white Portland police officer approaches an African-American male (the defendant) sitting in his car one night and asks what he's doing. The officer asks the defendant if he has anything on his person that he shouldn't have; when the defendant says no, the officer asks if the defendant would consent to a search so the officer could check. The defendant agrees, and the officer asks the defendant to step out of the car and directs him away from the car so he can conduct the search away from the car.

  A second white officer arrives, and the first officer searches the defendant and finds nothing. The officer then asks the defendant about whether there is anything in his car that he shouldn't have; the defendant says no, the officer asks if he can check and, the defendant agrees. The officer searches the car, blocking the defendant's access to the car during the search, and uncovers an illegal firearm. The defendant is charged with being a felon in possession of a firearm.

  District court proceedings: The defendant moves to suppress the gun on the ground that it was discovered in violation of the Fourth Amendment. The district court holds a suppression hearing and rules that the search was lawful: the court finds that the defendant was not seized during the interaction and the consent to search the defendant's person and car was voluntary. However, there is testimony at the hearing about two then-recent incidents in which white Portland cops shot African-American suspects during traffic stops. The Portland police had widely published pamphlets in response to the incidents about how to react during traffic stops; th pamphlets instructed citizens to "follow the officer's directions" when stopped, and "if ordered, [to] comply with the procedures for a search."

  Held by the Ninth Circuit on appeal: The gun must be suppressed because the district court's factual findings about custody and consent are both clearly erroneous. First, based on a totality of the circumstances, the officer's interaction with the police was sufficiently intimidating that a reasonable person wouldn't have felt free to leave ans was therefore "seized":
[U]nder the totality of the circumstances — [the first officer's] authoritative manner and direction of [the defendant] away from [his] car to another location, the publicized shootings by white Portland police officers of African- Americans, the widely distributed pamphlet with which Washington was familiar, instructing the public to comply with an officer's instructions, that [the officers] outnumbered Washington two to one, the time of night and lighting in the area, that [one officer] was blocking [the defendant's] entrance back into his car, and that neither [officer] informed [the defendant] he could terminate the encounter and leave — we conclude that a reasonable person would not have felt free to . . . leave the scene.
  Second, based on a totality of the circumstances, it was clearly erroneous for the district court to conclude that the defendant's consent was voluntary. The defendant had been seized when he was asked to consent to a search of the car, and that weighs heavily in favor of finding the consent involuntary. Further, the context was significant:
[Consent was granted] (1) at night, (2) [when the defendant was] outnumbered two-to-one, (3) in the unique situation in Portland between the African-American community and the Portland police, and (4) after complying with [the first officer's] detailed instructions, (5) and being searched under [the officer's] direction, at [the] squad car with his hands on the top of the squad car, (6) with the return to his car blocked by [the second officer], so that (7) a reasonable person in Washington's circumstances would not have felt free to terminate the encounter and leave.
The court concludes:
Given that it was late at night on a dark street, that [the defendant] had been led away from his car and seized by two police officers, and the tension between the African-American community and police officers in Portland in light of the prior shootings above-mentioned, we have no confidence that [the defendant's] assent to the car search was voluntary under the total circumstances.
Further, even if the district court's factual finding that the defendant consented was not clearly erroneous, the consent was a fruit of the illegal seizure. Thus the consent was invalid and the search of the car violated the defendant's rights.

  My quick reaction: These are sympathetic facts for the defense, as the police officer was just fishing and had no reasonable suspicion or cause at all. But were the district court's factual findings really clearly erroneous? The panel's opinion doesn't tell us much about the testimony at the suppression hearing, or what factual findings the district court made beyond the ultimate factual questions of custody and voluntariness. (This makes it hard to distinguish some of the factual issues from mixed issues of law and fact.) But based on my read of the opinion, the evidence that the district court's findings were "clearly erroneous" seems pretty thin. Readers, what do you think? Am I misjudging the case?

  Oh, and I should add that I had to take out some details of the opinion just to keep it a reasonable length; needless to say, the best way to weigh in here is to read the opinion first.
dearieme:
Forgive my ignorance, but do Judges Gould, Paez and Rawlinson live in Portland?
6.20.2007 3:31am
A Northwestern Law Student (mail):
It's certainly true that police "requests" for consent -- "Would you mind STEPPING OUT OF THE CAR RIGHT NOW, sir." -- are often requests in syntax only. On the other hand, you're right to point to the deferential standard of review here. In this case, though, the court reversed the district judge on his holding that Washington had not been seized at all, which was reviewed de novo. The judge's holding that Washington had consented to the search depended so heavily on his conclusion that there had been no seizure in the first place that I'm not sure reversal was unwarranted. Maybe someone who knows better than I could say whether the appellate court could have limited its ruling to the seizure issue and remanded to the district court for further consideration of whether, given that there was a seizure, the consent was voluntary.
6.20.2007 3:36am
A Northwestern Law Student (mail):
Gould sits in Seattle, Paez in Pasadena, and Rawlinson in Las Vegas.
6.20.2007 3:40am
OrinKerr:
A Northwestern Law Student,

Thanks for the comment. I believe the seizure issue was a mixed question of law and fact, however. As a result, the factual issues that went into the analysis of whether a seizure occurred were reviewed for clear errror rather than de novo. And I think that's a pretty important point: presumably the question of the precise legal standard of whether a seizure occured is irrelevant to whether the consent was voluntary.
6.20.2007 4:05am
A Northwestern Law Student (mail):
Professor Kerr,

I respect your interpretation, but I guess I had read differently the court's explanation that

[w]hether an encounter between a defendant and an officer constitutes a seizure is a mixed question of law and fact that we review de novo. We review the trial court's factual findings, however, for clear error.

Slip op. at 7262 (citation omitted). On my reading of the case, the appellate court agreed with the district judge's "findings" of the facts of the case, but disagreed as to how the law applied to those facts -- with the mixed question of law and fact, not just with "the precise legal standard" -- and the de novo review standard applies to the judge's holding on that mixed question.

And the issue whether a seizure occurred does not seem to me to be "irrelevant to whether the consent was voluntary." Specifically, the seizure issue closely relates to the question whether the subject was in custody. See id. at 7273. And the presence or absence of custody is one of the five factors -- I would think the most important one -- in determining whether consent was voluntary. Id. at 7272-73. Am I missing something?
6.20.2007 4:28am
Peter Young:
It's so nice to see a court that does not blink and shut out the realities of these encounters.

This is the second time in a couple of days that the courts have paid attention to the real world in a search and seizure context. Justice Souter's opinion for a unanimous court Monday in Brendlin v. California adopted as "intuitive" the proposition that a reasonable person who is a passenger in a car stopped by the police would not feel free to walk away. Was that a factual finding? Was it a legal conclusion or a mixed question of law and fact? Was it based on any evidence offered before the lower court? Or was it merely a common sense notion of the realities of the situation?

Deferential standards of review ought not to be permitted to justify the abandonment of common sense notions of what goes on in the real world.

What some justices say is common sense, however, may not be to others. Even the controversial and the speculative might masquerade as common sense. See Justice Kennedy's assertion, unsupported by evidence, of the psychological harm caused to some women who undergo partial birth abortion, which was disputed by Justice Ginsburg in dissent. I suppose adoption of common sense notions is more acceptable when they are joined by a unanimous court, as in these two search and seizure cases.
6.20.2007 6:06am
lurker:
On these facts, would the 9th Circuit find that proper consent was ever possible? Even if there is a Miranda-like warning ("you are free to leave and free to say no and there will be no consequences") there is still inherent contextual coercion.
6.20.2007 6:33am
ATRGeek:
I agree that this case is one of several recently that seems to be chipping away at the legal fictions surrounding the interactions between uniformed police officers and citizens. I also agree with lurker that the looming problem is that without these legal fictions it may be difficult for the prosecution to prove that there was "voluntary" consent in a wide range of typical interactions with the police.

Which to me is not such a bad result--I am not convinced the consent search exception is really a good idea, at least not as currently defined and applied to uniformed police officers.
6.20.2007 7:40am
ATRGeek:
Just to elaborate a bit:

Part of the reason why I think this whole effort may be misconceived is that in some sense the Portland pamphlet is right: we generally want people who are approached by the police to follow any directions that the police may give them, short of something which is clearly unlawful. And we also do not want our police to have to be jerks when giving their directions. So, the background setup is that we basically want people to assume that they are being politely ordered around by the police in a lawful manner and to obey those orders.

And yet if the police then start going on fishing expeditions and uncovering evidence in violation of the Fourth Amendment, we suddenly introduce the notion that maybe it would be better if every citizen reacted to police requests with careful consideration of their constitutional rights before they even think about complying. If taken seriously, that notion would completely undermine our background desire to see people routinely complying with polite police directions. And so I can't take it seriously.
6.20.2007 7:55am
David Chesler (mail) (www):
Agreed with the prior comment by ATRGeek.
I am curious if this ruling allows any consent? What could defendant have done that would make a warrantless search consensual? Maybe nothing, just as a minor can't consent to sex, and maybe in these situations (interactions with police) that's a good thing.

I am worried because here in Massachusetts SJC Justice Roderick L. Ireland wrote in the case of Michael DePeiza, where a search was unanimously upheld, "Most persuasively, the defendant continually attempted to hide his pocket from the officers' view. When a person attempts to conceal something from the police, that concealment can contribute to the reasonable suspicion necessary to support a stop."

So, if you don't want the police to see it, they have a right to search it. The only way to avoid the search then is to show it to them. Catch-22.

Stepping outside of police searches, just yesterday I turned down a pre-employment drug screening. An odd situation has me doing a one- or two-day software task, and there's no way the test results would be in before the job is over. The recruiter (who'd told me this was a 12 month contract-to-perm opportunity, and I bid accordingly low to get the job -- we don't usually do day labor in my industry) told me "When people check 'no' we usually worry that there is a reason" and I told him "The reason is you've got to pay me a lot more than $800 for me to pee in a cup." Just doing my part.
6.20.2007 8:50am
33yearprof:
The District Court judge must be white, smart, rich, and have a life-long history of the police deferring to his obvious upper class standing. He or she has undoubtedly spent their entire life in a world totally alien to "the street." Such persons can't comprehend, even if presented with hours of testimony, the powerlessness that those outside of the "top 10%" feel when confronted by the authorities. Thus, we continually get fact findings that ignore reality.

Apparently some Judges on the Court of Appeals know this.

If this isn't a case for suppression, none is.
6.20.2007 9:08am
Curt Fischer:
@ David Chesler:


I am worried because here in Massachusetts SJC Justice Roderick L. Ireland wrote in the case of Michael DePeiza, where a search was unanimously upheld, "Most persuasively, the defendant continually attempted to hide his pocket from the officers' view. When a person attempts to conceal something from the police, that concealment can contribute to the reasonable suspicion necessary to support a stop."

So, if you don't want the police to see it, they have a right to search it. The only way to avoid the search then is to show it to them. Catch-22.


Will this ruling stand? Will it go to SCOTUS? Can you link to the decision?

Possibly other facts of the case support a ruling that the search you mention is legitimate, but certainly not the passage that you quoted. I am sad to be a Massachusetts resident right now.
6.20.2007 9:24am
Bruce Hayden (mail) (www):
I too see a troubling tension here. On the one side, we want everyone to help out the overworked, overstressed, cops in order to provide a safe and well ordered society. But on the other hand, recently we keep running into situations where complying with them in order to look innocent, people are going away for years to prison.

Part of the problem is that this request in name only sort of search has over the years become the common way for the police to bypass warrant requirements. As I have pointed out before, I have talked to state police who have been specifically trained in class to do this in such a way that it sounds like a demand, but is technically not. These Portland cops seem to have taken it to the next level by prefacing this with a question that predisposes the subjects of their attentions towards compliance (whether they have anything on them or later in their car that they shouldn't). Plus of course, the brochure - better comply if you are black and don't want to be shot.

And I suspect a good part of the reason that this has become so prevalent is that police are often faced with a dilemma, that they don't have probable cause for the search they want to conduct, but the only way to get probable cause for an arrest is to conduct the search, etc.

If the law and its enforcement were entirely consistent and absent discretion, this wouldn't be a problem. Then we could have a bright line, where people could be expected to help out the cops and those caught with something they shouldn't have (including stuff in their blood), would go away to prison. But the system is arbitrary, there is a lot of discretion involved capable of being abused, and the penalties are often totally out of proportion to the offense. The War on Drugs (including alcohol) has made this much worse.

The reality is that there are enough laws on the books and correspondingly long prison terms, that many, if not most, of us could end up spending much of our lives behind bars, should police and prosecution discretion go against us. But that means that it is primarily the police, and not the people, who are determining who goes to prison and who doesn't.

I find it humorous that a conservative such as I can find myself siding with the Ninth Circuit. Yet, I do here. But, I do so having found myself several times in my youth at the receiving end of police discretion and later watching this sort of consent in name only in action. I was a young male once. Sometimes I think that the only reason that I didn't end up in jail was that I was also white and from a decently affluent family (with an attorney for a father). That almost sounds like liberal guilt.
6.20.2007 9:32am
elChato (mail):
This seems incorrect on the law, though the facts are sympathetic.

If it were written by Pregerson or Reinhardt, I wouldn't even trust that they had stated the facts accurately.
6.20.2007 10:09am
Justin (mail):
This certainly seems less troubling than the Court's subsequent interpretations of its Winsor case, which declares as a search certain (all?) requests by a police for a person to open the door to its home to talk to the police, as an unlawful search. Certainly, cops are more likely going to have legitimate reasons to want to talk to someone (your neighbor's house was broken into, did you see anything?) than search their car and person, so the effect on law enforcement is more severe.
6.20.2007 10:17am
Justin (mail):
"If it were written by Pregerson or Reinhardt, I wouldn't even trust that they had stated the facts accurately."

That would say a lot more about you than Preferson or Reinhardt, imho.
6.20.2007 10:18am
BladeDoc (mail):
Why should we let the State get away with the "mental frisking" and "request in name only" type of behaviors? I propose that in order for a consent search to be legal the police need to expressly state that agreeing is voluntary and that there will be no consequences to not consenting. The only counter arguement that I can see is that less people will consent, thereby making the power less uselfull. To that I respond that if people were only consenting because they didn't know they could say no, it really wasn't a consent search. The law should apply equally to the ignorant and the educated.
6.20.2007 10:18am
Justin (mail):
Gr. Pregerson or Reinhardt.
6.20.2007 10:18am
BladeDoc (mail):
God I hate typos, sorry. Preview is your friend.
6.20.2007 10:19am
billb:
The number of consent searches in Austin has dropped cosiderably now that the police (and the Travis County Sherriffs, IIRC), as a matter of department policy, use a written form (warning: PDF) rather than a verbal OK as evidence of consent.
6.20.2007 10:36am
Former Oregonian (mail):
33yearprof reflexively declares (without bothering to check) that the district judge must be "white, smart, rich, and have a life-long history of the police deferring to his obvious upper class standing." In fact, Judge Ancer L. Haggerty is black, was born in Vanport (a working class area of Portland), worked for the public defender's office in Portland after law school, and was appointed by President Clinton. I'm not defending his decision in this case, just noting that 33yearprof's ad hominem comment appears to be baseless.
6.20.2007 10:41am
Ben P (mail):
Sadly, my guess is that, assuming the supreme court takes this up, It will get overturned.

Sadly, because I would agree with a number of the posters here that there is a big disconnect between the reality of people actually feeling free to walk away or free to decline consent and the imaginary reasonable person that feels free to turn his back on the cops when they ask to see something or ask to search something.
6.20.2007 10:45am
Johnny Come Lately:
I was trying to compose a professional-sounding response to conform with the really admirable tone of the other posters, but I gave up.

This is why America rocks. Across the world, the will to power leads inexorably to a tyranny of one sort or other. The separation of powers quietly, and without a great deal of fanfare, or, more importantly, turmoil, has begun to effectively stand up to thuggery.

If the this and the S.Ct. decisions are not mere temporal aberrations, I'm beginning to feel a lot better about the nation I'm part of that I have in a long time.
6.20.2007 10:49am
Prufrock765 (mail):
I hate it when cops do that. It seems to me, though, that if the cop asks that question: "Do you have anything....?" and the guy says "yeah I have some crack in the glove compartment" that the evidence seized would be automatically suppressed as the fruit of an un-Mirandized confession.
Perhaps there should be some kind of articulable standard before a cop is even authorized to ask for consent...even a signed one.
6.20.2007 10:56am
Anderson (mail) (www):
[w]hether an encounter between a defendant and an officer constitutes a seizure is a mixed question of law and fact that we review de novo

Good catch, Northwestern. Whether or not that's the correct standard, it's evidently the one they said they were using.
6.20.2007 11:00am
Ben P (mail):

that the evidence seized would be automatically suppressed as the fruit of an un-Mirandized confession.


I might be wrong, but I'm pretty sure that "traffic stops" or terry stops for that matter, don't count as coercive surroundings for the purposes of Miranda warnings. That was Berkemer v McCarty.


Regarding the district court judge, the ad hominem has already been answered, but I would reply that rather than some sort of racial or cultural bias, the district court judge showed a bias that is pretty common in trial court judges in my (limited) experience. That is the bias toward siding with the police and the prosecutors.

It certainly seems to be a little more pronounced in areas like where I am where some state judges are elected, but even in cases such as this, far more often than not, the trial court seems much more amenable to letting evidence in rather than excluding it, and it's the appellate courts that consistently overturn the trial court.
6.20.2007 11:05am
Jake (Guest):
Several commenters have pointed out that there can be a sort of Catch-22 situation here (either displaying evidence of guilt, or creating reasonable suspicion for a search). The unfair dilemma, though, is only created for people who are guilty of a crime.

If you don't have contraband in your pocket, you won't have to shift around to try to hide it from the police, and you won't create reasonable suspicion to search your pocket. I guess a lot of this gets back to the debate over the suppression remedy as a means to regulate police conduct.
6.20.2007 11:20am
Houston Lawyer:
So maybe the defendant saw the Chris Rock video on how not to get beat up by the cops. Although I believe the courts have presumed much intestinal fortitude in denying police requests, I believe that it is the correct standard. I don't think that requiring a Miranda warning before a cop can make any request of you to be good public policy.
6.20.2007 11:28am
s806:
I haven't read all the comments yet but I will note that I believe there is a difference between a white man refusing a search and a black man refusing a search. I don't know that I would feel that I had the same leverage if I were the black man in that situation. In that sense he may not have had a viable "choice".

In light of the Portland shootings, it is understandable that a felon with an unlicensed firearm is afraid of encountering the police, more so than a black non-felon who is not carrying.
6.20.2007 11:28am
33yearprof:
I don't live in Oregon and have no idea of the District Court judge's actual life experience.

I said "must be," not "is." It's hyperbole.

That said, 90% of judges (in my opinion) do fit the description I used. And virtually all of them (as I did as a young prosecutor) have a very narrow range of experience as "clients" of the police. For example, in over 60 years of life, I've never been touched by a police officer "on the job" and I've had zero non-traffic encounters with them.

Street reality (and the responses of the poor, undereducated, powerless) is simply beyond most (if not all) judge's comprehension.
6.20.2007 11:39am
Archon (mail):
I'm going to cite this case when I move to suppress in a case involving a rich white kid and two heavy handed black cops who decided to use this poor kid as an example to "get back at whitey."

Moral of the story - don't drive your new BMW through a black neighborhood to drop off your black friend.
6.20.2007 11:42am
Justin (mail):
Prufrock,

Miranda rights do not attach until you are actually arrested, and indeed, there are some decisions that have denied a defendant relief on far more contraversial unMirandized "confessions" than your hypothetical. I do not think a Miranda defense would have any substantial chance of success.
6.20.2007 11:47am
Prufrock765 (mail):
Justin
Right.
I forgot that there must be "custody"...(not an arrest...correct?) for Miranda to attach to an interrogation...Thank you
6.20.2007 11:52am
Philistine (mail):
Just from a policy perspective--I don't see any problem with requiring some sort of "Miranda-like" statement before a consensual search. Something like--"Do you mind if I search your car? You don't have to, and you're free to leave right now without me searching if you like."

Theoretically, a person giving consent is presumed to know he is free to go--so what possible policy reason can there be against requiring that to be made explicit?
6.20.2007 11:59am
Justin (mail):
Technically, there are three ways to obtain Miranda rights. The first does not require "interrogation," while the other two do. However, the third obviously requires some arrest as well, and the second has been read as a fairly limited exception:

1) The suspect was formally arrested.
2) The suspect was not under arrest but the circumstances surrounding the questioning constituted the "functional equivalent" of a formal arrest.
3) The suspect was serving time in a jail or prison and was questioned under circumstances that increased the coercive pressures that are inherent in an institutional setting.

As for the second extention, even detention will not suffice, if detention was not lengthy. Almost by definition, this prevents traffic stops from being custodial, at least under Californian law.
6.20.2007 12:00pm
Justin (mail):
Grrr, the second exception.
6.20.2007 12:01pm
Matt W.:
Let me second the earlier poster who noted the easy bright line rule of requiring that a form (stating that a person has a right to refuse) be signed before a "consent" search is presumed valid.
6.20.2007 12:03pm
Philistine (mail):

Several commenters have pointed out that there can be a sort of Catch-22 situation here (either displaying evidence of guilt, or creating reasonable suspicion for a search). The unfair dilemma, though, is only created for people who are guilty of a crime.

If you don't have contraband in your pocket, you won't have to shift around to try to hide it from the police, and you won't create reasonable suspicion to search your pocket. I guess a lot of this gets back to the debate over the suppression remedy as a means to regulate police conduct.



What if what you have in your pocket is not illegal--but would be embarrasing if viewed by another?

Sexually explicit photos, for instance? Your paycheck? A love note from a mistress?
6.20.2007 12:05pm
Dave N (mail):
I found this case interesting as well. I believe (and I think the judges who reveiwed this case concur) that it is good police work to investigate why someone (black, white, blue, whatever) is sitting in a parked car at 11:30 at night. That is certainly not a time when someone is typically waiting for carpool companions to join them--and certainly is suspicious.

The one question unanswered is how the U.S. Attorney took over the case in the first place. Did the the local district attorney decline it for some reason? If so, why? At least in my experience, when local cops are involved, the state level prosecutor gets first crack, when federal agents are involved, the feds do.
6.20.2007 12:10pm
OrinKerr:
33yearprof,

I'm curious, though, were the factual findings in this case clearly erroneous? Or is the point that the Ninth Circuit's ruling resonates with your sense of how the world works generally, such that you imagine that must have been what happened in this case?

Justin,

Obviously Miranda is unrelated to this post, but I'm curious, where are you getting these categories? Is that based on California state law?
6.20.2007 12:11pm
Steve:
What? No comments yet to the effect that there's no such thing as an "illegal firearm"?

This decision strikes me as a rather shocking recognition of reality. You don't see many like it, that's for sure.
6.20.2007 12:20pm
Philistine (mail):

The one question unanswered is how the U.S. Attorney took over the case in the first place. Did the the local district attorney decline it for some reason? If so, why? At least in my experience, when local cops are involved, the state level prosecutor gets first crack, when federal agents are involved, the feds do.



I would assume it was Project Safe Neighborhoods. From their website: "Under Project Safe Neighborhoods, crimes involving guns are carefully screened to determine whether prosecution at the federal or state level will mean stiffer sentences for violators."

The 70 month senntence he got is presumbably significantly longer than he would have got from the state.
6.20.2007 12:31pm
FC:
1. Funny, all of what AdHominemProf Ad VerecundiamProf 33yearprof said about judges applies a fortiori to professors in my experience.

2. Written consents are clearly discriminatory in effect against illiterate people. How powerless they must feel when confronted not only by a man with a gun but with the printed word.
6.20.2007 12:32pm
FC:
Steve:

Everyone knows all guns should be illegal. Everyone except the Ninth Circuit, apparently.
6.20.2007 12:35pm
33yearprof:
I'm curious, though, were the factual findings in this case clearly erroneous?


The point is that the clearly erroneous test does not, and probably can not, get at this type of "world view" bias. That doesn't make the bias go away, though.
6.20.2007 12:48pm
Dave N (mail):
I understand the idea behind Project Safe Neighborhoods. But the local prosecutor will still be the one with first dibs. Heck, the U.S. Attorney wouldn't even know that Washington had been arrested if someone from local enforcement didn't tell him.
6.20.2007 12:50pm
ATRGeek:
I agree with Jake that this really gets back to the exclusionary rule.

Even in the best of circumstances it is unlikely to be an effective remedy, and yet is so unpopular precisely because of the remedy it provides. So, we are constantly carving out new exceptions to our Fourth Amendment doctrine or enlarging the old ones just so that we can avoid the exclusionary rule and admit the evidence we need to convict people we believe are guilty of a crime. Which, incidentally, has the side-effect of incentivizing our police officers to become liars and conmen in an effort to place themselves within the boundaries of these exceptions.

So, the root question is why we tolerate a system which not only fails to effectively disincentivize police misconduct, but actually incentivizes further police misconduct. I think the answer (although in some sense this is just a reframing of the problem) is that Americans have a strong authoritarian streak. So, we actually sorta like police misconduct in the name of getting the bad guys, provided, of course, that this misconduct is directed at ONE OF THEM and not ONE OF US.

This authoritarian streak also applies to sentencing insofar as we Americans tend to support absurdly harsh punishments (particularly long prison sentences) for many relatively minor crimes, again provided that the person getting the absurdly long sentence is ONE OF THEM and not ONE OF US (see Libby, Scooter). Ironically, this means that many criminal defense folks see a strong need to shelter people from all criminal liability whatsoever when possible. Accordingly, they support the exclusionary rule because when it does apply, it may have such a sweeping effect.

But in pushing for such a remedy, they just trigger a backlash in the form of more exceptions to the Fourth Amendment and more tacit approval of police misconduct. Given all this, the real answer to the problem is for Americans to become less authoritarian, in which case we could both reduce punishments and police misconduct on the one hand, while also getting rid of unpopular remedies like the exclusionary rule on the other. Unfortunately, I have no idea how to bring about such a fundamental change in this aspect of American society.
6.20.2007 1:16pm
Justin (mail):
I did a quick google of "miranda custody" for a summary piece, and the first hit was a summary piece put out by the Almeady County's District Attorney. It's based primarily on state law, i.e., California state court applications of federal law. I made the assumption for the limited purpose of replying to an off-topic comment that if Californian interpretation was wildly contrary to the Ninth Circuit's understanding, that it would be forced to change accordingly.
6.20.2007 1:19pm
Justin (mail):
Another somewhat off topic question: What on God's Green Earth was the Portland Police Department thinking when publishing those pamphlets?
6.20.2007 1:23pm
Thief (mail) (www):
@33yearprof:

You don't have to be in the "top 10%" to know that you have the right to say "no" when police ask to search you, your car, or your house without cause. To the extent that people don't know this, that is a failure of the educational system, not of the justice system. "Street Reality" does not invalidate law.

(BTW, this video should be mandatory viewing in all schools, preferably around 8th grade. With a test afterward.)
6.20.2007 1:25pm
noops:

I found this case interesting as well. I believe (and I think the judges who reveiwed this case concur) that it is good police work to investigate why someone (black, white, blue, whatever) is sitting in a parked car at 11:30 at night. That is certainly not a time when someone is typically waiting for carpool companions to join them--and certainly is suspicious.


While possibly suspicious, I think maybe not. There are enough late/night shift people everywhere that it doesn't hold water.

Beyond that, this is Gestapo mentality. Without fear of the law, I can (well, should be able to) pretty much sit in my car on a public street.

"Papers please?"
6.20.2007 1:34pm
Ben P (mail):

"Street Reality" does not invalidate law.


I think the proper question is not so much whether it's "known," it's how many people honestly have the ability to tell an officer, wearing a uniform, carrying a weapon, and who in many cases is speaking in a commanding tone, that "No, I'm not doing that"

Further, and with all due respect to the integrity of police officers, what would have happened in this case if the suspect had actually said "no" and the officer was willing to testify in court that the suspect had said "Yes." Without other significant evidence no court is going to toss a search based on the fact that the suspect denies giving consent to a search that found incriminating evidence.
6.20.2007 1:36pm
OrinKerr:
33yearprof,

Just so I understand, do you think the decision was rightly or wrongly decided as a matter of law? The issue here is whether a trial judge's findings were clearly erroneous, not whether the case comports with your sense of how the world tends to be.
6.20.2007 1:38pm
markm (mail):
In conjunction with a pamphlet issued by the police department that can be read as "give consent to be searched and we won't shoot you", there can be no voluntary consent.
6.20.2007 1:52pm
Thief (mail) (www):

I think the proper question is not so much whether it's "known," it's how many people honestly have the ability to tell an officer, wearing a uniform, carrying a weapon, and who in many cases is speaking in a commanding tone, that "No, I'm not doing that"


It's not that hard to develop the ability to do that. A uniform, a weapon, and a commanding tone does not give a police officer a blank check to violate your rights. The only thing that gives him a blank check is your consent to give up those rights. (The video link I posted is an excellent demonstration of how not to do this.)


Further, and with all due respect to the integrity of police officers, what would have happened in this case if the suspect had actually said "no" and the officer was willing to testify in court that the suspect had said "Yes." Without other significant evidence no court is going to toss a search based on the fact that the suspect denies giving consent to a search that found incriminating evidence.



First, it's pretty much standard for police cruisers nowadays to be equipped with dashboard cameras and for the officers to wear microphones for recording routine traffic stops. "Their word against yours" is not a problem when there's a videotape.

Second, if the officer testifies in court that there is consent when there was not, that's perjury.
6.20.2007 1:53pm
Thief (mail) (www):
BTW, here's the Portland Police Pamphlet mentioned in the opinion. I see nothing that's objectionable or a mis-statement of the law, but then again, IANAL (yet).
6.20.2007 2:02pm
ATRGeek:
As I recall, the clearly erroneous standard requires something like that the COA arrive at a "definite and firm conviction" that the District Court made a mistake.

Given the circumstances that the Ninth Circuit cites, I don't see why they could not have such a "definite and firm convinction" that consent was not voluntary in the relevant legal sense. By the way, I gather part of the problem is that one of the relevant factors is whether the person was in custody, and the Ninth Circuit already had held that the District Court erred on that subject. So, in a sense the District Court's finding of voluntariness started in the hole, since it was based in part on a false predicate, and given the other circumstances it never got out of that hole.
6.20.2007 2:03pm
Ken Arromdee:
Several commenters have pointed out that there can be a sort of Catch-22 situation here (either displaying evidence of guilt, or creating reasonable suspicion for a search). The unfair dilemma, though, is only created for people who are guilty of a crime.

The dilemma of being unable to refuse a search is created for everyone.

All that's different for innocent people is that the unavoidable search won't turn up anything. But random police searches without probable cause or consent are bad all by themselves. We don't say that innocent people shouldn't worry about warrantless searches just because the searches won't turn up anything.
6.20.2007 2:06pm
Ben P (mail):

Second, if the officer testifies in court that there is consent when there was not, that's perjury.


who says?

The criminal?

That's why I included the bit about the integrity of police officers. I'm well aware it's perjury, I'm sure the officers that do it are aware it's perjury too. But it happens, primarily because of the "getting the bad guy" versus "letting the bad guy go" dilemma set up by the exclusionary rule.

And technology is often fallible. The officer could be a little too far away, and talked to the suspect outside of the camera field of view, or the suspect might have spoken a little too quietly for the microphone to pick up anything other than an *indistinct* response.

The Supreme Court has basically said as much in Whren and Atwater in that they've repeatedly held that they're not willing to interfere with the decisions an officer makes "on the ground"

I fully recognize there's a very powerful policy in allowing police officers to do their job, but that doesn't make this situation any less troubling.
6.20.2007 2:30pm
Dave N (mail):
Noops,

I hardly think a quick investigation as to why a person is sitting in a car at 11:30 at night is a Gestapo tactic. The Washington opinion did not criticize the police for checking out an unusual activity.

I agree that the police are stuck with the response given, that "I just feel like sitting here" is a completely acceptable response and in itself does not give the officers authority to do anything else. Of course, the police would be doing nothing wrong in then deciding that was also a great location to take a break and catch up on paperwork.
6.20.2007 2:42pm
Pete Guither (mail) (www):
One thing I like to remind my friends when they say that they haven't done anything wrong, so they have no reason to object to a search: Unless you have meticulously examined every part of the inside of your car since the last time someone else rode in it, how can you be sure that they didn't drop something out of their pockets that fell underneath or between the seats? A pill, a bit of plant material...

I always recommend refusing searches, regardless of "having something to hide." But the refusal is more than just practical. There's something offensive to my notion of America in having officers essentially go up to people and say "I'm going to start by assuming that you're guilty of something. Prove to me that you're not by letting me paw through your stuff."
6.20.2007 2:44pm
Justin (mail):
I'm not sure that ordering people to "stay put," not to "walk or run from police," "if ordered to do so, comply with the procedures for a search," and that the proper procedure for "not agree[ing] with the reason for the stop" is only to "keep track of all pertinent information about the incident," is necessarily false, but it certainly is going to cut against the idea that a reasonable person being asked to submit to a search in such circumstances is doing so based only on his own volition.


Also, call me silly, but is this true? Other than the fact that courts tend to argue that the fourth amendment doesn't apply to drugs, I don't remember anything in Terry that permits this. Note the bolded part:

If they have reasonable suspicion that you have a weapon or illegal substance, they can search you.
6.20.2007 4:03pm
Justin (mail):
PS - I understand that, because possession of illegal drugs is a crime, that reasonable suspicion of such will allow a Terry stop, which will allow a protective patdown, even if there's no reasonable suspicion of having a weapon. My problem, poorly articulated perhaps, is that the formulation of this ignores even the required "fiction" that the Terry stop search is for weapons. Basically, the Portland pamphlet says "Terry means we can search you." While that is certainly how it works in practice, that's because cops DONT FOLLOW THE CONSTITUTIONAL MANDATE (the "spirit of the law"), and when we don't even bother with lying about the purpose of the search, I think we've drifted far past the original justification for Terry.
6.20.2007 4:19pm
Dave D. (mail):
....I was a California cop for 32 years. I was constantly amazed at the ignorance and stupidity of people who consented to voluntary searches or who ignored the clear wording of Miranda ( ANYTHING you say CAN and WILL be used against you )in order to back up their lies or argue their case. This fellow first lied to the Portland cop and denied any wrongdoing or contraband. He knew he was dirty, but as many do he consented to a search, not because he knew he couldn't refuse, but to buttress his lie. Here is where the stupid part comes in. I have asked many a suspect why they consented to a voluntary search. The most common answer was that they thought the cop would take their assent as corroboration of innocence and that he would not search. This held true even when the search was buttressed by a signed written consent form. The second most popular statement was " That's not mine ". Even when it was in their pockets. Even when it was taped to their skin. And more often than not, that was a voluntary, spontaneous statement made when the officer discovered the goods, before they were identified or actually seized. Amazing !
...Signed statements devolved from accusations of perjury. The result of the exclusionary rule is that many if not most uneducated suspects truly believe that it's magical ( to them ) properties can overcome consent searches; ALL searches. In this particular case....it did.
6.20.2007 4:52pm
Deoxy (mail):
I think BladeDoc got it right a good ways back:

"I propose that in order for a consent search to be legal the police need to expressly state that agreeing is voluntary and that there will be no consequences to not consenting."

There is no reasonable argument against that which I have ever heard. It is a simple statement of the facts of the law; SCOTUS's fictitious "reasonable person" is based on the assumption that people know that, so how can it possibly be a bad thing to specifically tell real people what they supposedly already know? Especially when many of them don't...

Also, "nothing to hide" is the anti-thesis of the concept of th 4th Amendment. The whole point is that the GOVERNMENT has to prove (or have "reasonable" suspicion) that you DO have something to hide, not that you have to prove you don't. This is to protect the innocent from the government, not the guilty; that the guilty also benefit from it at times is an unfortunate side effect, but it is well worth the cost.
6.20.2007 5:04pm
Dave D. (mail):
....As to the rational basis for the 9th circuit to believe that an excon, or black male in general was afraid he'd be shot because he refused to consent to a vehicle search, as has been suggested and assumed by some posters here, I worked in South-Central L.A., Oakland and other places in California. Many times I was screamed at and cursed at by felony suspacts not yet in custody. Many times I was taunted by suspects to " Shoot Me, ****** ". I saw fear of being caught, but not fear to confront, verbally, in many arrests. Perhaps someone else with street experience could weigh in about that, but timidity to assert rights was not a common feature I saw in Black Society. It was as rare as chicken lips, in my experience.
6.20.2007 5:23pm
Hattio (mail):
Deoxy (and other commentators) make a common error, namely that the 4th Amendment was adopted to protect the innocent. As a matter of fact, it's at least as probable that it was meant to protect the guilty since everyone who participated in the revolution was by definition guilty of treason, usually of taking up arms against the government, and many of the Founding Fathers were engaged in smuggling. The purpose of the 4th Amendment is not to protect the innocent, but to protect the guilty from government over-reach (after all, if the public is willing to buy smuggled goods and look the other way, what business is it of the King to tell New England businessmen what they can and can't bring into the country).
6.20.2007 6:34pm
Fub:
Bruce Hayden wrote at 6.20.2007 8:32am:
I too see a troubling tension here. On the one side, we want everyone to help out the overworked, overstressed, cops in order to provide a safe and well ordered society.
I have never understood this argument, or its premise. I've never been a cop, or any other career government employee. So, whenever I've ever expressed to anyone the slightest complaint that I was "overworked" or "overstressed", the standard response has always been "if you can't stand the heat, stay out of the kitchen". I've always figured that was the right approach to job satisfaction.
The reality is that there are enough laws on the books and correspondingly long prison terms, that many, if not most, of us could end up spending much of our lives behind bars, should police and prosecution discretion go against us. But that means that it is primarily the police, and not the people, who are determining who goes to prison and who doesn't.
So I don't understand why cops, or any other government employee, should get that special "overworked and overstressed" dispensation -- especially when granting the dispensation puts every citizen at risk of increasingly worse police behavior.
6.20.2007 6:40pm
Dave D. (mail):
....I agree, Fub. Overworked and overstressed is a trite expression. So is underpaid. I wasn't any of those things. And the posit of helping the cops out because of their personal difficulties is ludicris. If you help out the State or it's minions, it's because it's your laws and your country, not the cops law. Like buckling up, you do it for your own safety.
6.20.2007 6:52pm
dwlawson (www):
I have a related question regarding cooperating with officers. Last saturday Jesse Jackson, Sr. and Rainbow/PUSH led a march against a suburban Chicago gun shop. During this march, and one that happened a few weeks ago, the local PD cordoned off the streets.
A small but dedicated group of us (20-50) have been showing up in counter-protest to support the shop. At this particular march the PD herded the counter-protesters into the shop and blocked access to prevent Jackson from leading protesters into the shop. They were then held there for the duration unable to express their support.

Luckily my wife and I and a few others were a bit late and got locked out.

There is another protest planned for this Saturday and I have been telling people that they shouldn't have to comply with the officers to enter the shop. I suspect that if they are in there when the police block the doors they are stuck. I don't see how they can be forced to enter the shop.

I plan to respectfully refuse to comply with such a "request."
6.20.2007 7:29pm
Bruce Hayden (mail) (www):
Sorry if it seemed trite. I was trying to give the police the benefit of the doubt there. The easy solution to the police's problem of getting sufficient probable cause for a warrant is to ask in such a way that those who are to be searched are likely to consent.

The reason that I jumped into the part about there being so many offenses on the books that most of us could be indicted for one thing or another is that absent that, I would be much happier with a bright line. I am less willing to give the police the benefit of the doubt, when they are the ones who in good part determine who gets charged and for what. Even if you throw in the prosecutors, there is still a lot of power, through all that arresting and charging authority, in some pretty unaccountable hands.
....I agree, Fub. Overworked and overstressed is a trite expression. So is underpaid. I wasn't any of those things. And the posit of helping the cops out because of their personal difficulties is ludicris. If you help out the State or it's minions, it's because it's your laws and your country, not the cops law. Like buckling up, you do it for your own safety.
There are laws, and then there are laws. I was reading recently about the second nude bicycle ride in Denver. Ultimately, the riders were arrested, and charged with public indecency, even if not fully naked. But the ones who wanted to get dressed first, or something like that, were also charged with resisting arrest. Or, another Denver story - prior to the CCW law that went into effect a couple of years ago, the Denver cops would arrest anyone they caught with a pistol, unless they had one of the very rare permits, etc. If the handle of a pistol was visible, it was considered brandishing, and if not, it was considered concealed (w/o a permit, which only the mayor, etc. could get).

Of course, when the brandishing law was enacted so long ago, it meant flashing the gun around in order to scare someone. Indeed, I can remember when holstered pistols were not uncommon in downtown Denver (along with boots and hat, of course). And concealed weapons were those that were truly hidden, not that you could easily see, but had their handles covered, etc. Rather, the derringer up the sleeve sort of concealed. Similarly, resisting arrest meant physically resisting, likely to the level of violence, and not just not moving fast enough for the cops' tastes. Or, maybe worse, I was told yesterday of two single mothers here who will be going to prison in a couple of years when their kids are old enough, because they got a little drunk and compared the commission rates of the real estate brokerages that they worked for. That was considered price fixing, and a felony under the anti-trust statutes.

Murder is murder, and I have no problem with many of the major felony laws. But there is a lot of room for discretionary enforcement, and I think it a cop-out to suggest that we need to follow all laws because it is our country.

The teacher yesterday asked our class of maybe 30 adults how many of us did not at least on occasion break at least some traffic laws (notably speeding). Only one person in the class indicated that she didn't. The teacher suggested that was about averaged having taught this class a hundred times or so. Of course, many of us drive by cops every day 5 miles or so over the speed limit, confident that if our car is nice enough, and we look respectable enough, we won't be pulled over.

I am suggesting that because of this discretion on the part of the cops and prosecutors, on who goes to jail and who doesn't, that their cutting corners to avoid having to generate sufficient probable cause for a warrant should not be condoned, but rather, given fairly strict scrutiny.
6.20.2007 7:45pm
Dave D. (mail):
....I too longed for a bright line in searches. But the 4th amendment and the myriad of case decisions have muddied the waters to the point we couldn't see a line if it was drawn. "unreasonable searches", "probable cause". Like jello, those terms move about. I used to think the cops were unaccountable, but after 32 years I've changed my mind. I was accountable for everything I did, and everything I didn't do, and to know the law and policy. About an hour of reading a day. Mostly B.S. stuff, but you couldn't sift through it without reading it all.
...I couldn't agree with you more about the Denver gun law application. In Ca,. brandishing is displaying a weapon in a rude and threatening manner. What you call the resisting arrest law we call obstructing and delaying a peace officer in the performance of his duty. Without the facts, I don't know how you could make that call but folks riding bicycles nekkid are probably doing it to provoke and defy the law. It would not surprise me that they sought to delay and obstruct the cops when stopped. Film it all and let the jury decide.
...As the lawyers say, every pancake has two sides. Few arrests are arbitrarily made. It pays the arresting officer to listen to a suspect, get his side in detail, and base the arrest, or the release, on what you hear and whether it fits the evidence and what others said. At the very least, you will have tied the Suspect to a story, his story, that the Atty's can fight over in court. Most lies are revealed in time.
...Every trade has it's boneheads and jerks. In my experience, police work attracts more than it's share because they're drawn to it's power and high profile operation. The 80/20 rule applies : 20 percent I wouldn't trust to watch my dog. Power corrupts everyone, and cops don't run the justice system, the justice system directs them. Thank God.
6.20.2007 8:58pm
Hattio (mail):
Dave D,
How do you mean you were accountable for everything you did? I'm a defense attorney, and I have yet to find officers who are even slightly accountable (by outside forces, some have their own sense of morality that holds them accountable).
As to your 80/20 ratio, I think you've got the numbers about right...just in the wrong order...unfortunately.
6.20.2007 9:38pm
Dave D. (mail):
Hattio,
...I normally don't talk to defense attorneys, but.....being retired, it doesn't matter anymore. The Department I was with has about 10,000 employees Statewide. I worked as an Officer 12 years and as a Field Sergeant for 20. As a Sgt. I reviewed every document my shift, or detail, produced. I approved their arrests and reports. We ( Field Sgt's ) do the internal investigations, as Internal Affairs is a small unit that co-ordinate punishments and paperwork.
...I was responsible and held accountable for the arrests I approved, my investigations and any documents I signed. " I didn't know that " was more harshly punished than " I did it". I'm sorry you think 80% of the cops are lying no-loads. Maybe in your area they are. I can only comment on what I saw.
...But I can give you an idea of what I saw. In an office north of San Francisco one of our dimmer bulbs arrested a drunk who was a fighter. When the officer regained control he put the handcuffed suspect in his unit and a citizen came over and gave the officer the suspects glasses which had fallen off in the scuffle. The officer, angry, immature, threw them down and ground them into the sidewalk. We fired him.
...I investigated an officer who phonied his daily log to include stops he never made. I audited his logs and documents for the previous 5 months and found several females who complained about his demeanor and his language. He claimed 'activity' that never happened, warnings he never gave, including claiming to have stopped his own vehicle for speeding and given the driver a warning. Aside : we required the officers to list the drivers license or vehicle license on all stops. The Dept. fired him. As I recall, he had 24 years on.
...A typicall punishment : first drunk driving incident..15 days w/o pay. Second time : Gone.
...Just a little refinement on the 80/20 rule. The top 20% are the 'Gold Plated Ones' who always do the best job they can and would come to work whether you paid them or not. The middle 60% I call 'The Great Unwashed'. If the leadership comes from the top, or the Golden ones, the great unwashed go towards the bright light and mostly follow along. But if you have natural leaders from the Dark Side 20%, The boys and girls in the middle go towards the dark stars and the Dept. goes to hell.
...If an officer is dishonest, or brutal, he needs to be fired pronto. No days-off penalty. And lying about little stuff means he lies about big stuff.
6.20.2007 11:08pm
Fub:
Dave D. wrote at 6.20.2007 10:08pm:
...If an officer is dishonest, or brutal, he needs to be fired pronto. No days-off penalty. And lying about little stuff means he lies about big stuff.
How about a criminal charge for that stuff? A civilian lying to a police officer (as in making a false police report), or striking a police officer, can expect to be prosecuted. So would a police officer be prosecuted for lying on his reports or unnecessarily striking a civilian?
6.21.2007 2:27am
XON:
Dave D. actually is a very good example of how the system gets to the point it does. I had my share of experience before law school and the Bar. The two cultures (Legal and Law Enforcement) are historically in a constant kabuki who's only persistent feature is that they are much farther apart than, perhaps, anybody really sits down and considers.

I have no doubt that Dave D. and his fellow 20% were 1) basically good people and as professional as any other professional; and 2) completely inured to the reality and perceptions of the impact of their use of their authority on people not part of the LE community.

It is one of the most basic subject in any police academy to be coached in giving testimony to judicial officers. Prosecutors question their police officers' positions and assertions at great peril to the effective operation of their offices. And at the most mundane, after a very short time (about 8 months, in my experience) most LE officers just don't worry about the downstream effects of their actions. (My personal opinion is that it would result in just too much cognitive dissonance to take, and that has become part of the overarching culture.)

I think Hattio and Fub get the best of the actual argument here, Dave D.'s articulate and honest post notwithstanding. The fundamentals of the system embraced the defence sparing no effort to discredit the government. Only ATRGeek alluded to the fact that, although it might make us feel subjectively better to ignore this, we have allowed the system to accept the state sparing no effort to discredit the suspected. This isn't how it's supposed to work.
6.21.2007 12:43pm
Dave D. (mail):
...Fub, you're right on about criminal prosecution. In the office I retired from I conducted an Adverse Action investigation that indicated some criminal wrongdoing.
It involved an officer who used an access key (given to him in trust years before) to make serreptitious telephone calls, long distance , at a Federal facility. We gave him 10 days off without pay but my Commander refused to forward the case to the District Atty. Complicating it, the Feds own their own line and it would be difficult or impossible to show a lose. We ordered no reembursment since they ( Forest Service ) couldn't provide us with a bill. Frustrating, but maybe my Commander was right. The crime may have been burglary, a violation of 459 P.C. I really doubt whether the D.A. would have prosecuted without a proveable loss, but we can't know because we didn't try.
...Xon, I don't know what police academy you attended, but I was in CTC ( cadet training class ) 1 of 1971, California Highway Patrol Academy. I was never "coached in giving testimony to judicial officers" except to be told to consider questions asked on the stand thoroughly before answering them, and to beware of answering complex questions which have many parts with a single word "yes" or "no" but to break down the question into it's parts and answer each separately. I consider my Academy training in courtroom procedure, including much more than testifying, as woefully inadequate. Since you only go through once, I have no idea what they teach now. We had more than 900 hours of instruction in 16 weeks, but courtroom training was , as I recall, one class.
....The second part of your posting pretty much describes the adversarial system. Of course police try to discredit suspects, but recording their own words and actions seems to me a legitimate function. How can you go wrong if you testify as to what you saw and heard ?
...The Justice system and it's adversarial element was designed and is maintained by the legal profession, not cops. I think police work is not a profession, as the law and medicine are. Professions all control the entry into their system and are self judging, as the bar associations admit or eject lawyers from their midst. Police operate within the laws crafted by the legal profession ( in the guise of legislators, lawyers being the most highly represented group ), raise the questions, decide the outcome ( judges ) and review the results. No cops in the chain except at the entry point.
..I think police work is a trade, not a profession, and consists of skills accrued over time through training and actual work. I don't want cops running the justice system. I want well trained professionals running it...lawyers, judges, law professors. Cops are the journeymen who work the field. They do what you can't do, use their skills to bring lawbreakers to justice, but they are not justice. Cops who think they can be the triers of fact or punishers have no place and should be replaced. It was my experience that most of the rogues who testilied were weeded out by the system over time. The practise of making cops record all stops, all enforcement contacts, onerous as it was to me, trips up liars and fabricators and provides the proof necessary for dismissal.
6.21.2007 2:22pm
Dave D. (mail):
...Xon, after re-reading my post I realized I did not address your concern that " (police) are completely inured to the reality and perceptions of the impact of their use of authority on people not part of the LE community ".
...Law enforcement is certainly insulated, by choice, from the average fellow. Our experiences, as well as shift work and the nature of the job, seem to compel this. But Xon, we just catch 'em. It the justice system that turns suspects into sausage ( or not ), out of sight of the public and the police that arrested them. Overwhelmingly, I never knew the disposition of cases I precipitated. That is your realm, not ours. I suspect it was ever thus.
6.21.2007 11:16pm
K Parker (mail):
Hmm, so how would Sir Robert Peel view all of this?

And Philistine follows up Jake thus:
What if what you have in your pocket is not illegal

To which I'd add, suppose it is illegal, but only immorally so? For example, you might be a resident of Chicago or DC, where citizens are by law deprived of effective means of self-defense.
6.23.2007 12:01am
Fred (mail):
I have often imagined scenarios in which I am approached by a police officer and asked for permission to have my person or vehicle searched. On an intellectual level I want to say 'No'. Not to spite the officer but because I think that rights not used become rights that are lost.

I don't have anything illegal in my car or on my person, at least that I know of. However I firmly believe in my constitutional rights.

On another level I realize that in a real life situation I would feel tremendous mental pressure to agree to the search. I would hope that I would have the courage of my convictions and hold fast.
6.27.2007 12:10am