N'" COURT "COITHOt" OVER POLICE?

What the courts offer to police is the opportunity, if they wish to take advantage

of it, tG~ek the state's capacity to punish. In effect, the courts say to the police

that if they wish to make use of that capacity, they must demonstrate to the

, courts that they have followed certain procedures in order to do so.... Only on

those occasions that the police wish to employ the state's capacity to punish do

courts and police have any relationship of any kind. Despite the enormous growth

in police law in'the past quarter century, the courts have no more "control" over

the police than local supermarkets have over the diets of those who shop there.. ",

Empirically, however, we know two major things about the terms ofthis rela­

tionship between the police, the law, and the courts. The first is that the felony ar­rest rate forpatrol officers is very, very, low even in areas in which felony offense

rates are very high. For example ... 40 percent of the 156 officers assigned to a

very high crime area in New York City did not make a single arrest during the en­

tire year under study.... The second empirical fact ... has to do with the frequency

with which police choose not arrest when they have every legal right and all the

necessary evidence to do so, or, alternatively, choose to make arrests when they

have no legal grounds to do so whatsoever Collectively, they constitute the

major empirical discovery of police research : the discovery of selective en­

forcement and the enormous influence on police discretion of such things as sus­

pect demeanor, complainantpreferences, and a host of other factors that have nothing to do with lithe law."

-CARL B. KLOCKARS, police expert (1991b, 532),

Police officers usually don't take advantage of the opportunity to bring cases to prosecutors, as discussed by Professor Klockars in the opening quotation. One year, half the officers assigned to a high-crime neighborhood in New

York City didn't make a single felony arrest; 68 percent made only three. Sociol­ogist Donald Black (1980) found officers usually don't arrest suspected violent felons even when they've got plenty of evidence. So police, the gatekeepers to the criminal justice system, usually don't open the gates to criminal prosecution. In­stead, they exercise their discretionary decision making against starting the for­mal criminal justice process. This shouldn't surprise you, and don't think it means police aren't doing their job. Remember, maintaining order and providing 24/7 services take up most of their time (Chapter 5).

It may not seem like it from what you hear, read in the news, and see on tele­vision, but contacts of any kind with the police are unusual, and contacts involv­ing criminal suspects are extremely rare (Figure 7.1). This is one of the findings in The Police-Public Contact Survey II (PPCSII) (BJS February 2001). In the PPC­SIT, the U.S. Department of Justice, Bureau of Justice Statistics (BJS), surveyed

222 Part 2 The Police

o w,., .,~s:~ "T All Male Female White Black Hispanic Other 16-17 18-19 20-24 25-29 30-34 35-39 40-44 45-49 over 50

Race

a sample of individuals over 16 in the National Crime Victim Survey (NCVS), ·1999 (Chapter 2). The sample represents fairly the gender, race, ethnicity, and age distribution among the 209,350,600 individuals over 16 in the United States.

Law Enforcement and the Constitution Several years ago, a Japanese police reporter took my criminal procedure class. He told me how amazed he was at one difference between policing in Japan and in the United States: '1n Japan, if I'm sitting on a park bench minding my own business, and a police officer comes up to me, and asks me to come with her, I have to jus­tify to her why I shouldn't do it. In your class, I've learned that in the same situa­tion, she has to justify why to me." What he was referring to is that under our

. constitutional system, police can't on a whim or a hunch (the law calls it "mere suspicion") interfere with our rights to come and go as we please and to be free from physical invasions of our bodies, our houses, and our "stuff" (Table 7.1). They have to back up their interferences with facts. We call this requirement the objec­tive basis for official searches, seizures, interrogation, and identification proce­dures. Of course, checking out suspicious people and circumstances; gathering evidence of crime; and apprehending suspects is very important business.

ld shau'"enjoy the rigI1t. .• . mst bitrC.~lid to .have

'eJ:!se. law wbiCh"shallm:irldgelhe " "tl:!e'Uriit«fStates;inO( "life, )U~~. <>r property,

J to.allY persoll:withJo jfs ~tion of the laws. ..

Age

.... FIGURE 7.1 Contacts between the Police and the Public (Per 1,000 People Ages 16 and Over) Source: Bureau of Justice Statistics,

Contacts between Police and the Public,

Findings from the 1999 Survey (Washington,

DC: Bureau of Justice Statistics, February

200lJ, p. 5, Figure 1.

objective basis government offi­cials have to back up with facts their encroachments on liberty and privacy

ff/) FindLaw.com: Each amendment is

reviewed in detail along with relevant

case law. To reach this site go to "Web

Links" on your Samaha CJ7 website:

http://cj.wadsworth.com/samaha_cj7e.

Chapter 7 Police and the Law 223

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to get and keep control of a suspect who they have probable cause to ar­rest. If these two Gang Unit officers have probable cause to arrest this sus­pect, then it looks like they're using

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The framers of our Bill of Rights, while protecting criminal suspects' rights, also left plenty of play in the joints for informal decision making by individual officers to enforce the criminal law. The framers were very clever: they didn't ban all government searches and seizures, only unreasonable ones; they didn't ban all confessions, only compelled ones. The significance of the many police cases that come to local courts, and the few that wind up in the U.S. Supreme Court, boils down to maintaining the balance between the need for enough government power to control crime against the liberty and privacy rights of individuals.

The main (but as youll soon learn, not the only) objective of searches and seizures, police interrogation, and other activities like identification procedures is to find and collect evidence. It's no exaggeration to say that information drives and controls the formal criminal justice process. It's only natural that the police would like to control the discovery and the use of this information. Suspects and defendants, of course, would like to manage if, when, what, and how the police get the information. And innocent people, understandably, don't want to be ar­rested, searched, put in jail, interrogated, or stand in lineups unless the police can objectively justify their right to interfere with their liberty, privacy, and property.

Let's look at police actions that call for balancing government power to con­trol crime and individuals' right to be let alone by the government. These include making arrests and other seizures of individuals; conducting searches of per­sons, houses, and "stuff"; interrogating suspects; and managing procedures re­garding eyewitnesses' identification of strangers. Later in the chapter, we'll examine the police use of force, racial profiling, and police misconduct.

224 Part 2 The Police

'est .en police officers arrest you, it's a Fourth Amendment seizure, so it has to be onable (Table 7.1). What's a reasonable arrest? The answer boils down to e elements:

1. Probable cause. Officers must have an objective basis for the arrest. i. Reasonable force. Officers can't use excessive force to make an arrest.

(See the "Police Use of Force" section.) '3. Warrant. Officers have to get a warrant before they enter a house to ar­

rest someone.

e Definition ofArrest Police actions can affect our right to come and go as we please in several ways that don't amount to arrest. Arrest means to take you into custody without your consent. So an officer who comes up to you and asks, "Who are you and what are you doing here?" hasn't arrested you. But the officer who comes up to you and says, "You're under arrest," takes you to the station, books you, takes your "mug shot," and locks you up overnight has arrested you. In the first example, you're free to decline to answer-and even to walk away. (You may feel the pressure of a moral and civic duty to stay and answer, but you're not legally bound to.) In the second example, the Fourth Amendment ban on unreasonable seizures protects

. you, meaning the officer has to back up her actions with probable cause and use only reasonable force in taking you into custody.

Whether an arrest is reasonable comes down to two elements: the objective basis (probable cause) and the manner of the arrest (the use of arrest warrants and/or reasonable force). Let's look at the elements of probable cause and the warrant requirement (we'll discuss the use of force later on in the chapter).

. Probable Cause The Fourth Amendment says arrests are unreasonable unless officers back them up with probable cause. Probable cause to arrest means there are enough facts for a reasonable officer in light of her expertise to believe the person she is arresting has committed, is committing, or is about to commit a crime. What kind of facts are needed to make the cause for the arrest "prob­able"? It definitely means officers need more than a hunch, and it definitely doesn't mean they need proof beyond a reasonable doubt (Chapter 10). Practi­cally speaking, it means officers have to have enough facts that would justify de­taining a suspect long enough to give prosecutors time to decide if there's enough evidence to charge. (The leading U.S. Supreme Court case is old but still cited frequently. See an excerpt in the In Focus box "Was There Probable Cause to Arrest?")

Arrest Warrants The vast majority of arrests are reasonable without warrants. There's one big exception: entering homes to arrest suspects. Why? According to the U.S. Supreme Court, entering homes is the "chief evil" the Fourth Amend­ment protects against, and "a principal protection against unnecessary intru­sions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for pur­poses of search or arrest (Welsh v. Wisconsin 1980, 748).

In one of the leading cases, Riddick v. N.¥. (1980), officers had probable cause to believe Obie Riddick had committed two armed robberies. They went to the Queens house where he was living and knocked on the door. When his young son opened the door, they saw Riddick sitting on a bed, went in, and arrested him. It was an unreasonable arrest ruled the U.S. Supreme Court. Why? Because the of­ficers didn't have an arrest warrant. According to the majority of the Court:

arrest taking an individual into custody without her consent

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When did the police arrest Royer?

Click on this Decision Point at

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probable cause to arrest facts and circumstances that would lead a police officer in the light of her training and experience to believe that a crime has been, is being, or is about to be committed and that the person suspected has commit­ted it

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exploration of probable cause.

Chapter 7 Police and the Law 225

Was There Probable Cause to Arrest?

- ---­

FACTS

Marsh, a federal narcotics agent with 29 years' experi­ence, was stationed at Denver. Hereford, an informant for about six months, was paid for giving information to Marsh about illegal drug trafficking. The information

was always accurate and reliable. Hereford told Marsh that James Draper "was ped­dling narcotics to several addicts." Four days later, on September 7, Hereford told Marsh "that Draper had gone to Chicago the day before (September 6) by train; that he was going to bring back 3 ounces of heroin; and that he'd return to Denver by train either on the morning of the 8th or 9th of Septem­ber. Hereford described Draper to Marsh this way: He's a Black man with a light brown com­plexion, 27 years old, and 5 feet 8 inches tall; he

weighs about 160 pounds; hell be wearing a light colored raincoat, brown slacks, and black shoes; hell be carrying "a tan zipper bag"; and he habitually "walks real fast."

On the moming of September 8. Marsh and a Denver police officer went to the Denver Union Station and saw a person who matched the exact description Hereford had given Marsh. Marsh and the police officer, overtook, stopped, and arrested him.

OPINION

The crucial question for us is whether the facts and cir­cumstances gave Marsh "probable cause" within the meaning of the Fourth Amendment to believe Draper

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226 Part 2 The Police

The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home-a zone that finds its roots in clear and specific consti­tutional terms: "The right of the people to be secure in their ... houses ... shall not be vio­lated." That language unequivocally establishes the proposition that "at the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be ",i

free from unreasonable governmental intrusion." ... The Fourth Amendment has drawn a .~fum line at the entrance to the house. Absent [an emergency). that threshold may not rea­sonably be crossed without a warrant. (589-590)

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The right against unreasonable searches is ancient. In 57 B.C., Cicero spoke of "'R

citizens' homes as "sacred." Under Byzantine Emperor Justinian's Code of A.D.

533, a "freeman could not be summoned from his house" because it's "everyone's safest place, his refuge, and his shelter." In 1505, John Fineux, chief justice of the English Court of King's, held lithe house of a man is for him his castle and his de­fense" (Cuddihy 1990, xc-xcvi).

But the practice of government searches is as much a part of history as the lofty rhetoric claiming the right against unreasonable searches. Most of the early controversy over searches in England was about religion and politics. When Catholics were in power, they ransacked the houses of Protestants to find proof

had committed or was committing a violation of the nar­cotics laws....

"In dealing with probable cause ... as the very name implies, we deal with probabilities. These are not techni­cal; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." ...We believe that, under the facts and circumstances here, Marsh had probable cause to believe that Draper was committing a violation of the laws of the United States relating to narcotic drugs at the time he arrested him.

DISSEIIT

... The officers had no evidence-apart from the mere word of an informer-that Draper was committing a crime. The fact that Draper walked fast and carried a tan zipper bag was not evidence of any crime. The officers knew nothing except what they had been told by the in­former. If they went to a magistrate to get a warrant of arrest and relied solely on the report of the informer; it is not conceivable to me that one would be granted. For they could not present to the magistrate any of the facts which the informer may have had. They could swear only to the fact that the informer had made the accusation. They could swear to no evidence that lay in their own knowledge. They could present, on information and be­lief, no facts which the informer disclosed. No magistrate could issue a warrant on the mere word of an officer, without more....

Source: Draper v. U.S., 358 U.S. 307 (1959).

Was There Probable Cause to Arrest? FACTS had committed or was committing a violation of the nar­

cotics laws....Marsh, a federal narcotics agent with 29 years' experi­

"In dealing with probable cause ... as the very name ence, was stationed at Denver. Hereford, an infonnant

implies, we deal with probabilities. These are not techni­for about six months, was paid for giving infonnation to

cal; they are the factual and practical considerations ofMarsh about illegal drug trafficking. The infonnation

everyday life on which reasonable and prudent men, not was always accurate and reliable. Hereford

legal technicians, act," , .. We believe that, under the facts told Marsh that James Draper "was ped-

and circumstances here, Marsh had probable cause todling narcotics to several addicts." Four

believe that Draper was committing a violation of thedays later, on September 7, Hereford told

laws of the United States relating to narcotic drugs at theMarsh "that Draper had gone to Chicago the

time he arrested him.day before (September 6) by train; that he

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was going to bring back 3 ounces of heroin; and that he'd return to Denver by train either DISSENT on the morning of the 8th or 9th of Septem­

... The officers had no evidence-apart from the mereber. Hereford described Draper to Marsh this

word of an infonner-that Draper was committing away: He's a Black man with a light brown com­

crime. The fact that Draper walked fast and carried a tanplexion, 27 years old, and 5 feet 8 inches tall; he

zipper bag was not evidence of any crime. The officersweighs about 160 pounds; hell be wearing a light colored

knew nothing except what they had been told by the in­raincoat, brown slacks, and black shoes; hell be carrying

fonner. If they went to a magistrate to get a warrant of"a tan zipper bag"; and he habitually "walks real fast,"

arrest and relied solely on the report of the infonner, it isOn the morning of September 8, Marsh and a Denver , ' ,:<.~.not conceivable to me that one would be granted. For

police officer went to the Denver Union Station and saw they could not present to the magistrate any of the facts

a person who matched the exact description Hereford ·';.f:which the infonner may have had. They could swear only

had given Marsh. Marsh and the police officer, overtook, to the fact that the infonner had made the accusation.

stopped, and arrested him. They could swear to no evidence that lay in their own knowledge. They could present, on information and be­

OPlIIIIII lief, no facts which the infonner disclosed. No magistrate could issue a warrant on the mere word of an officer,

The crucial question for us is whether the facts and cir­without more....

cumstances gave Marsh "probable cause" within the meaning of the Fourth Amendment to believe Draper Source: Draperv. u.s., 358 U.S. 307 (1959).

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226 Part 2 The Police

The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home-a zone that finds its roots in clear and specific consti­tutional tenns: "The right of the people to be secure in their ... houses ... shall not be vio­lated." That language unequivocally establishes the proposition that "at the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." ... The Fourth Amendment has drawn a firm line at the entrance to the house. Absent [an emergency], that threshold may not rea­sonably be crossed without a warrant. (589-590)

Searches The right against unreasonable searches is ancient. In 57 B.C., Cicero spoke of citizens' homes as "sacred." Under Byzantine Emperor Justinian's Code of A.D.

533, a "freeman could not be summoned from his house" because it's "everyone's safest place, his refuge, and his shelter." In 1505, John Fineux, chief justice of the English Court of King's, held "the house of a man is for him his castle and his de­fense" (Cuddihy 1990, xc-xcvi).

But the practice of government searches is as much a part of history as the lofty rhetoric claiming the right against unreasonable searches. Most of the early controversy over searches in England was about religion and politics. When Catholics were in power, they ransacked the houses of Protestants to find proof

of their blasphemy; when Protestants were in power, they did the same to Catholics' houses. When subjects criticized the kings and queens, their ministers ransacked the subjects' houses looking for "seditious libels." (Seditious libels are written criticisms of the government.) No one cared much about the rights of or­dinary criminals-the subject of our book; the power to search them and their "houses, papers, and effects" (to use the words of the Fourth Amendment) was pretty much unlimited.

In the 1700s, the numbers of seditious libels increased because of the low re­spect the English had for their imported German kings (the four Georges). The kings granted general warrants (blank checks good for the life of the king issued to officials) authorizing their officers to break into shops and homes to look for seditious libels. General warrants also became a weapon in the war against smuggling a growing list of taxable goods-most of them very popular, like salt, beer, and cider-into the American colonies. The use of general warrants pro­voked William Pitt in 1777 to speak the most famous words ever uttered against the power of government to search the houses of its people:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; but the king of England may not enter; all his force dare not cross the threshold of the ruined tenement without a lawfull warrant. (Hall 1993, 4)

In the British American colonies, the great colonial trial lawyer James Otis ar­gued a famous general warrant case in Boston in 1760. He claimed the general warrants were illegal; only searches with specific dates, naming the places or persons to be searched and seized, and based on probable cause were lawful where free people lived. The future president John Adams was at the trial. Many years later Adams recalled how moved he was by Otis's words: "There was the Child Independence born" (Smith 1962, 56). Hostility to general warrants led to the adoption of the Fourth Amendment. But remember the opposition to these warrants was about their use in religion, politics, and taxation-not to what we call ordinary crime.

The Fourth Amendment "unreasonable searches" clause limits the power of law enforcement to get information to control crime, but it still leaves the gov­ernment with plenty of power. According to former prosecutor John Wesley Hall, Jr. (1993):

The raw power held by a police officer conducting a search is enormous. An officer wield­ing a search warrant has the authority of the law to forcibly enter one's home and search for evidence. The officer can enter at night and wake you from your sleep, roust you from bed, rummage in your drawers and papers and upend your entire home.... The power of an officer conducting a stop or warrantless search is also quite intense. Nothing can be more intimidating or frightening to a citizen than being stopped by the police and being asked or told to submit to a search. (ix)

The Definition of Search Wherever people have a reasonable expectation of privacy, government intru­sions are searches. Remember, the Fourth Amendment only bans unreasonable searches. What makes up a reasonable expectation of privacy is left to the courts to decide on a case-by-case basis. In Katz v. U.S. (1967), FBI agents bugged a public telephone booth to listen to bookie Charles Katz giving odds on college football games in his gambling operation. According to the U.S. Supreme Court, "One who occupies a public telephone booth, shuts the door, and pays the toll that permits him to place a call is entitled to assume that his conversation is not being intercepted."

This probably sounds to you like a boost for privacy (we sure thought so way back then), but the U.S. Supreme Court quickly let us know that reasonable ex­pectation of privacy is very narrow. According to the Court, none of the following

Chapter 7 Police and the Law 227

.... Homes are special places, and the

U.S. Supreme Court recognizes the high value we place on being safe and

secure in our homes. So, warrants are

required before officers can search

them-but not always. These officers

are searching a public housing project

apartment without warrants. On March

29, 2004, the U.S. Court of Appeals

for the 5th Circuit approved searches

of public housing units like this one

without warrants in Texas, Lousiana,

and Mississippi.

Searches of Homes Searches of houses are reasonable only if officers get war­rants and, in most cases, only if they knock, announce their presence, and give occupants a chance to get to the door before they go in. They don't have to wait long because suspects might run out the back door, grab a weapon, and/or de­stroy evidence or contraband. So, according to the knock-and-announce role, knock-and-announce nde a a search is reasonable if officers get a warrant; knock on the door saying, "Open search of a home is reasonable if up, police"; wait 10 seconds; knock down the door; enter; and arrest the suspect officers get a warrant; knock on the

door saying, "Open up, police";(Wilson v. Arkansas 1995). wait 10 seconds; knock down theOfficers don't always have to follow the knock-and-announce rule. According door; enter; and arrest the suspectto the U.S. Supreme Court: "The Fourth Amendment's flexible requirement of

reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests." There are three exceptions to the rule:

1. When there's a threat of violence 2. When officers are in hot pursuit of a fleeing suspected felon 3. When there's a threat that occupants will destroy evidence (Wilson v.

Arkansas 1995)

Searches at the Tune of Arrest Once an officer lawfully arrests a suspect, the officer at the time of (technically called "incident to") the arrest can thoroughly search the suspect and the area under her control without either a search war­rant or probable cause (Chimel v. California 1969). The search incident to ar- search incident to arrest nde an

rest role raises three questions: First, what's the purpose for setting aside the officer who lawfully arrests a sus­warrant and probable cause requirements? Three purposes: to protect officers pect can search the suspect and the

from suspects reaching for a weapon; to preserve evidence or contraband that area under her control without ei­

suspects might destroy;. and to prevent suspects from trying to escape. Second, . ther a search warrant or probable

what time period does "incident to" cover? It includes the time leading up to the cause

arrest and enough time after the search to give officers time to get control of the situation. Third, what area does "under the suspect's control" include? It in­cludes the suspect's body and the "grabbable area" around her; in other words, it is as far as she can reach for a weapon, evidence, or some means of escape.

Much more extensive searches of vehicles at the time drivers and passengers are arrested are reasonable. In the very important case New York v. Belton (1981), Trooper Douglas Nicot stopped Roger Belton and three other college students for

Chapter 7 Police and the Law 229

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consent search rule individuals can give up their right against un­reasonable searches, if they do so

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speeding on the New York Thruway. When he approached the car, he smelled

.

marijuana. He arrested all four, ordered them out of the car, and split them up' so they couldn't get near each. Then, he searched the entire passenger compart- . ment and a black leather jacket in the back seat. To search the jacket he had to . unzip the pockets; he found cocaine in one of the pockets.

Belton argued the search went beyond the "grabbable area." The U.S. Supreme Court disagreed:

We hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. It follows from that conclusion that the police may also examine the contents of any containers found within the passenger compartment.

Consent Searches Officers don't need either probable cause or warrants if the person they search consents to the search. According to the consent search me, you can give up your right against unreasonable searches-but only if you do it voluntarily. In the leading U.S. Supreme Court consent search case, Schneckloth v. Bustamonte (1973), police officers didn't have either a warrant or probable cause to search a car, so they asked if it was "okay to look in the trunk of the car." "Sure, go ahead," the driver said.

The Court ruled the consent was voluntary, so the Fourth Amendment war­rant and probable cause requirements didn't kick in. The dissent argued consent searches should only be legal if officers warn people they have a right to say no to the search (like the Miranda warnings discussed later on). Why? Because or­dinary people see requests by police officers as polite commands backed up by the power to use force.

Stops and Frisks Stopping suspicious persons and demanding to know whom they are and why they're out and about is an old practice. Ancient statutes and court decisions em­powered English constables to detain "suspicious nightwalkers" and hold them until morning to investigate their suspicious behavior. You've already learned about this old practice in its modern form-the proactive police strategy of field interrogation (Chapter 6). Fourth Amendment stops are briefer detentions than arrests, and they take place in public (Table 7.2). (See the In Focus box "Do You Have to Identify Yourself to Police Officers?")

Fourth Amendment frisks consist of outer clothing pat downs for weapons and are less invasive than full-body searches (Table 7.3).

... TABLE 7.2 Comparison between Stops and Arrests

... TABLE 7.3 Comparison between Frisks and Full Searches

'Do You Have to Identify Yourself to Police Officers?

The sheriff's department in Hwnboldt County, Nevada, received an afternoon telephone call reporting an assault. The caller reported seeing a man assault a woman in a red and silver GMC truck on Grass Valley Road. Deputy Sheriff Lee Dove was dispatched to investigate. When the officer arrived at the scene, he found the truck parked on the side of the road. A man was standing by the truck, and a young woman was sitting inside it. The officer observed skid marks in the gravel behind the vehicle, leading him to believe it had come to a sudden stop.

The officer approached the man and explained that he was investigating a report of a fight. The man appeared to be intoxicated. The officer asked him if he had "any identification on [him]:' which we understand as a re­quest to produce a driver's license or some other form of written identification. The man refused and asked why the officer wanted to see identification. The officer re­sponded that he was conducting an investigation and needed to see some identification. The unidentified man became agitated and insisted he had done nothing wrong. The officer explained that he wanted to find out who the man was and what he was doing there. After continued refusals to comply with the officer's request for identification, the man began to taunt the officer by placing his hands behind his back and telling the officer to arrest him and take him to jail. This routine kept up for several minutes: the officer asked for identification 11 times and was refused each time. After warning the man that he would be arrested if he continued to refuse to comply, the officer placed him under arrest.

The man turned out to be Larry Dudley Hibel. He was charged with, convicted [of], and fined $250 for "willfully resisting, delaying, or obstructing a public officer in dis­charging or attempting to discharge any legal duty of his office." The "legal duty" in question is Nevada's "stop and identify" statute (NRS § 199.280 (2003» which defines the right and duties of police officers when they make in­vestigative stops. (Twenty states have similar statutes.) The statute provides:

1. Any peace officer may detain any person whom the officer encounters under circumstances which rea­sonably indicate that the person has committed, is committing or is about to commit a crime.

3. The officer may detain the person pursuant to this section only to ascer­tain his identity and the suspicious cir­cumstances surrounding his presence abroad. Any person so detained shall identify himself, but may not be com­pelled to answer any other inquiry of any peace officer."

OPIIIIII

Terry v. Ohio ... permits a State to require a suspect to disclose his name in the course of a Terry stop.... The [Nevada "stop and identify" statute] requires only that a suspect disclose his name. It apparently does not require him to produce a driver's license or any other document. If he chooses either to state his name or communicate it to the officer by other means, the statute is satisfied and no violation occurs.... The stop, the request, and the State's requirement of a response did not contravene the guarantees of the Fourth Amendment.

DISSEIIT

"... An officer may ask [a person stopped on reasonable suspicion] ... a moderate nwnber of questions to deter­mine his identity and to try to obtain information con­firming or dispelling the officer's suspicions. But the detainee is not obliged to respond." A name itself-even if it is not "Killer Bill" or "Rough 'em up Harry"-will sometimes provide the police with "a link in the chain of evidence needed to convict the individual of a separate offense."

Source: Hibel v. Sixth Judicial District Court of Nevada, 124 S.Ct. 2451 (2004).

Constitutionally, stops are Fourth Amendment seizures and frisks are Fourth Amendment searches (Terry v. Ohio 1968). Stops and frisks that begin and end on the street are a lot more frequent than arrests and full searches, which usually end up with suspects at the police station (Figure 7.3). For example, the New York City Police Department recorded 175,000 stops between January 1998 and March 1999; only 19,000 of these stops led to arrests (Spitzer 1999,112).

The objective basis for backing up stops and frisks is less than probable cause; it's called reasonable suspicion. Reasonable suspicion to stop consists of facts and circumstances that would lead a reasonable officer in the light of her train­ing and experience to suspect that a crime might be afoot. Compare this defini­tion with the one for "probable cause to arrest," which requires enough facts and circumstances to believe that a crime is afoot (Table 7.4). "Suspect" isn't as strong a conclusion as "belief"; and "might" isn't as certain as "is."

reasonable suspicion facts and circumstances that would lead an officer (in light of her training and experience) to suspect that a crime might be afoot

Chapter 7 Police and the Law 231

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Reasonable suspicion to frisk consists of facts and circumstances that would lead an officer to suspect that a person lawfully stopped might be armed (Terry v. Ohio 1968).

The U.S. Supreme Court hears more Fourth Amendment search and seizure cases than the other police practice cases you'llieam about in the next two sec­tions, interrogation and identification procedures. The Court's term ending in July 2004 included several important other search and seizure cases summarized in the paragraphs that follow.

1. "Knock and Announce" Rule: U.S. v. Banks, 124 S.Ct. 521 (2003) When federal and local law enforcement officers went to Lashawn Lowell Banks's

232 Part 2 The Police

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apartment to execute a warrant to search for cocaine, they called out "police search warrant" and rapped on the front door hard enough to be heard by offi­cers at the back door, waited for 15 to 20 seconds with no response, and then broke open the door. Banks was in the shower and testified that he heard noth­ing until the crash of the door. The District Court denied his motion to suppress the drugs and weapons found during the search, rejecting his argument that the officers waited an unreasonably short time before forcing entry, in violation of the Fourth Amendment. Banks pleaded guilty but reserved his right to challenge the search on appeal. In reversing and ordering the evidence suppressed, the Ninth Circuit found, using a four-part scheme for vetting knock-and-announce entries, that the instant entry had no exigent circumstances, making forced entry by destruction of property permissible only if there was an explicit refusal of admittance or a time lapse greater than the one here.

The U.S. Supreme Court (9-0) reversed. The Court held that the officers' 15-to-20-second wait before forcible entry satisfied the Fourth Amendment. Ac­cording to the Court, the standards bearing on whether officers can legitimately enter after knocking are the same as those for requiring or dispensing with knock and announce altogether. This Court has fleshed out the notion of reason­able execution on a case-by-case basis but has pointed out factual considerations of unusual, although not dispositive, significance. The obligation to knock and announce before entering gives way when officers have reasonable grounds to expect futility or to suspect that an exigency, such as evidence destruction, will arise instantly upon knocking. Since most people keep their doors locked, a no­knock entry will normally do some damage, a fact too common to require a heightened justification when a reasonable suspicion of exigency already justifies an unwarned entry.

This case turns on the exigency revealed by the circumstances known to the officers after they knocked and announced, which the government contends was the risk of losing easily disposable evidence. After 15 to 20 seconds without a re­sponse, officers could fairly have suspected that Banks would flush away the co­caine if they remained reticent. Each of Banks's counterarguments-he was in the shower and didn't hear the officers, and that it might have taken him longer than 20 seconds to reach the door-rests on a mistake about the relevant en­quiry. As to the first argument, the facts known to the police are what count in judging a reasonable waiting time, and there's no indication that they knew Banks was in the shower and thus unaware of an impending search. As to the second, the crucial fact isn't the time it would take Banks to reach the door but the time it would take him to destroy the cocaine. It's not unreasonable to think that someone could get in a position to destroy the drugs within 15 to 20 sec­onds. Once the exigency had matured, the officers weren't bound to learn any­thing more or wait any longer before entering, even though the entry entailed some harm to the building.

2. Car Search: Thornton v. U.S., 124 S.Ct. 2127 (2004) Before Officer Nichols could pull over Marcus Thornton, he parked and got out of his car. Nichols then parked, accosted Thornton, and arrested him after finding drugs in his pocket.

Chapter 7 Police and the Law 233

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Incident to the arrest, Nichols searched Thornton's car and found a handgun under the driver's seat. Thornton was charged with federal drug and firearms vi­olations. In denying his motion to suppress the firearm as the fruit of an uncon­stitutional search, the District Court found, that the automobile search was valid under New York v. Belton, in which this Court held that, when a police officer makes a lawful custodial arrest of an automobile's occupant, the Fourth Amend­ment allows the officer to search the vehicle's passenger compartment as a con­temporaneous incident of arrest. Thornton appealed his conviction, arguing that Belton was limited to situations where the officer initiated contact with an ar­restee while he was still in the car. The Fourth Circuit affirmed.

The U.S. Supreme Court (7-2) affirmed. The Court held that Belton governs even when an officer doesn't make contact until the person arrested has left the vehicle. In Belton, the Court placed no reliance on the fact that the officer or­dered the occupants out of the vehicle, or initiated contact with them while they remained within it. And here, there's simply no basis to conclude that the span of the area generally within the arrestee's immediate control is determined by whether the arrestee exited the vehicle at the officer's direction, or whether the officer initiated contact with him while he was in the car. In all relevant aspects, the arrest of a suspect who is next to a vehicle presents identical concerns re­garding officer safety and evidence destruction as one who is inside. Under peti­tioner's proposed "contact initiation" rule, officers who decide that it may be safer and more effective to conceal their presence until a suspect has left his car would be unable to search the passenger compartment in the event of a custodial arrest, potentially compromising their safety and placing incriminating evidence at risk of concealment or destruction. The Fourth Amendment doesn't require such a gamble. Belton allows police to search a car's passenger compartment in­cident to a lawful arrest of both "occupants" and "recent occupants." While an arrestee's status as a "recent occupant" may tum on his temporal or spatial rela­tionship to the car at the time of the arrest and search, it certainly doesn't turn on whether he was inside or outside the car when the officer first initiated con­tact with him. Although not all contraband in the passenger compartment is likely to be accessible to a "recent occupant," the need for a clear rule, readily understood by police and not depending on differing estimates of what items were or were not within an arrestee's reach at any particular moment, justifies the sort of generalization which Belton enunciated. Under Thornton's rule, an of­ficer would have to determine whether he actually confronted or signaled con­frontation with the suspect while he was in his car, or whether the suspect exited the car unaware of, and for reasons unrelated to, the officer's presence. Such a rule would be inherently subjective and highly fact specific, and would require precisely the sort of ad hoc determinations on the part of officers in the field and reviewing courts that Belton sought to avoid.

3. Border Searches: U.S. v. Flores-Montano, 124 S.Ct. 1582 (2004) At the in­ternational border in southern California, customs officials seized 37 kilograms of marijuana from Manuel Flores-Montano's gas tank by removing and disas­sembling the tank. After respondent was indicted on federal drug charges, he moved to suppress the drugs recovered from the gas tank, relying on a Ninth Cir­cuit panel decision holding that a gas tank's removal requires reasonable suspi­cion under the Fourth Amendment. The District Court granted the motion, and the Ninth Circuit summarily affirmed.

The U.S. Supreme Court (9-0) reversed. The Court held that the search didn't require reasonable suspicion. In the decision relied on below, the Ninth Circuit panel seized on language from U.S. v. Montoya de Hernandez, that used "rou­tine" as a descriptive term in discussing border searches. The panel took "rou­tine," fashioned a new balancing test, and extended it to vehicle searches. But the reasons that might support a suspicion requirement in the case of highly in­

234 Part 2 The Police

trUsive searches of persons simply don't carry over to vehicles. Complex bal­ancing tests to determine what's a "routine" vehicle search, as opposed to a more "intrusive" search of a person, have no place in border searches of vehi­cles. The government's interest in preventing the entry of unwanted persons and effects is at its zenith at the international border. Congress has always granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country. Flores-Montano's assertion that he has a privacy interest in his fuel tank, and that the suspicionless disassembly of his tank is an invasion of his privacy, is re­jected, as the privacy expectation is less at the border than it is in the interior, and this Court has long recognized that automobiles seeking entry into this country may be searched. And while the Fourth Amendment "protects property as well as privacy," the interference with a motorist's possessory interest in his gas tank is justified by the government's paramount interest in protecting the border. Thus, the government's authority to conduct suspicionless inspections at the border includes the authority to remove, disassemble, and reassemble a vehicle's fuel tank.

4. Roadblock: minois v. Lidster, 124 S.Ct. 885 (2004) Police set up a highway checkpoint to obtain information from motorists about a hit-and-run accident occurring about one week earlier at the same location and time of night. Officers stopped each vehicle for 10 to 15 seconds, asked the occupants whether they had seen anything happen there the previous weekend, and handed each driver a flyer describing and requesting information about the accident. As Robert Lid­ster approached, his minivan swerved, nearly hitting an officer. The officer smelled alcohol on Lidster's breath. Another officer administered a sobriety test and then arrested Lidster. He was convicted in illinois state court of driving under the hfluence of alcohol. He challenged his arrest and conviction on the ground that the government obtained evidence through use of a checkpoint stop that violated the Fourth Amendment. The trial court rejected that challenge, but the state appellate court reversed. The State Supreme Court agreed, holding that, in light of Indianapolis v. Edmond, the stop was unconstitutional.

The U.S. Supreme Court reversed. The Court held that the checkpoint stop didn't violate the Fourth Amendment. In Edmond, this Court held that, absent special circumstances, the Fourth Amendment forbids police to make stops with­out individualized suspicion at a checkpoint set up primarily for general "crime control" purposes. Specifically, the checkpoint in Edmond was designed to ferret out drug crimes committed by the motorists themselves. Here, the stop's primary law enforcement purpose was not to determine whether a vehicle's occupants were committing a crime, but to ask the occupants, as members of the public, for help in providing information about a crime in all likelihood committed by others. Edmond's language, as well as its context, makes clear that an information­seeking stop's constitutionality was not then before this Court.

The checkpoint stop was constitutional. In judging its reasonableness, this Court looks to "the gravity of the public concerns served by the seizure, the de­gree to which the seizure advances the public interest, and the severity of the in­terference with individual liberty." The relevant public concern was grave, as the police were investigating a crime that had resulted in a human death, and the stop advanced this concern to a significant degree given its timing and location. Most importantly, the stops interfered only minimally with liberty of the sort the Fourth Amendment seeks to protect. Viewed objectively, each stop required only a brief wait in line and contact with police for only a few seconds. Viewed sub­jectively, the systematic contact provided little reason for anxiety or alarm, and there is no allegation that the police acted in a discriminatory or otherwise un­lawful manner.

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borders?

Click on this Decision Point at

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cj7e to explore the issue.

Chapter 7 Police and the Law 235