“You might beat the rap, but you can’t beat the ride.”

constitution-preambleIf we want to protect our honest law enforcement officers from unjustified acts of aggression, if we want to protect our fellow citizens from unlawful government intrusion and excessive force, if we want to actually achieve “law and order” rather than use it as a political catch phrase, we must resurrect our Fourth Amendment. Without it, all of our rights and protections against unlawful government intrusion and excessive force will be limited only to the amount of attention you receive from the Government.

In 1789, James Madison introduced the Fourth Amendment of the United States Constitution to Congress in order to establish an unequivocal legal protection for citizens against the practice of unreasonable searches and seizures by our government. The practice of unlawful government intrusion and excessive force was a fundamental injustice that stoked the flames of revolution against the tyrannical Crown. As such, the Fourth Amendment was a corner stone in building the United States of America.

Today, our Fourth Amendment theoretically prohibits the Government from searching your home, your vehicle, your person, and now, your cell phone based merely on a hunch. The Government can ask for your permission to search, but you must consent to that search. Denying that request is your right, not a provocation.

I once heard this example at a legal seminar:

 

You get pulled over for speeding. The officer walks up to the window and says:

Officer: “You don’t have any dead people or cocaine in the car do you?”

You:    “No officer, I don’t.”

Officer: “Then you wouldn’t mind me searching your vehicle.”

You:    “I do mind, sir. If you’d like to search my vehicle you can get a search warrant. If not, I’d like to be on my way now.”

Most people, having neither cadavers nor contraband in their vehicle, will assume there is no risk in allowing the officer to search. It’s a trick that officers use to disarm your mental faculties.

On the other hand, if you get pulled over for speeding and you do have a dead body in the backseat a small bag labeled “cocaine” in your lap it might go more like this:

Officer: “I see a dead person and cocaine in your car. Please step out of the  vehicle.”

You:    “I am slowly stepping out of my vehicle and I want to contact my lawyer.”

Here is a more realistic situation:

You’re driving down the highway and you get pulled over for speeding. You were doing 73 in a 70. The officer mentions that “you don’t look like you’re from around here.” You make some remark about just passing through and he didn’t appreciate the tone of your voice.

You see him make an adjustment to his equipment (switching off the audio recording device). He then smiles and tells you that he really just pulled you over because your car looked suspicious. He readjusts his equipment and starts talking like a peace officer again. Without any suspicion of some other crime the officer asks you to step out of the car while he searches it. Maybe you voice your objection to the search. If not, you probably just consented it the search.

During the search he finds your spouse’s Adderall prescription. Your spouse isn’t there to explain. Now, you’re going to jail for possession of a controlled substance.

Maybe he really doesn’t like you so he gets a little rough when he handcuffs you. You twist away from him to make the handcuffs more comfortable against your nearly broken wrists. Now you’re also being charged with resisting arrest.

Then, he clamps the handcuffs harder and you flinch in pain. When you flinch the back of your head hits his chin. Now you’re facing charges of assaulting a police officer.

This is illegal, right?!?!? Well, maybe. You might have been speeding. So the initial traffic stop might have been legally justified. Either way, it takes a good lawyer to analyze almost every moment and every word of that police encounter to find out the best way to fight it. As criminal defense lawyers we see this same situation all the time. Ask any criminal defense lawyer you know about this example and they’ll have a story for you. Some officers have the best intentions. Others are just bad cops. Unfortunately these interactions seem to be the standard, not the exception, and it is unacceptable.

You’d be right to question what the consequences are for a violation of this fundamental Constitutional right. Well, in theory, when the Government violates the Fourth Amendment, the evidence found during an illegal search or seizure should be excluded from that subsequent criminal proceeding. This is known as the “Exclusionary Rule.” Basically, the Exclusionary Rules serves as the ONLY deterrence against Governmental abuse of the Fourth Amendment.

Here is an example, using the same fact pattern from above, of how that plays out in real life:

  • Get arrested;
  • find enough money to afford a good lawyer;
  • find enough money to pay bail (or just sit in jail for weeks or months);
  • hope that your lawyer files a Motion to Suppress
  • hope the Court grants a hearing on the Motion to Suppress
  • hope that during the hearing on your motion to suppress you are lucky enough to have video or audio footage of what really happened and/or the officer is totally honest about what happened; and,
  • pray that after hearing all of this, the judge decides the evidence should be excluded from the upcoming trial because the officer violated your Fourth Amendment rights.

At this point, the prosecutor might dismiss the charge for possession of your spouse’s Adderall. However, you would likely still be prosecuted for resisting arrest and assaulting a peace officer. (Your actions would still be considered unlawful even if the initial stop was found to be unlawful.)

Usually, there are no consequences for the police officer.

You’ve probably heard the old saying “You might beat the rap, but you can’t beat the ride.” Growing up, I never understood it. In fact, it wasn’t until I began practicing criminal defense the I truly understood it. It is a slap in the face of the Fourth Amendment. To paraphrase the old saying: “The evidence against you might be nonexistent, and my actions might be illegal, but I don’t care. Your ass is still going to jail.”

Our Unites States Supreme Court Justice Sotomayor, a former prosecutor who grew up in a housing project in the Bronx, recently provided a gut wrenching summation of the current status of our Fourth Amendment in her dissenting opinion from Utah v. Streiff:

“Writing only for myself, and drawing on my professional experiences, I would add that unlawful ‘stops’ have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.

Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact.[1] That justification must provide specific reasons why the officer suspected you were breaking the law[2] but it may factor in your ethnicity,[3] where you live,[4] what you were wearing,[5] and how you behaved.[6] The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous.[7]

The indignity of the stop is not limited by an officer telling you that you look like a criminal.[8] The officer may next ask for your ‘consent’ to inspect your bag or purse without telling you that you can decline.[9] Regardless of your answer, he may order you to stand ‘helpless, perhaps facing a wall with [your] hands raised.’[10] If the officer thinks you might be dangerous, he may then ‘frisk’ you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may ‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’[11]

The officers control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or ‘driving [your] pickup truck…with [your] 3-year-old son and 5-year-old daughter…without [your] seatbelt fastened.”[12] At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to ‘shower with a delousing agent’ while you ‘life [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.’[13] Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the ‘civilian death’ of discrimination by employers, landlords, and whoever else conducts a background check.[14] And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you ‘arrestable on sight’ in the future.[15]

This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes,[16] many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner.[17] But it is no secret that people of color are disproportionate victims of this type of scrutiny.[18] For generations, black and brown parents have given their children ‘the talk’—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them.[19]

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.

We must not pretend that countless people who are routinely targeted by police are ‘isolated.’ They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.[20] They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all of our lives. Until their voices matter too, our justice system will continue to be anything but.

***

I dissent.”

You should, too.

 

[1] Whren v. United States, 517 U.S. 806, 813 (1996)

[2] Terry, 392 U.S., at 21

[3] United States v. Brignoni-Ponce, 422 U.S. 873, 886-887 (1975)

[4] Adams v. Williams, 407 U.S. 143, 147 (1972)

[5] United States v. Sokolow, 490 U.S. 1, 4-5 (1989)

[6] Illinois v. Wardlow, 528 U.S. 119, 124-125 (2000)

[7] Devenpeck v. Alford, 543 U.S. 146, 154-155 (2004); Heien v. North Carolina, 574 U.S. ___ (2014)

[8] See Epp, Pulled Over, at 5.

[9] Florida v. Bostick, 501 U.S. 429, 438 (1991)

[10] Terry, 392 U.S. at 17.

[11] Id. at 17, n. 13

[12] Atwater v. Lago Vista, 532 U.S. 318, 323-324 (2001)

[13] Florence v. Board of Chose Freeholders of County of Burlington, 566 U.S. ___, __-__(2012) (slip op., at 2-3); Maryland v. King, 569 U.S. ___, __-__ (2013) (slip op., at 28).

[14] Chin, The New Civil Death, 160 U. Pa. L. Rev. 1789, 1805 (2012); see Young & Petersilia, Keeping Track, 129 Harv. L. Rev. 1318, 1341-1357 (2016).

[15] A. Goffman, On the Run, 196 (2014)

[16] Supra, at 8

[17] See M. Gottschalk, Caught, 119-138 (2015)

[18] See M. Alexander, The New Jim Crow, 95-136 (2010)

[19] See, e.g., W.E.B Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015)

[20] See L. Guinier & G. Torres, The Miner’s Canary, 274-283 (2002).

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