Posted 10/11/14

TRAFFIC STOPS AREN’T JUST ABOUT “TRAFFIC”

Two instances of using traffic laws to justify drug searches reach the Supreme Court

     By Julius (Jay) Wachtel. Nicholas Heien and Naynor Vasquez were tooling along rural North Carolina when they drove by a parked sheriff’s patrol car. Officer Darisse looked up. On the lookout for “criminal indicators,” the eagle-eyed cop noticed that Vasquez, the driver, seemed “stiff and nervous.” So he pulled out to follow. Officer Darisse then noticed that one of the vehicle’s brake lights wasn’t working.

     Bingo!

     In his report, Officer Darisse wrote that he stopped the car because of a malfunctioning brake light. He could hardly have claimed otherwise. To justify a stop an officer needs, at the very least, reasonable suspicion of law-breaking. Merely “driving while stiff” isn’t enough.

     As one might expect, the cop wasn’t all that interested in light bulbs in the first place. But to rummage through a car requires either the occupants’ consent or probable cause that contraband or other evidence of a crime may be present. After issuing a written warning about the malfunctioning brake light the officer asked if he could search for drugs and such. Vasquez didn’t object and Heien, the vehicle’s owner, grunted his assent.

     A full forty minutes later the good officer had his prize: a baggie of crack cocaine. He promptly arrested the pair for transporting drugs. What officer Darisse didn’t know then – but certainly knows now – was that the North Carolina vehicle code requires only a single functioning brake light.

     That oopsie set off a fascinating legal drama. In Heien v. North Carolina (no. 13-604, cert. granted 4/21/14) Heien  argues that his conviction – so far every court, including the North Carolina supreme court, has ruled against him – goes against common sense. After all, if citizens are expected to know the law, shouldn’t the cops? (Vasquez pled guilty and isn’t a party to the appeal.)

     In the law, though, logic isn’t necessarily dispositive. Heien’s petition for certiorari points out that State and Federal appeals court have come down on both sides of the issue. Some have ruled that stops based on the mistaken belief that a certain traffic law exists violate the Fourth Amendment, thus poison the fruit of the tree. Others have allowed evidence gained through such stops,  holding that an officer’s “objectively reasonable” belief is enough.

     As to the last point, North Carolina heartily agrees. It argues that mistakes of law and of fact should be evaluated by the same standard – their objective reasonableness. Officers supposedly need “leeway” to be effective, and holding them to a higher bar for mistakes of law would be impractical. It’s also unnecessary, as there are few cases in which such errors could be excused.

     At the heart of the dispute lies the “good faith exception” to the exclusionary rule. Heien argues that when a stop is predicated on a non-existing traffic law the exception does not apply – everything must be suppressed. North Carolina disagrees; in its view, an objectively reasonable mistake of law is not the kind of outrageous police conduct that the Fourth Amendment was intended to prevent.


     Dennys Rodriguez and Scott Pollman were tooling along a Nebraska highway when police officer Struble observed their vehicle drift across the line demarcating the shoulder. Officer Struble initiated a traffic stop. He then asked Rodriguez, the driver, to accompany him to his police car, where a drug-sniffing dog awaited. Whether Rodriguez realized what was up we don’t know. He asked if he had to leave his vehicle, and when told “no” he stayed put. That and Pollman’s evasive demeanor aroused the cop’s suspicions.

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     After issuing a warning ticket the officer told the pair to stick around and radioed for backup. Help arrived in six or seven minutes. Officer Struble then walked the pooch around the car. It alerted, and a search turned up a “large bag” of meth.

     Rodriguez and Pollman were convicted on Federal drug charges. On appeal, they claimed that once the officer issued the warning they should have been let go, and that their detention, if only for seven minutes, violated their Fourth Amendment rights. Their pleas were rejected by the Eight Circuit, which had itself allowed “de minimis” extensions for drug sniffing in prior cases.

     In their appeal to the Supreme Court (Rodriguez v. U.S., no. 13-9972, cert. granted 10/2/14) Rodriguez and Pollman cite a number of state and Federal court decisions which hold that once legitimate police business has been concluded, even the briefest detention is Constitutionally impermissible. “Liberty is compromised not because of the traffic violation that permitted the stop in the first instance but because of the officer’s own curiosity or hunch. When that is the case, the length of detention is irrelevant.”


     With lower court decisions in their cases stacked against them, the petitioners seem to be at a serious disadvantage.  Rodriguez and Pollman were legally stopped and only briefly detained. Had the officer delayed writing the warning until backup arrived, which under the circumstances (it was midnight) seems prudent, what would be left of their claim?

     On the other hand, Heien’s argument has promise. His stop was inherently unlawful. One wonders about the message that making a “good faith” exception in such cases would convey. That an officer’s well-crafted “reason” can matter more than the law?

     Your blogger isn’t normally fond of gambling, but he predicts that the Supremes will reverse Heien and affirm Rodriguez/Pollman. Stay tuned!

UPDATE: On 4/21/15 the Supreme Court reversed, holding that without “individualized suspicion” extending a traffic stop for a non-traffic reason violates the Fourth Amendment. The case was returned to the Circuit court to examine whether there had been enough suspicion. In turn, the circuit ruled that since its own past case law supported a brief detention, the officer had acted reasonably, and that under Davis v. U.S. the evidence should be admitted. Bottom line: Rodriguez and Pollman won, then lost.

UPDATE: On 12/15/14 the Supreme Court, in an 8-1 decision, turned away Heien’s appeal. According to the Court, considering the vague wording of the state law, the officer’s mistake of law was reasonable, thus giving him reasonable suspicion to stop the vehicle.

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Posted 9/20/14

IT’S AMATEUR HOUR IN THE SOUTHLAND

Goofs by L.A.-area cops generate unwelcome publicity –
and probably, at least one lawsuit

     By Julius (Jay) Wachtel. There are likely tens of thousands of police-citizen interactions every day, so one would expect a few goofs. But considering recent events, if they awarded Emmys for amateurish policing, two Southland agencies would be in strong contention. And the FBI wouldn’t be far behind.


     Friday, August 22nd was a gorgeous day in Beverly Hills. With a predicted low in the mid-70s, it promised to be a perfect evening for a pre-Emmy party. Alas, producer Charles Belk, 51, wouldn’t make it. After a couple tough hours running a “gifting suite” at a fancy hotel (don’t ask), Mr. Belk was lounging around in a presumably equally fancy restaurant when he became concerned about getting a…parking ticket. That’s why, about 5:20 pm, he left to check the meter.

     His timing was atrocious. Only moments earlier another “tall, bald black man in a green shirt” held up a nearby Citibank. Spotting the shiny-domed Belk, officers must have thought he was manna from heaven. They gleefully pounced, applied handcuffs and sat him on the curb. Belk tried to explain (read his Facebook post here). He asked the cops to compare his appearance to the bad guy on the bank video. But no one was listening.

     Forty-five minutes later, while Belk, the object of a “reasonable suspicion" detention under Terry, sat with his hands cuffed behind his back, a witness “positively” identified him as the robber. Ergo – probable cause!

     After booking Belk at the Taj Mahal (that’s what they call BHPD’s stunning headquarters), detectives and the FBI grilled him. Surprisingly, Belk didn’t confess. Instead, he kept badgering them to watch the video. As the ordeal reached the six-hour mark, they finally gave in.

     Belk was un-arrested a few minutes later. Sorry! Have a nice evening! (He’s now considering a lawsuit.)

     Incidentally, one of the real robbers, a female, was also arrested. She’s been tied to nearly a dozen heists. But her male partner is still on the lam. So if you spot a tall, bald black guy…


    LAPD claims that its officers had plenty of justification for detaining starlet Danielle Watts (“Django Unchained”) and her boyfriend, celebrity-chef Brian Lucas, on November 11. According to gossip website TMZ, workers in a Studio City office building observed Watts and Lucas in a parked car, partially undressed and having vigorous sex, and they apparently kept at it even when someone confronted them to complain.

     An aggrieved citizen dialed 9-1-1. But by the time officers arrived (presumably, they weren’t dispatched Code 3) Watts and Lucas were no longer in flagrante delicto. LAPD Sergeant Jim Parker, the senior officer on scene, told the Los Angeles Times that he asked the couple for their ID’s. Lucas complied. Watts didn’t.

     In retrospect, her recalcitrance isn’t difficult to understand. What if a gossip website found out?

     There followed a verbal jousting match between Watts, who stood on her rights as an American to not show ID, and Sgt. Parker, who insisted that she had to because, among other things, there was “probable cause.” Sgt. Parker recorded the encounter and gave the tape to the Times, which posted it online (take that, TMZ!) If you have the stomach, take a listen. It sounds just like a know-it-all older brother bickering with his obnoxious kid sister.

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     Except that brothers don’t handcuff their sisters and deposit them in the back of a black-and-white when they try to walk away.

     Sgt. Parker soon confirmed Watts’ identity, removed the handcuffs (she said they cut her wrist) and released the couple. Really, he had little choice. The frisky stuff happened well before he got there, and cops can’t arrest for misdemeanors such as indecent exposure not committed in their presence. For that they need a warrant, which requires interviewing witnesses and assembling evidence. LAPD has presumably bigger fish to fry. And one cannot imagine a prosecutor going along.


     To be sure, these episodes are factually different. Yet both began with Terry stops that spiraled out of control. Consider, first, the arrest of Charles Belk. A photograph depicts two BHPD officers casually looking on while he sulks on the curb. Either cop could have pulled out a smartphone and within moments confirmed that Mr. Belk was indeed a producer working on Emmy-related events. Five minutes of “investigation” would have verified that he just left a nearby restaurant and that his car was parked nearby.

     So, he impulsively decided to rob a bank while on a stroll?

     True enough, a witness ID’d Mr. Belk as the robber. But experienced cops know how shaky one-on-one identifications (they’re called “showups”) can be. When someone who resembles a perpetrator is in police custody, witnesses can feel compelled to say “yes, that’s him.” Add a cross-racial element, as we assume applies in this case, and it’s doubly problematic.

     Perhaps the street cops were leaving it to detectives and the FBI, which takes the lead in bank robbery cases, to do the basics. But it doesn’t look like the “experts” pulled out their smartphones, either. By the time they decided to test their own judgment the actual perpetrator was long gone. And when he is caught, forget about using the witness who ID’d Mr. Belk.

     On the other hand it’s hard to develop much sympathy for Danielle Watts. Her evident “it’s all about me!” attitude grates. But in this blog we’re mostly interested in how police behave. After all, they’re the ones who get the big bucks for persuading recalcitrant citizens to voluntarily comply.

     And here officers fell seriously short. After being on scene for, say, thirty seconds, they must have realized that no citizen had been harmed (offended, perhaps). The call was indeed a “nothing.” Sergeant Parker readily conceded that he only persisted to verify Watts’ identity for his paperwork. Why he didn’t simply ask her companion, then use a smartphone to confirm, we don’t know. We do know, because we listened to the tape, that Sergeant Parker got hooked into a protracted debate and wound up sounding just like his irritating, self-righteous antagonist.

     In the end, police gained the upper hand over a slight, small woman by applying handcuffs. Had the situation been handled more artfully, say, with verbal persuasion techniques routinely taught in police academies, officers might have still got the job done and made it to lunch on time. If nothing else, one hopes that Sergeant Parker and his colleagues learn some Verbal Judo before they run into a recalcitrant, 250-pound weightlifter on their next “nothing” call.

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Posted 9/14/14, updated 10/27/14

COPS NEED MORE THAN BODY ARMOR

As powerful weapons flood the streets, what can officers do?

     By Julius (Jay) Wachtel. As a St. Louis grand jury began mulling over the shooting death of Michael Brown by a Ferguson police officer in August, the Senate’s Homeland Security and Governmental Affairs Committee swung into action. Their concern wasn’t with the killing but with what happened afterwards. Specifically, whether authorities over-reacted to protesters by swooping in with heavy-handed tactics and a bevy of intimidating military gear, including a fearsome-looking $360,000 BearCat armored truck paid for with a grant from the Department of Homeland Security.

     Missouri’s own Sen. Claire McCaskill acknowledged that the bullet-resistant qualities of the vehicle had proven useful. Still, she and other legislators questioned whether the plethora of armaments being acquired by police forces in wake of 9-11, much of it military surplus furnished at no cost by the Defense Department, was overkill. America’s top cop, Attorney General Eric H. Holder Jr., promptly chimed in: “At a time when we must seek to rebuild trust between law enforcement and the local community, I am deeply concerned that the deployment of military equipment and vehicles sends a conflicting message.”

     Law enforcement’s track record gives cause to worry. Missteps in handling demonstrations have poisoned police-community relations for decades. In 2007 we chastised LAPD after a commander declared an immigrant-rights march illegal, resulting in a violent confrontation that observers characterized – and not without justification – as a “police riot.” Apparently the department learned its lesson, and four years later we praised them for a massive but low-key and effective response to boisterous Occupy Wall Street demonstrators.

     Yes, there was chaos and looting in Ferguson, and police were obliged to respond. Yet when (mostly white) officers attired in helmets and protective gear imprudently pointed weapons at a (mostly black) crowd – one cop from a nearby town actually threatened to shoot an unarmed protester – it harkened to a past that our nation has struggled mightily to leave behind.

     That, in a nutshell, was the backdrop for the Senate’s review. Considering the hearing’s tenor, the implications seem grim. While gun makers happily churn out ever-more lethal hardware for civilian use, the Ferguson imbroglio could make it far more difficult for law enforcement agencies, particularly, smaller, less well-funded departments to acquire protective gear and armored vehicles to counter the lethal threats that cops often face.

     For an example of this dilemma look no farther than Davis, a town of about 65,000 nestled a short drive from California’s capital. A few weeks before Ferguson blew up, its police department was the proud recipient of a $680,000 armored car, courtesy the Department of Defense. In urging the acquisition Chief Landy Black told the city council that the vehicle’s ability to resist bullet penetration made it “the perfect platform to perform rescues of victims and potential victims during active-shooter incidents, and to more safely deliver officers into active shooter incidents, barricaded hostage crises, and/or other or environments involving armed offenders.”

     No matter. With only one dissenting vote, council members recently ordered Chief Black to return the MRAP to sender.

     Had the good chief just been blowing gunpowder? Hardly. Thugs armed with high-powered weapons have been playing havoc with the Golden State’s cops:

  • On July 16, three weeks before Ferguson, heavily armed bank robbers led Stockton police on a wild, bullet-riddled chase that ended with the fatal wounding of two suspects and, tragically, a hostage. An AK-47 type rifle and large quantities of ammunition were recovered. Police used an armored vehicle to close in. No officers were hurt.
     
  • On August 18, nine days after Ferguson, LAPD engaged in a running gun battle with two suspects. One, armed with a high-powered rifle, shot and wounded a SWAT officer, and was killed with return fire. An armored vehicle helped bring the incident to a close.
     
  • Four days later, on August 22, gang members armed with an AK-47 type rifle with high-capacity magazines and a handgun left a 31-year old San Bernardino police officer in critical condition with a head wound. His partner shot one of the assailants dead and three other suspects were arrested.
     
  • UPDATE: On October 24, Luis Bracamonte, 34, aka Marcelo Marquez, used an AR-15 rifle to shoot and kill  two Sacramento County, California sheriff’s deputies. He also wounded a third deputy and a civilian. Bracamonte was arrested along with his wife, who was armed with a handgun. Bracamonte, an illegal alien, had been twice deported.

     But if we give cops what they’re asking for, aren’t we “militarizing” the police? Perhaps. On the other hand, when any ordinary citizen can bop into a gun store and come out with 7.62 and .223 caliber, high-capacity, high-cyclic rate rifles whose rounds will readily penetrate ballistic vests, the line between “police work” and “military work” seems thin, indeed. Consider, for example, the incident that made SWAT famous, the North Hollywood shootout of February 28, 1997, when two bank robbers armed with a 9mm pistol and five semi-auto rifles (several made full auto, an illegal but often simple conversion) wounded eight LAPD officers and five civilians.

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     Exactly how did platoons of frightened officers, crouching behind their cars with their peashooters drawn, define their roles then?

    Still think that MRAP’s are a bit much? Each year the FBI compiles detailed statistics about police line-of-duty deaths. These provide a sobering view of the limitations of personal body armor:

     Back to Ferguson. Remember that even Senator McCaskill acknowledged the usefulness of the armored vehicle. If you have nothing other than ballistic garments, think hard before advancing on someone armed with a high-powered rifle and a bushel-full of ammo.

     And keep in mind that whether or not you’re “militarized,” you’re still the police. You can’t call in an air strike.

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Disturbed person + gun = killer, disturbed person + assault rifle = mass murderer

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