Destruction of the 4th Amendment
During a recent cross-examination, an officer claimed that under his interpretation of the law, even a rear-view mirror technically obstructed a driver’s view and therefore he could stop that vehicle for a violation of city ordinances. Fortunately, the Judge did not agree with the officer and found he did not have probable cause or reasonable suspicion to pull the Defendant over and dismissed the case. Sadly, if we had been in another courtroom, this decision may not have been the same.
Profiling
This officer’s testimony points out a significant problem between the goal of police agencies attempting to keep drugs and guns off of the streets, and the freedom against unlawful search and seizure. This officer made it clear that the pretext of the stop was not about the violation, but instead was because it was an older model vehicle being driven in a poor (high-crime) neighborhood at night. This officer was profiling. The local version of the movie Minority Report.
Police Interpreting the Law
Now you might be asking yourself, “The police can’t just stop you just because they have a feeling about you, right?” Isn’t this in part, what has infuriated many Blacks and Hispanics, who claim they are profiled and targeted? Should we be blaming the police, or should we be looking at the courts who have allowed the very clearly written 4th Amendment to slowly be whittled away until it provides very little protection at all. The courts have changed the legislative intent in the name of cleaning up the street. Even more terrifying is that they have given the policing agencies the power to interpret the law, in the name of safety.
Subjective Intentions
Whren v. United States removed the pretext doctrine from the Fourth Amendment and left people without adequate protection against arbitrary seizures and searches. 116 S. Ct. 1769 (1996). This was reinforced by Ohio v. Robinette, where the Court said subjective intentions play no role in ordinary probable cause Fourth Amendment analysis. 117 S. Ct. 417, 421 (1996). In almost every State and County, you will find cases that further embolden police to just walk up to anyone they have a gut feeling about and search them on the basis of police safety.
An example is the ability to invoke an investigatory stop (seize a person) if under a totality of circumstances, the officer, through his/her training and experience, has reasonable suspicion a crime is afoot. So, what constitutes reasonable suspicion?
Reasonable Suspicion
Reasonable suspicion is defined as "particularized and objective basis for suspecting the particular person stopped of criminal activity." Guerrero, 472 F.3d at 787. The reasonable suspicion inquiry is an objective one, and courts defer to trained law enforcement personnel in conducting that inquiry, "allowing officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person." Id. Factors alleged in support of reasonable suspicion are assessed cumulatively rather than individually. Id. "It is well settled that an officer with reasonable suspicion for an investigative detention need not have ruled out all possible innocent explanations for the observed conduct." Luginbyhl, 321 Fed.Appx. at 786. United States v. Matthews, 10-CR-0148-CVE, ROSS 03283686 at *5 (N.D. Okla. Nov. 1, 2010).
Totality of Circumstances
Okay, so what is a totality of circumstances? At one time, Illinois v. Wardlow claimed that even running away from police in a high crime neighborhood was not enough. 528 U.S. 119, 123 (2000). This has changed. In United States v. Matthews, the officers were originally on patrol in an apartment complex because it had been the site of recent violence. The officer’s interest in an individual was aroused because he observed individual looking around and reaching into a car several times. Although these actions may not, on their own, be worthy of suspicion, based on Officer’s experience as an officer he found this behavior in a high-crime area to be indicative of criminal activity. Deferring to the judgment of the officer’s interpretation of the individual’s actions is sufficient to create reasonable suspicion that would justify an investigatory detention. 10-CR-0148-CVE, ROSS 03283686 at *6 (N.D. Okla. Nov. 1, 2010).
Judiciary Must Not Give Away Its Power
When the judiciary gives away legislative interpretation to the policing agent, it will almost certainly lead to a diminishing of personal freedom. The police have the job of taking illegal guns and drugs off the street, and they will achieve that by whatever methodology the law will allow. Our government is made up of checks and balances, and when one or more branch gives up their responsibility it creates an imbalance that places our freedoms at risk. The judiciary has to draw the line in the sand, and force the police to follow the law as it is written, not interpreted. When this is done it will force the legislators to write more precise laws with language that leaves less to interpretation. Then and only then will people be better served by all the branches.
Author: Brian Boeheim
Brought to you by: Boeheim Freeman Law at onyourworstday.com