Police Power vs. Personal Freedom

Well, the Supreme Court has once again rendered an opinion which expands police powers. Now, the Court has ruled, the police may stop and search someone because they run away.

(See linked article: http://dailynews.yahoo.com/h/nm/20000112/ts/court_police_1.html))

Now this scares the heck out of me, but maybe there are some law-and-order types out there who disagree and would like to debate the matter.

Soon, it seems, the police will be able to stop us because they just don’t like the way we’re dressed. The current Supreme Court has steadily and consistently expanded police powers at the expense of privacy and personal freedom. Is anyone else out there worried about police who might simply lie and say that someone ran away from them, to give them an excuse to stop and search that person?

This gradual turn away from individual rights has been led (of course) by Republican appointees to the Court. (That should annoy the heck out of you libertarians in the crowd, and make you think twice about your support of Republicans.)

Anyone disagree?

The case you’re talking about is Illinois v. Wardlow.

Here’s the way this works. When the police stop you, they are sometimes permitted to frisk you for their own protection, even without probable cause. What they must have is a “reasonable, articulable suspicion,” that a crime is being being committed or is about to be committed. This was decided by a case called Terry v. Ohio, (392 U.S. 1, 1968.)

Please note that the police don’t have to have any suspicion to come up to you and ask you questions. As long as you’re free to ignore them and walk away, it is a completely consentual encounter that doesn’t implicate the Constitution at all. But if they have that reasonable, articulable suspicion, they can briefly detain you and pat down your outer clothing, just to make sure you don’t have a weapon that might threaten their safety.

This is not a full-scale search. It’s just a brief check. The law allows this, explained the Terry Court, under the theory that the compelling society interest is so great (protection of police officers’ lives) and the intrusion into individual privacy so small (just a brief pat of outer clothing) that, on balance, it’s considered appropriate.

I can’t imagine that anyone would argue that those rules are unfair, or involve undue police powers.

Since 1968 and the Terry decision, plenty of cases have attempted to create a bright-line test for what, exactly, constitutes “reasonable, articulable suspicion.” It’s never really been done, but one phrase appears in hundreds of appellate opinions: “totality of the circumstances.” The general consensus is that in deciding whether reasonable suspicion exists is done by taking into account all the circumstancesm rather than focusing myopically on the presence or absence of one element.

An individual’s presence in a high-crime area, standing alone, is insufficient to create reasonable suspicion. But it can add to other factors. Nervous or evasive behavior when encountering police, standing alone, is not sufficient. But the two together (and as the Wardlow Court dryly observes, “…headlong flight is the consummate act of evasion”) may serve to create a reasonable suspicion under Terry.

So, the officers pursued Wardlow, made a Terry-type stop, and frisked his outer clothing only. They discovered a concealed handgun, a violation of Illinois law. At that point, they arrested Wardlow, and he was ultimately convicted of possession of a handgun by a felon.

Frankly, there is very little landmark or new about this case; it is governed by the principles of a case decided in 1968, which has been good law for 31+ years.

And I don’t think it gives the police undue powers.

  • Rick


I understand how police stops work, believe me.

My concern with these recent rulings is how easily they may be abused. Police already lie routinely to justify stopping cars. (“He crossed the center line. Honest!” – And how does one go about disproving that?)

Another recent decision allows the police to force everyone out of any car they stop, for a full search. Now why, as an innocent passenger in the back seat, should I be subjected to a search because the driver was
speeding? Do you think that rule will be evenly enforced? Or will you only get searched if you “look suspicious”?

With this new ruling, in addition to being able to stop any car they want to, police have the ability to stop any pedestrian they want to, with a simple lie. (“He started to run, and I grabbed him! Honest!” – Again, how does one go about disproving that?)

Just how much freedom are we willing to surrender for “safety”? Not to sound like Chicken Little, but I’m quite sure Nazi Germany had a low crime rate.

I’m not sure I agree with that.

I would suggest that there are a small minority of cops that will outright lie in an effort to justify their stops. A slightly bigger chunk will probably shade their testimony just a bit, but the majority won’t lie. You have only to look at the vast number of cases in which evidence is suppressed. Cops know what the rules are. If they wished to, they could plausibly lie for many many more of them, and save cases that are otherwise dismissed. But they don’t.

I also don’t see how this decision makes it easier for cops to lie. If a cop is going to lie, he can lie about whatever the issue is. Running not enough to justify a Terry Stop? “Your Honor, as he turned to run, I clearly saw the bulge in the shape of a handgun in his pocket.” If the cop is going t lie, he can lie about whatever he needs to. This decision doesn’t make it easier.

There is no Supreme Court decision that permits an officer to order everyone out of the car for a full search on a predicate offense of speeding. There has to be something else (a reasonable, articulable suspicion, not an inchoate hunch) to allow the officer to perform even a Terry search. For a “full search” of a person, probable cause is required.

It is true that police can “stop any car they want to” with a simple lie. That fact predates this decision, predates this century, and in fact has been true as long as there were police.

In the same vein, police have always been able to stop any pedestrian they want to with a simple lie. (“I saw him stuffing bags of a white powdery substance into his pocket, Your Honor,”) if the illegal search turns up coke. And (“I saw him stuffing bags of a green leafy substance into his pocket, Your Honor,”) if the illegal stop turns up marijuana.

I contend that the vast majority of cops are honest, and in any event that this decision doesn’t significantly impair our collective civil rights.

  • Rick

This may be oversimplification, and it will definitely show I am not a bleeding heart Liberal, but here goes:

If someone can give me a good reason why someone who has not perpetrated a crime or was already wanted for one would flee the police, I will say that this decision is unfair and violates rights.

Yer pal,

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How about “Because they might mistake your wallet for a gun and shoot at you 41 times?”

How about, “You live in a neighborhood where the police make a habit of harrassing people who are out minding their own business and of beating up people who they arrest, whether they have obviously committed a crime or not”?

“It’s my considered opinion you’re all a bunch of sissies!”–Paul’s Grandfather

As someone who has lived in a place where police had an inordinate amount of power, the transition to the system in the US was a welcome one. Every time the power of the police force is increased, it makes me more and more nervous. Trust me, crime ain’t great, but when you increase the power of the police it don’t get any better, all you end up with is another thing to fear.

I work on a regular basis with the Police, being an EMT, and I have found very few officers whom abuse their power or enjoy giving people a hard time.

However they do have sterotypes in their heads. I even do in my line of work. If I have to take care of a 16 year old kid that looks like the sterotypical 16 year old punk I am going to be much more careful than if I was taking care of a 16 year old kid who is clean cut and takes care of him self. Either of them are just as able to shoot me as I walk up to them, but I fear the 16 year old punk is more likely to do so. Is it correct, fair, or just? Not at all. However if you choose to assume an immage that is commonly sterotyped, even though you my not fit the sterotype, you still have to accept the consquences of it. If you dont want to be treated like a 16 year old punk, dont look like one.

The issue of police who misuse their power is totally different from the issue of what power the police should be able to reasonably use.

For some time in the 1970’s, there was a trend by the liberal members of the supreme court to approach warrantless searches and siezures with much the same analysis as determinations of guilt, i.e. beyond reasonable doubt. Unless the officer could articulate reasons for a search or stop that could not reasonably be explained as non-criminal behaviour, the search or stop would be improper. I remember this debate raging in the opinions over a stop that involved an officer pulling over a hispanic-looking individual in an area where he felt that fact, combined with other facts surrounding the situation, made it more likely than not that a crime was being committed (drug transport if I recall correctly).

It is always easy to isolate an issue like flight from an officer or passenger v. driver and then debate whether it should be a factor in warrantless searches. The trouble with this is that it misses the point of the discussion under Terry. Yes, the person may flee an officer for non-criminal reasons, but that doesn’t mean that, in a given situation (such as the high-crime area discussed in the case), flight can’t be one of the factors that cause a police officer to say, “You know, we might want to see what that person is up to.”

And for those of you with the idea that this is the product of Republican justices with conservative trends, I remind you that the Terry decision was a Warren court decision, dissnted to only by Justice Douglas, who did, nevertheless, issue a stern warning that should be heeded:

Another thought to keep in mind in this case and in others like it, is that the question of proper police conduct almost always is attached to an exclusionary motion regarding evidence that, if allowed into evidence, will guarantee a conviction. Thus, in general, Fourth Amendment cases involve probably guilty individuals attempting to avoid a finding to that effect by the jury (as opposed to Fifth Amendment cases where such things as allegedly co-erced confessions, etc., cause a person to have more suspicion about the actual fact of guilt). It’s always a bit grating to have someone who was committing a crime complain that they shouldn’t be punished because they were found out in an unfair fashion.

The cases to pay more attention to regarding abuse of the Fourth Amendment would be cases where violation of rights are claimed by those NOT committing a crime at the time. If you find out that significant number of non-guilty people are fleeing police on sight, and being stopped and frisked, THEN you can begin to question the premise that a fleeing person indicates some probability of crime commission.

I agree with the Court’s decisions.

I do not agree that criminals should have their constitutional rights suspended - or even that less attention should be paid to their complaints of their abridgement.

DSYoungEsq wrote:

That is patently ridiculous. These issues only make it to court in the context of criminal trials. Innocent people who get stopped and frisked/harassed don’t generally wind up before the Supreme Court.

(Caveat: In theory, someone whose rights have been infringed can file suit against the police agency involved, but in practice, I don’t know of any lawsuit which has been filed over a stop-and-frisk. I myself have been stopped and searched without reasonable suspicion. It annoyed and angered the heck out of me but I didn’t file suit, because it would have been my word against the cop’s.)

So, if it weren’t for criminals using the exclusionary rule to overturn convictions, the rest of us wouldn’t know what our rights are.

The last two posters miss the point of the statements I made regarding how the Fourth Amendment gets interpreted.

If a person who is discovered to be breaking the law complains about HOW he was discovered to be breaking the law, he has a much harder time demonstrating that the police violated his Fourth Amendment rights. If the person WAS violating the law, then the factors that lead the officer to make the stop or conduct the search are more likely to be factors that can reasonably lead an officer to that conclusion, because the conclusion was CORRECT. Thus, when a person breaking the law to claims that fleeing an officer is NOT conduct that gives rise to an inference of criminal conduct, certainly his own case doesn’t prove the point.

If, on the other hand, a case of a NON-lawbreaking individual brought the same issue to the court, then there would be a better case, because at least in THIS individual, the officer’s presumption would have been wrong. And, contrary to your assertions, civil rights lawsuits are filed daily over claimed violations of Fourth and Fifth Amendment rights.

I was NOT asserting that an accused criminal shouldn’t be protected by the Constitution (though whether or not the Exclusionary Rule is necessary is certainly an interesting side debate of HOW to protect those rights).

You’ll of course agree, DS, that “the cop was right” is never permitted as direct evidence that his stop/frisk/search was justified. The Commonwealth can only argue the facts as the officer knew them at the time, not the subsequent events that unfolded.

That said – you’re right. There’s no dearth of 1983-based suits arising from stop and frisk cases.

Here’s what’s unknown: how many citizens, aggrived by an unjustified stop and frisk, will go so far as to file suit? I have no idea.

It would be nice to see a study. Surely someone’s done one…

Related point: the Commonwealth always piously claims, “Hey - he consented to the search.” But is it really consent if the cop says, “You don’t have anything in there I should know about, do you?” And if the answer is no, and it’s followed by, “Do you mind if I look around?” how many people know they have an abolute right to say, “Yes, in fact, I do mind.” I think lurking in their minds is the sense that to say no will make them look guilty… so they have to acquiese.

And the cops know this.

I’m all for law and order… but if there’s any room for reform, maybe it lies in the starnge hinterland between consent and coercion in searches - and the hinterland between “in custody” and not for Fourth Amendment purposes.

And as long as we’re talking about reform… the ridiculous reasons prosecutors advance to strike a juror and evade Batson review! Come on!

  • Rick

I hate to turn this into a Consensual Crimes debate, but … aw, who am I kidding? I’d LOVE to turn this into a Consensual Crimes debate!

Part of the reason the search-and-seizure issue has been such a hot button in the last few decades has been the much more vigorous enforcement of our anti-drug laws than in times past. (The Reagan Administration’s declaration of a “war on drugs” served to throw this sea-change into sharp relief.) In the 1940s, I’d guess, nobody would care if you were carrying some cannabis or coca or opium on your person. Hey, it’s your business, and so long as you keep your filthy habit out of the public eye we’ll look the other way. The 1960s, when rebellious youths routinely flaunted their defiance of these anti-drug laws and the rest of the population reacted as one might expect they would, changed all that. Now everybody on the street is a potential junkie who deserves to be locked up. What would once have been your own business is now a hienous crime.

So … now you can all post and tell me that you completely agree with me. :wink:

The truth, as always, is more complicated than that.

Police often abuse their powers, they just have the power to cover it up. At least for a while. Recently IA nationwide has been moved to third party investogators, and since has seen a skyrocket in the number of dishonest law enforcement officers getting caught. Below are just a few links to corroborate this.
http://www.freepress.com/news/nw/qcops21.htm http://www.msnbc.com/local/knbc/335543.asp

The two links you posted refer to stories about specific cases. Neither provides support for your claim that such cases are “skyrocketing.”

Have you such support?

  • Rick

I noted after reading the above posted citations that they refer to scandals concerning large department and hundreds of polic officials and officers. That would count as more than just specific cases. Yet I would like to see a few more before I’d agree that “skyrocketing” is the right term.