Published: Sunday, 26 June 2016 14:12
I have long held the belief the the powers of the police should be as limited and narrow as possible. Remember, they are the agents charged with the enforcement of the laws of the State. That whole "To protect and serve" is all marketing. The citizens receive positive benefits from the actions of the police, make no mistake about it. When you call 911 and the police come and deal with Bad People who are causing riots, stealing from people or killing them, the police are there to contain and arrest the Bad People and that's it. You get the benefit of the Bad People no longer being there and hurting others.
I also believe that the laws should be as few and simple as possible. Our Founding Fathers said that the laws should be able to be read and understood "when running." With the reams and reams of laws passed by Congress, then thanks to the Administrative Procedure Act there are reams and reams more of regulations with the force of law issued by the myriad Federal Agencies. On average, a regular citizen commits three felonies every day just going through their normal daily activities. So a drastic limitation of the lawful use of police investigatory powers should be held to strict standards and rules.
So when I see this 5-3 decision come out of SCOTUS, I see the power of the State advancing quickly over the People. Here it is, Utah v. Strieff.
The boiled down facts are that the police suspected that drug activity was being conducted at a house. While the house was under surveillance, the police saw the defendant leave the house, then followed and without cause stopped the suspect. After obtaining the defendant's license and registration, a normal search of police records showed that the defendant had a warrant out for his arrest. The Defendant was then arrested and searched, which turned up a small amount of narcotics on his person.
The defendant claimed that the officer had to cause to stop him and demand identification. SCOTUS saw this as "the arrest came from the name search that turned up the arrest warrant."
Here are my issues with this:
The police stopped him without "probable cause," which means that the officer would have to clearly articulate what law the defendant had broken and what the officer witnessed to indicate that the law had been broken in order to initiate the encounter. A good example might be, "I saw the defendant approaching the intersection of Kirby St. and Shelby Ave. traveling along Kirby St. in a westerly direction. Upon reaching the intersection, the defendant turned right onto Northbound Shelby Ave without coming to a complete stop at the stop sign and failing to activate his turn signal to indicate his intentions. The actions witnessed violates laws 24-373 and 26-222 of the traffic code of this municipality." The police officer failed to meet this standard.
When the police had the house in question under surveillance, they noticed that "making brief visits to the house over the course of a week." To those with a modicum of common sense and reasoning ability, this could only show that most likely some good or service was being exchanged. What that good or service was, the police at that time had no idea. The owner of the house could have been selling Tupperware, candy, stock market tips, or drugs. Experience tells them that it was most likely drugs, because in past cases, 98%+ of the time, when observing this kind of behavior in this setting, it turned out to be transactions for illegal drugs.
If you have ever heard of a "chain of custody," this refers to the chain of people who had access to or handled evidence that was suspected to be used in a crime. For example, a CSI officer picks up a weapon found at a crime scene. He documents the weapon by whatever physical characteristics they can observe at that time. It's bagged and transported it to the Evidence Room. The ballistics expert checks out the weapon to test fire the weapon and obtain a slug for testing. It is then returned to the Evidence Room. Checked out by a court deputy to be taken to the courtroom to be used in the trial, if that deputy sees that the weapon in the bag does not match what is described on the bag, it means that 1) the chain of custody has been "broken," 2) this evidence can no longer be used because this was not the weapon recovered at the scene, and 3) one of the people who signed for that item is in big trouble.
Police are supposed to be held to the same "chain of custody" standards in their actions. An arrest is the end to a series of actions and statements made during a police encounter. If the officer cannot clearly articulate a legal reason why the officer initiated the encounter, it means the chain has been broken and everything discovered after the break cannot be used.
While not unknown, the three Justices who dissented with the majority issued two dissenting opinions.
The first, (on page 14 of the document linked to) is by Justice Sotomayor, with Justice Ginsburg agreeing on three of the four points in the report.
“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 the 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. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.”
The second, (on page 26) is by Justice Kagan and Justice Ginsburg. The money quote is from this part is:
“[C]reates unfortunate incentives for the police— indeed, practically invites them to do what Fackrell did here. Consider an officer who, like Fackrell, wishes to stop someone for investigative reasons, but does not have what a court would view as reasonable suspicion. If the officer believes that any evidence he discovers will be inadmissible, he is likely to think the unlawful stop not worth making—precisely the deterrence the exclusionary rule is meant to achieve. But when he is told of today’s decision? Now the officer knows that the stop may well yield admissible evidence: So long as the target is one of the many millions of people in this country with an outstanding arrest warrant, anything the officer finds in a search is fair game for use in a criminal prosecution. The officer’s incentive to violate the Constitution thus increases: From here on, he sees potential advantage in stopping individuals without reasonable suspicion—exactly the temptation the exclusionary rule is supposed to remove. Because the majority thus places Fourth Amendment protections at risk, I respectfully dissent.”
If you let the police stop people without cause and question them, you have arrived at the Police State.
If you end up on the receiving end of one of these "encounters," know the applicable laws. In my state, you do not have to show your identification except during a traffic stop. You also keep your pie hole shut under all circumstances. Do not speak, shrug your shoulders, wave your hands or any other obvious non-verbal communication.