Category Archives: cops

Silence as guilt and the silent death of the Fifth Amendment

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Consider the following scenario: you’re walking down the street to your favorite microbrewery when a police officer stops you. “Excuse me”, she says. “Do you live around here?” “Yes, yes I do.” “Have you heard seen any strange people hanging around here?” she follows up. “No, not really.” Maybe you have your hands in your pocket; maybe you’re wearing a hoodie; maybe you’re a minority. “Did you break into that apartment there and steal a TV?” she asks, accusingly.

Now, maybe you’re a smart person, or maybe you’ve read this blog or many like it, or maybe you’ve had a brush or two with the justice system before and something somewhere in the recesses of your brain says to you “Don’t answer that! You don’t have to say anything! Walk away!”.

It’s been drilled into you: “You have the right to remain silent. Anything you say can and will be used against you”. It’s a phrase that’s spawned an empire and will keep Dick Wolf’s family from having to work for about two centuries.

So you remain silent. You walk away. She doesn’t like that. She arrests you. You go to trial because you’re innocent. And then the prosecutor asks the officer about that incident. She says you went silent all of a sudden when asked the incriminating question. Maybe she says you shifted your feet, or averted your gaze. Then the prosecutor argues to the jury – the 6 people that will decide whether you keep your liberty or lose it – that only guilty people avoid answering incriminating questions.

If you have nothing to hide, you won’t hide anything.

It’s pretty clear that post-arrest silence cannot be commented on – because really, why even have the right if you’re going to allow that, but yesterday, the Supreme Court of the United States ruled that [PDF] pre-arrest silence can be equated to guilt.

That means, if you’re questioned by a police officer, before being arrested, and you refuse to answer a question, that silence is proof that you’re guilty.

Because, see, it’s not that you don’t have a right to be silent – we don’t know that for sure – but you have to explicitly invoke that right. Meaning you have to say it out loud.

“Sorry officer, but I refuse to answer your question.”

You know what I call that? A technicality. A technicality that has now erased a whole lot more of what was written into the Fifth Amendment for your protection.

So why this line? Isn’t the “Miranda” warning prophylactic, as we were just told? Isn’t that merely an “advisement” of an already existing right?

So do I have the privilege against self-incrimination or not? Does it matter if I’m arrested or not? Should it? I’m either incriminating myself or I’m not. Does my custodial status matter?

Orin Kerr, writing at Volokh, asks two questions:

Finally, I have two major questions about how Salinas is supposed to work in practice. The first question is obvious: How clear an invocation of the Fifth Amendment right does it need to be?

…

Second, and perhaps more interestingly, it’s unclear to me what is supposed to happen when a suspect outside of custody clearly asserts his Fifth Amendment privilege.

You really should read his entire post – and this one by fellow blawger bmaz, and this one at Cato and this one by Bobby G. F. – but I can answer that second one easily: what’s supposed to happen is that law enforcement respects the existence and invocation of those rights and stops questioning.

But that’s not going to happen. What’s going to happen is that they’re not going to advise anyone of these rights. They’re going to “manufacture” scenarios so as to elicit silences and then use those silences to form the basis for probable cause to arrest people. Can’t you just imagine that officer who says that “based on his training and experience”, “innocent people don’t make furtive gestures” and since you did and then “stared silently, with a guilty expression, at the floor”, there is probable cause to believe that you are, in fact, guilty?

I don’t trust them to not abuse this to arrest individuals they don’t have much else on, in an effort to get them into a custodial setting in a police department to further “question” them.

If silence is guilt, then is that enough for probable cause?

When a silence is as good as an admission, does it really matter how you question someone or what you ask them?

The State has already argued that it should have the authority to detain – and that’s a legal term meaning you’re not free to go – anyone on the street for no reason whatsoever. Now they can ask you questions and if you silently walk away, they get to claim you’re guilty because of that?

Do you feel the grip tightening? Do you feel trapped yet?

Perhaps it is easy for you to say – as it is for the august Justices of the Supreme Court – that only a guilty person would refuse to answer incriminating questions or speak up about their rights. But have you ever witnessed an “interrogation”? There’s a reason why false confessions is a growing area of social science study. And what of those with limited mental abilities, or language barriers?

The Constitution is not dependent upon your level of confidence or your proficiency in English. It exists, as it always has, as a document that has executed. It’s rights have been conferred and now we’re giving the exercise of those rights back to the control of the constabulary.

When those with power decide who gets what protection, eventually, no one gets any.

This is what blind deference to establishment in the name of safety has wrought.

But don’t keep silent about it; I might think you’re guilty.

 

Well, that escalated quickly

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well-that-escalated-quickly

From Photograpy Is Not A Crime, a man takes a photograph of the Sandra Day O’Connor (remember her? Former Supreme Court Justice?) United States Courthouse, which, last I checked, was a public building on a public street. Then all hell breaks loose because Raymond Michael Rodden:

ended up jailed, unemployed and homeless; his iPhone, iPad and Macintosh laptop confiscated as “evidence.” All because they found it odd he was taking photos at 3 a.m. “They told me they’re going to keep my computer because they want to see my search history,” he said Saturday evening in a telephone interview with Photography is Not a Crime.

No, really. That’s it. He took a photograph of a Federal building on a city street at 3am. He chatted with the Federal officers guarding the building and then noticed that police officers were following him. In their cars while he walked. So, he decided not to drive because he was sure they’d pull him over on some bogus traffic violation. Little did he know that they’d stop him walking on some bogus violation:

They kept trying to talk to him but he kept asking if he was being detained and they said no, so he kept walking and they kept following, He walked around for more than an hour as the cops kept following, waiting for him to slip up.

That was when he walked into an alleyway, thinking he was not breaking any law.

Little did he know that Phoenix Municipal Code 36-61 states that “no person shall use an alley within the city as a thoroughfare except authorized emergency vehicles.”

“As soon as I walked into the alley, they descended upon me,” he said.

A fucking municipal code. Which, you know, applies to vehicles, not humans. But who’s keeping track, right? This is what your dollars are doing at work, ladies and gentlemen. At least I sit around playing Solitaire all day not harassing regular folk.

So they detain him, admit that he wasn’t doing anything wrong, search him and his belongings, then search and dismantle his car:

Meanwhile, they discovered that a key in his backpack fit a Toyota Tundra that was sitting in front of their building, so they called the bomb squad to dismantle it in the hopes they would find something illegal.

The car? His bosses. Who obviously wasn’t pleased with this whole thing, so he fired Rodden.

Fired. Lost his computer and his phone and his camera and his bosses car and he has now left town, all because in Soviet America it is now suspicious to take a photograph of a public building at 3am.

When you see something and say something, something fucking stupid like this happens.

All for a stupid photograph. I mean, maybe if he pissed on it, like the Government is pissing on our rights.

You WILL comply; you WILL submit

You thought I was kidding when I rang the alarm bells after that N.C. Supreme Court decision holding that the fact that someone turns away from a roadblock is evidence of a crime, didn’t you? Well the disease has now spread to Georgia. Try reading that article without your mouth going agape. It’s not physically possible. Welcome to Soviet America. Side note: Operation Thunder Stop? What the fuck does that even mean?

Perhaps intelligence committee is a misnomer

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The Constitution of The United States of America is a self-executing document. It does not need permission to grant you your rights, nor does it require a magical incantation to appear and shield you with its protections, as if it were a concoction of a fantasy universe created by a now-very-wealthy female author from England.

But people – many people – with purported intelligence and advanced degrees and those who are presumed to have a basic understanding of these simple facts continue, yet again, to exhibit why we are electing a Congress of fools.

Lawmakers in our nation’s capital – albeit mostly ones with an R next to their name – have made an abrupt about face when it comes to the inviolability of the Constitutional guarantees and have now subjected the rights to a matter of convenience.

House Intelligence Committee Chairman Mike Rogers (R., Mich.) said in an interview Thursday. “We have a long-standing tradition that the judiciary does not interfere with investigations. This sets a very dangerous precedent.”

The “this” that he is referring to, is the story that a Magistrate Judge, on Monday, advised Dzhokhar Tsarnaev of his Privilege Against Self-Incrimination at his arraignment [PDF]. We will get to Mike Rogers, who went on to make even more dangerous comments, in a minute. But first some background.

Apparently, the entire Federal Law Enforcement PolitBuro was “surprised” when a “judge and a US attorney” entered the interrogation room. By then, 16 hours had passed, and any semblance of legitimacy for the use of the “public safety exception” in Quarles. The danger of their “surprise” is that law enforcement expected to be able to “interrogate” Tsarnaev indefinitely/longer/for however long they wanted. Because the Constitution explicitly states that these Rightf are Not Enforceable Until At Leaft 48 Hourf Have Paffed And Thou Art Not A Muflim Terrorift. Wait, no it doesn’t? As my buddy Scott Greenfield writes (linked above):

If this is about the public safety exception, than the government has taken a quantum leap into the temporal abyss. But it’s not clear that this has anything to do with the public safety exception, as it’s hard to imagine anyone arguing with a straight face that they needed five hours, ten, 16, more, to find out whether this 19 year old kid, this kid who had been shot, this kid who (for all he knew) was about to disappear in some black hole the government reserves for terrorists, knew anything about another imminent attack.

Indeed one need only look to this compilation of the changing information of the dangerousness of the two Tsarnaevs to realize that law enforcement’s state goal of “public safety’ was nothing more than an excuse for extraction of information from a U.S. citizen in an extra-judicial manner.

But Rep. Rogers, a former FBI agent, apparently has no such concerns because he’s white not a Muslim.

“What I find shocking is that the judiciary proactively inserted itself into this circumstance and the Justice Department so readily acquiesced to the circumstance,” he said. “The court doing this proactively, they may have jeopardized our ability to get public-safety information.”

A sitting United States Congressman has just stated that the judiciary should not interfere with the administration of law and our rights and that determination of those rights depends entirely on the goodwill of law enforcement agents.

If this were the McCarthy era, or 1984, and I had to give up people I suspected as Communist sympathizers, the first name out of my mouth would be Rep. Mike Rogers of Michigan.

It gets worse.

The revelation about the judge’s role came late Wednesday at a briefing before the House Intelligence Committee. One lawmaker in the meeting asked FBI Deputy Director Sean Joyce why the FBI didn’t raise objections, according to another U.S. official. Mr. Joyce said in essence it wasn’t the FBI’s role to object to such a determination, the official said.

It came as a surprise to the nation’s lawmakers that it was not law enforcement’s role to intercede in the judiciary doing its job. In other words, something as basic and simple as the separation of powers, the administration of justice and due process elude these people who sit on the “Intelligence Committee”.

Let me repeat: the Constitution is self-executing. The rights exist, whether you like them or not, whether you say the magic words or not. The rights enumerated therein do not require the grace and goodwill of lawmakers like Mike Rogers of Michigan to “activate”. Do you want your Constitutional rights to be subject to the permission of Mike Rogers of Michigan?

Let Jon Stewart take it away:

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Give an inch and now they’re suggesting forced interrogations

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herr-flick

See, this is the problem with budging on absolute protections of the Constitution. Once you start saying “everyone has the right, except…”, the “except” becomes the target of rapid bombardment to see how far that hole will go. Once you give an inch, law professors like Akhil Amar and Eric Posner show up to argue how that inch really is a mile, because it’s law and you’re terrible at math.

“Immediate danger” from the public safety exception becomes “civilized compulsory interrogations”. I can’t even type those words without images of the German secret police swirling through my head.

Before we get into the nitty-gritty of these proposals, let’s start where it’s always the simplest, at the beginning. The Fifth Amendment to the United States Constitution provides:

No person shall be compelled in any criminal case to be a witness against himself

Plainly interpreted, this means that no can be required/forced/compelled to answer questions by law enforcement that would show that the person being question was involved in/guilty of a crime. In Miranda, it’s been popularized as “the right to remain silent”, but legally, it’s “the privilege against self-incrimination”. The punishment for violating one’s Constitutional Right is that the Government cannot then use that information or evidence obtained because of that information to then turn around and convict you.

But what if they have no interest in prosecuting you? What if you’re nothing but a small fish and they want someone else? What if they just want the information you have and are willing to forgo prosecuting you in exchange?

Some are suggesting just that, and more. So first Amar, who proposes the following:

The best solution would simply be for the Supreme Court to change course and allow the admission of all evidence gathered as a result of a civilized compulsory interrogation.

Under current law, a suspect can be forced to hand over a blood sample or a fingerprint, because these items are reliable physical evidence, and they don’t violate Fifth Amendment, because blood and prints are not “witnesses,” strictly speaking, and because they are reliable in a way that pure words are not. The same logic holds for admitting all fruit and leads generated by compelled interrogation.

But even if the court won’t go that far, it should hold that in compelled interrogations involving serious and ongoing threats to public safety, evidence and leads obtained by interrogation of the suspect should always be admissible.

Let’s bring coffee, donuts, and yes, lawyers, into the interrogation room. But the law should also require the suspect to answer all questions under pain of contempt—meaning he can be jailed if he refuses—and under penalty of perjury.

His lawyer should understand that her job is not to aid the suspect in lying or stonewalling. Suspects will of course be tempted to lie in some situations. But even lies can often provide cues and clues to trained investigators, and interrogators should also be able to give lie-detector tests with the oversight of a judge.

This is the right balance for public safety and a defendant’s rights—and the Fifth Amendment, properly understood, allows it.

Did you get that? Amar is proposing that any time there is “ongoing threat to public safety”, which he neglects to define, the police get to question you, no limits, no safeguards, no restrictions. They ask you questions and you must answer. Because only guilty people are ever questioned and only guilty people are ever apprehended and Amar is lawprof who’s never set foot in a courtroom representing an actual defendant whose Life and Liberty are on the line.

I’m sorry; I didn’t warn you before the last blockquote. I won’t be so foolish as to ignore the warning now. Warning: this next blockquote will make you want to throw things at your computer screen or perhaps mutilate a soft toy. Please resist the urge to do either, in the name of decency.

Amar’s companion/counterpart/coincidental comrade, Eric Posner offers the following suggestions:

There is a better approach. Imagine a law that grants police broad but temporary detention and interrogation powers in the aftermath of a mass killing in a public location—in other words, any potentially terrorist shooting or bombing.

The police must first seek permission from a judge who will determine whether the act of violence satisfies the criteria, spelled out in the law, about the magnitude and circumstances of the attack.

The police may then detain for one week, say, those whom they reasonably believe responsible for the attack, and interrogate them without informing them of their Miranda rights. Perhaps, the term can be renewed for good cause.

The government would provide these detainees with lawyers who would not be allowed to meet with them, but could appeal the initial judicial order, and examine and challenge before a judge the government’s evidence that the detainee is responsible for the attack.

The judge would have the power to revoke the detention power if it is no longer necessary, and to order the release of the detainees if they cannot be tied to the attack.

Statements obtained from the detainee could be used against him in trial, unless they were obtained through coercion, intimidation, or deception. Conviction would require corroborating evidence.

“Ve vill ask ze qvestions and you vill answer ze qvestions. Do we understand each other, hmm?” he might as well have said. I can imagine, Mr? Prof? Posner a law where a terrorist attack is so broadly defined that it might well cover any allegation of any criminal activity. I can imagine a law where you have simultaneously rendered useless both the Fifth and Sixth Amendments to the United States Constitution (remember, there is that Sixth Amendment right to counsel). I can imagine an “age of terror” as you put it, in which who is a terrorist is dependent entirely on the whims of those who wield the power to make that decision. As Sensei Mark Bennett puts it:

[W]hen the gov­ern­ment talks about “ter­ror­ists,” they’re talk­ing about the peo­ple who they can claim are ter­ror­ists. And when they are talk­ing about the peo­ple who they can claim are ter­ror­ists, they are talk­ing about you and me.

And you and me are people they may decide they don’t like anymore.

What they’re proposing, when it comes down to it, is to grant the entire law enforcement community and the military industrial complex in America the authority to detain any person in the United States, regardless of their citizenship, for a period of time up to a week or longer, for whom there is a hunch – a suspicion? it’s not really clear – that there is involvement in “terrorist” activity. During that detention, that person can be interrogated – civilly, of course – without lawyers, forced to answer and then have those answers used against them in court.

I wrote last week about two eerily similar things: the desire of the State to be able to stop anyone on the street and question them and their desire to possess the power of the investigative subpoena.

You give them an inch on the Constitution; they want to take the whole thing away. You better familiarize yourself with Herr Flick up there.

—

Lest you think the entire world has gone mad, read this post by Greenfield and this roundup at DailyKos for more intelligent reactions.

H/T: InnocentPete

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Image of Richard Gibson as Herr Otto Flick, of the Gestapo, from here.

The cost of Quarles: from Tsarnaev to you

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It appears now that Dzhokhar Tsarnaev was begun to be questioned late on Sunday evening, almost 48 hours after he was apprehended, hiding in a boat in a backyard.

There are some things that should be without dispute:

1. That Tsarnaev is an American Citizen;

2. That the Constitution and all of its protections apply to all American Citizens (and, to be sure, to all residents, but that’s not necessary here), and;

3. That, by virtue of 1 & 2, Tsarnaev has the inalienable right to remain silent, to be appointed counsel and to not be made a witness against himself.

It is irrelevant that the privilege against self-incrimination is a trial right, in that if the right is violated, the statements cannot be used against him at his own trial. It is irrelevant that Miranda is prophylactic and isn’t a right in of itself, but an advisement of already existing rights.

The right exists. It is his right; it is my right; it is your right.

And yet we dither and equivocate and we say, but there is an exception. All laws have an exception. This one is called the “we are scared” exception, also commonly known as the “public safety exception”. It is also the exception to swallow the right.

In New York v. Quarles, a 5-4 majority of the United States Supreme Court said that if the police were faced with the “immediate necessity” of obtaining information that would prevent danger to themselves or others they could invoke a “narrow exception” to the Miranda rule and question a suspect about that “immediate” danger without having to advise him of his rights first¹. They further ruled that those statements would then be admissible in court to prove the defendant’s guilt. See also U.S. v. Abdulmutallab [PDF].

The Obama administration, which has put on a clinic [Bazelon at Slate] of how to forcefully and conclusively [FBI memo] encroach on individual liberties [NYTimes], was quick to state [TPM] that they “plan to invoke the public-safety exception to Miranda in order to question the suspect extensively about other potential explosive devices or accomplices, and to gain critical intelligence.”

It’s been 48 hours. You know the funny thing? As of 9:00pm on Friday night, there were people lining the streets of Boston, cheering and celebrating as they so much deserved to do.

Had there truly been a immediate necessity and an imminent threat to public safety, would that have been allowed? Should it?

I don’t say the above to participate in the more looney fringes of internet discussion that are sure to crop up arguing that the whole thing was a set up, but rather to point out the obvious: that the “public safety” exception is an excuse used by the administration to rip a hole into the Constitution and drive a truck through it.

Others have written more persuasively than I have about why Tsarnaev should have been read his rights: James Holmes was, Timothy McVeigh was.

What makes Tsarnaev different? His name? The color of his skin? The fact that he used a “bomb” and not a gun?

Is our application of the Constitution dependent on the person who seeks its protection? Scratch that; of course it is. Should it be? Can we sustain our moral superiority as the foremost defender of freedom and liberty in the world if we are so quick to make it a Constitution of convenience?

The cost of Quarles is that we are living in a fear-ridden society; that everything is a “public safety exception”. That the bogeyman at night is now a terrorist with a slightly different colored skin, nevermind the fact that we used to proudly trumpet being the “melting pot of the world”. We are xenophobic and afraid. Hiding in the dark clutching our guns, paralyzed in fear, because the terrorists are out to get us, whoever they might be. We are like a person in the throes of a mental illness whose anxiety and fear have taken over every aspect of their existence.

We are a country that has sacrificed everything we believed in at the altar of a promise of safety:

our constitutional rights are now deemed to be partial or provisional rather than absolute, do not necessarily apply to everyone, and can be revoked by the government at any time.

A safety that is illusory – and if it comes, at what cost? Consider the following quote:

“I think that the good news is we don’t need ‘enemy combatant’ to get all the information we need out of him. No. 1, the court, the one court that has ruled, has allowed a lot of flexibility in the public safety exception before you Mirandize somebody,” Senator Schumer said. “But second, at any time, what’s called a HIG, a High-Value Interrogation Group, composed of the F.B.I., C.I.A. and anyone else, can question him without a lawyer in a secured situation and find out whatever they need.”

A second U.S. Senator (Schumer) had said, with a straight face apparently, that an American citizen can be interrogated after denying him the Sixth Amendment right to counsel “in a secured situation and find out whatever they need”. If that isn’t an euphemism for torture, I don’t know what is.

Tsarnaev – and you and I – has the right, Miranda notwithstanding, to refuse to answer questions. Do you realistically think that is an option here?¹ Either he won’t be aware of that right (in which case the government has subverted a U.S. citizen’s Constitutional right), or he won’t be allowed to exercise that right if he knows it. I don’t know which is more frightening.

And therein lies the problem. We can quibble about the legal realities of the admissibility of his statement, but such a discussion is a mere distraction allowing the Government to get away with much more. They’re making off with our rights and our protections; while you’re staunchly guarding the second, they’ve stolen your fourth and fifth and sixth. They’ve made it impossible to exercise a right, either because you weren’t paying attention or too scared of terrorism.

You want to know something funny? There’s a perfectly legal way for the Government to have its cake and eat it too: they can “question” Tsarnaev under the “public safety” exception, the Mirandize him, then ask him the same questions again and the second statements are now admissible in Court. There. Dispensed with that pesky “Fifth Amendment”.

You think this doesn’t happen every day in police stations across America? You’re wrong. Ask any cop you know about the “pre-interview“. It’s here. It’s real. It’s in violation of your Fifth Amendment right.

If Quarles was about the immediate need to find a gun in a supermarket and Tsarnaev is about finding “critical information” 48 hours later, is there a scenario that isn’t covered?

The Constitution is a document that deserves more than lip service. It is a document that deserves obedience. It is not a suggestion of rights that may be offered, if enough people agree that the recipient is deserving. It is there to protect the worst among us, because if the worst are protected, then the best are protected – and more importantly, the vast majority of us – the only human – are protected.

The rights exist. They are his rights; they are my rights; they are your rights. Do you want your rights to be subject to a popularity vote? To convenience? To the color of your skin?

If the world is full of “terrorists” and “criminals”, then will you abide a judge ruling that the “public safety” exception wasn’t met and suppressing statements? If an “exception” can be so broad, can it be called an exception at all?

And if the exception so swallows the Right, can you be said to have that Right at all?

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¹Putting aside entirely the question of whether, had he been Mirandized and then confessed, such a confession would have been voluntarily made.

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N.B. 1: If a single one of you so much as suggests that this post in any way implies that I have no sympathy for the victims of the bombings, I will track you down using thermal imaging and shove you inside a boat and leave you adrift on land.

N.B. 2: It seems that the Federal Public Defender of Massachusetts is on standby, waiting appointment. If it were Connecticut (and State court), the police would be required to inform Tsarnaev that he had legal counsel available to provide pertinent legal representation if he chose to, prior to being presented in court and appointed. It is the practice of many public defender offices in CT to fax letters to or call police departments when they know suspects are in custody and may be questioned. State v. Stoddard.

The guilt by association exception to the Fourth Amendment

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now which one-a-youz ates that bone?

Tomorrow at 10:00am, the Connecticut Supreme Court will hear argument in one of the most important cases to come before them in a long time. The case involves the authority of the police to stop and detain individuals just because they happen to be on a public street alongside someone the police might be looking for. In other words, the authority to automatically detain the companion of someone who is a suspect. In fewer words: guilt by association.

The defendant’s brief is here [PDF], the state’s brief is here [PDF] and the reply brief is here [PDF].

First, some setup. The Constitutional provision at play here is the Fourth Amendment, which protects against “unreasonable searches and seizures”. Normally, in order to enter a home or to arrest someone, the police need a warrant based on probable cause. In rare circumstances, a warrantless arrest or seizure can also be made, but it also must be justified by probable cause.

“[A] police officer is permitted in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes if the officer believes, based on a reasonable and articulable suspicion that the individual is engaged in criminal activity, even if there is no probable cause to make an arrest.”

State v. Clark; see also Terry v. Ohio. What that means is that even if an officer is making a brief investigatory stop, he has to be able to articulate a reasonable suspicion as to why he believes that particular person is engaged in criminal activity.

The facts. Got it? Okay. So, in State v. Kelly, police officers were looking for a guy named Gomez. They had the most generic of descriptions of Gomez before they set out that day: 20-22 year old Hispanic male. 5’5-5’7, 130-150lbs, medium complexion and very short hair. Everyone whom that description fits, raise your hands. They wanted to serve a warrant on him for violating his probation. They didn’t know how he had violated his probation or what he was on probation for. Despite their considerable resources, they hadn’t even bothered to look at a photo of Gomez before setting out.

They got a tip from one of their informants that Gomez might reside in the area of Brown Street in Wethersfield. So off they went, with only the most generic of descriptions. They come upon two men, Burgos and Kelly. While Burgos is Hispanic, he apparently had very lengthy hair. Kelly is African-American. So, in no way could Kelly be mistaken for Gomez.

Yet, the two officers decide to stop the two men and displaying their badges, motion for them to come over. [Under Connecticut state law, a broader definition of seizure applies than under the Federal Constitution - meaning we have greater protections. So a person is seized when a reasonable person would not feel free to leave a police encounter. State v. Oquendo.] Burgos asked “what for?” and Kelly said “I live here”. The police continued to order the men to come to them at which point they both took off running. For some reason, the police abandoned their chase of Burgos-who-they-thought-was-Gomez and focused on Kelly. They say him drop a baggie of something and he was eventually apprehended and charged with possession of cocaine.

The argument Kelly raises on appeal is essentially this: if, as described above, the police need particularized and individualized suspicion to infringe on someone’s Fourth Amendment right and the only reason they stopped him was because they were looking for Gomez, then his seizure and detention is in violation of the Constitution. The police admitted during the suppression hearing that they did not suspect Kelly of committing any crime when they stopped him and that they stopped him merely because he was walking next to the guy they thought they were looking for.

The State argues, however, that this violation of a Constitutional right is permitted because of the so-called “automatic companion” rule: that any time the police suspect that a person on the street is someone they are looking for or want to investigate, they have the authority to stop whomever else that person is with, in the name of officer safety.

The Appellate Court likened this situation to the line of motor vehicle stop cases in the United States Supreme Court, which has held that it is Constitutional for an officer to order a passenger out of the car during such a stop. Maryland v. Wilson. SCOTUS has also said it’s okay to detain passengers while the car is searched for contraband pursuant to a warrant. Michigan v. Summers.

Those cases, in my opinion, are quite different:

  • First, SCOTUS has carved out a very specific exception to the Fourth Amendment for motor vehicles due to their distinct nature. The automatic companion rule is not just an extension of the motor vehicle exception, but is another new comparable exception.
  • Second, passengers in a car are different than two people walking on a street. Passengers in a car are, by definition in some sort of companionship relationship together and, more importantly, it is physically impossible to stop a car and detain only one person inside while letting the others go on their way. That is not the case with two people walking on the street. It is far easier for officers to approach one individual – the one for whom they have reasonable and articulable suspicion or probable cause – while asking the others to step aside or go on their way. They are severable in a way that passengers in a car aren’t.
  • Finally, the motor vehicle cases presuppose that the entire car has been legally detained and then say that, once legally seized, to ask a passenger to step outside is a de minimis intrusion that is justified by officer safety. Here, that first step is at issue: is Kelly legally detained to begin with? The answer, of course, is no, unless you adopt the view that you do not need a specific particular individualized reason to stop him as long as he is with someone else whom you do have reason to stop.

The implications of permitting a rule whereby police can stop every person for whom they may or may not have reasonable suspicion and every companion in their immediate radius are frightening. One need only look at the allegations of racial profiling that have landed East Haven in trouble or the trial of the stop and frisk policies of New York City Police to know that permitting wholesale detention and seizure of people on inner city streets based on nothing more than “guilt by association” would result in, well…just look at these stats:

In 2010, New Yorkers were stopped by the police 601,285 times.
518,849 were totally innocent (86 percent).
315,083 were black (54 percent).
189,326 were Latino (33 percent).
54,810 were white (9 percent).
295,902 were aged 14-24 (49 percent).

In 2011, New Yorkers were stopped by the police 685,724 times.
605,328 were totally innocent (88 percent).
350,743 were black (53 percent).
223,740 were Latino (34 percent).
61,805 were white (9 percent).
341,581 were aged 14-24 (51 percent).

In 2012, New Yorkers were stopped by the police 533,042 times
473,300 were totally innocent (89 percent).
286,684 were black (55 percent).
166,212 were Latino (32 percent).
50,615 were white (10 percent).

If you think that’s a NYPD specific problem, look at these Philly PD allegations.

But it’s about more than all of that. It’s about the strength of our rights and the Constitution. Do we want an America where we can walk down the street and talk to whomever we want, without fear of being stopped by the police just because of the person next to us, even if they don’t suspect us of doing anything wrong?

Should we not require that bare minimum? If the police want to stop a person – any person – they should be required to say why they stopped that person that’s not “because he was talking to a drug dealer”? Talking to a dealer isn’t a crime. Our police forces shouldn’t have license to stop anyone they feel like without a suspicion that they are committing or have committed a crime. And, let’s be honest, that standard is absurdly low. Just look at their inept efforts to apprehend “Gomez” and how they bumbled into Burgos and Kelly instead. Was the stop of Burgos legal? How can we permit what happened to Kelly? And if this is permitted, what else will be?