Being a libertarian I pay close attention to legal issues affecting individual freedom vs. police procedures. Obviously, my opinion doesn’t just come from a book or a classroom; it comes from working the streets for nearly two decades now. I don’t simply talk about the U.S. Constitution and the Bill of Rights; I have to apply them every day in what I do and don’t do. It’s easy to talk about how to balance the rights of suspicious persons with the police officer’s safety in theory; it’s much harder to apply it in practice.
In the most recent Law Enforcement Digest, February, 2010 issue, published by the Washington State Attorney General’s Office to provide practical information to the law enforcement community, the publisher precedes the issue with an ominous note: “Readers brace yourselves. This month’s LED delivers more troubling news from the federal and state appellate courts than any LED since the LED became a monthly publication in 1979.” Recent court rulings will work to hobble law enforcers once again.
Too often government treats individuals like children, creating rules that ostensibly look out for them; I’d prefer they educate rather than mandate. And with that let me start with the Police Academy. When I was in the academy, many of the methods and procedures I was taught were considered “good police work,” now many have been struck down either at the local, state, or federal level. There’s a notion that judges are hesitant to too strictly regulate what officers have to do on the streets, based on the situation as it is unfolding, from the bench.
However, I’ve seen over the years this reluctance seems to be fading. I could go on for pages (don’t worry, I won’t), but for now I’ll limit my comments to one situation. What’s an officer to when he sees someone wandering through an area at night, and that officer’s responsibility is to protect the neighborhood? Well, absent reasonable suspicion to contact and detain the individual for further investigation, an officer is taught that, as with any person, he can always simply walk up and talk to the person. The person may choose not to talk and to walk away, but then again, if he is a criminal, he just may be stupid enough to talk himself into getting arrested.
The courts have previously ruled that an officer may make this type of “social contact” so long as a reasonable person would feel they are free to leave. Things like number of officers, blocking the individual’s path to leave, holding a weapon such as a baton, or activating police car emergency lights, are seen as causing a person to believe they are not free to leave.
In this particular case an officer noticed a man walking through a neighborhood at about eleven at night. The officer drove past the man, parked his patrol car in a driveway out of view, and then walked to meet the man. The officer asked if he could talk to the man and stood on the grass off to the side of the sidewalk. The man said, “Yes.” The officer asked where the man was coming from. The man said, “My sister’s house.” When the officer asked the man where his sister lives, the man said, “I don’t know.”
I don’t know about you, but even if I didn’t wear a badge, I’d think this was a wee suspicious. Now, at this point I should remind you that this guy, the one coming from his “sister’s house,” is totally free to end the conversation and walk away. After all, the officer asked if he could speak with the man, he did not command him to stop.
The officer also noticed the man appeared quite nervous, was twitching, and had bulges in his front pant’s pockets. About this time another officer happened to drive by. Seeing the officer was alone, he parked and joined the two men, standing eight feet off to the side. Officers often do this for officer safety reasons.
The officer then asked the man if he could frisk him for weapons. If a social contact begins to build into something more suspicious, but still not quite at the level of actual criminal activity, courts have agreed that officers may ask to pat down individuals for their safety. I often explain to the person I’ve contacted in similar situations that if I can pat him down, and can feel comfortable that he’s unarmed, then he is free to keep his hands in or out of his pockets to his content. Remember again, the guy still could have said, “No,” and walked away. The man again said, “Yes.”
When the second officer felt a hard cylindrical item in the man’s pocket during the pat down he asked the man what it was. The man said it was his “glass,” and then “it’s my meth pipe.” They arrested the man and in a search incident to the arrest they found the crack pipe and some crystal methamphetamine.
After a conviction, appeal, and having been upheld on appeal, the question put to the Washington State Supreme Court, “was Harrington unlawfully seized without reasonable suspicion at the point when the officer asked for Harrington’s consent to a frisk?” The justices ruled unanimously, yes.
So, let me ask you, what’s an officer to do? He sees a guy out late at night, he’s walking down the street—maybe in front of your house—(oh, and I don’t have to tell you how Meth-Heads make their money, do I?) The cop’s job, when he’s not answering 911 calls, is to anticipate and deter criminal activity if he can. The officer knows he has the right to contact anyone on a public street, just like anyone else can, and attempt to gain voluntary compliance.
Now, we’re not talking about some form of blatant harassment; this isn’t someone walking down the street at 3 PM, this is an hour before midnight. So, the officer decides to contact the person to see what’s up. The guy could have declined the officer’s request to talk and simply have walked away. It happens, it’s happened to me several times. It’s not the officer’s fault if the, in this case, criminal isn’t savvy enough to know this. He should educate himself, not depend on paternalistic courts to “watch his back.”
The man repeatedly putting and pulling his hands in his into and out of his pockets, the officer doesn’t want to take a chance that one of these times the guy’s going to pull out a knife or gun, so he asks to conduct a frisk. I should mention here a frisk is limited to patting down the person on the outside of their clothing; no intrusion into pockets. Despite the man saying yes, giving consent to being searched, and neither officer having told the guy he couldn’t leave, the court ruled the officers had legally “seized” the man at the point of the frisk “request.”
By seized the court means a reasonable person doesn’t feel free to leave. I’m thinking this guy was very acquainted with police procedures from past experience and he certainly should have walked away. But as cops are fond of saying, we don’t catch the smart ones.
I understand the freedom argument here, but the court seems to be going too far. Whether or not the individual knows for himself he has the right to walk away is not the officer’s problem, it’s the individual’s. The court’s preempting the individual’s right to be stupid and admit criminal activity to the cops seems stepping beyond its purview.
Think about the ramifications: So now an officer, who during a social contact becomes suspicious that a person may be armed, instead of soliciting the person’s consent to frisk him, should live with the threat, or actually turn around and walk away—turning his back to a person he’s determined may be armed? The good justices have just shown why the bench is a poor substitute for the streets to make this type of judgment.