“Bad Search” Doesn’t Mean “Bad Cop”
In the post above this one, I discuss the fact that criminal cases are sometimes rejected due to bad police searches. This doesn’t necessarily mean that the police are arbitrarily disregarding people’s rights.
Many people think it’s all very simple: there are clear lines, the police know what they are, and they simply choose to cross the line on a routine basis.
I don’t think that’s the case.
Most of the time, when a search is “bad,” police believed that the search was “good.” In my experience, the police generally try to stay within the bounds of the Constitution. But Fourth Amendment law is very complex, with all sorts of arbitrary lines. Sure, you can search the car, but can you search the container inside the car? Can you search the trunk? Can you search containers in the trunk? Can you order a passenger out of the car? Can you pat her down? Can you reach into her pockets? Can you search the passenger’s handbag? Does it matter whether she left it in the car, or still has it on her shoulder when she exits?
There are answers to most of these questions, and police officers are trained on these issues. But they aren’t lawyers, and situations come up that aren’t clearly covered by what they’re taught in class. Lawyers can sit in their chairs, pull a book off a shelf or punch a case up on a computer, and determine whether a judge is likely to toss this case based on a particular set of facts. But even we must sometimes resort to the books.
A cop in the field doesn’t have that luxury. He has to make a decision: can he take this action or not?
If he makes the wrong decision, on a case where I would have had to look up the answer in a book, that doesn’t make him a bad cop.
Doesn’t it strike anyone as at least passing strange that if an innocent citizen brought a 1983 civil suit claiming an unconstitutional search, an officer would be entitled to qualified immunity and dismissal if his or her conduct, though unconstitutional, was “reasonably mistaken,” but if evidence or contraband is found in that same situation it is suppressed in a criminal trial? So with precisely the same search, a criminal would have the evidence suppressed, but an innocent person would have his lawsuit thrown out. Why, then, shouldn’t a suppression hearing in a criminal case function in exactly the same fashion as a qualified immunity hearing, and if the officer would be entitled to qualified immunity and dismissal in a civil suit, then the suppression motion is denied and probative evidence is not excluded in a criminal trial? Wouldn’t that make good sense?
tbaugh (4b527b) — 6/21/2006 @ 10:33 amIsn’t there even a good faith exception to the exclusionary rule?
actus (ebc508) — 6/21/2006 @ 10:37 amOnly for search warrants; not a free-standing “reasonableness” good-faith exception.
tbaugh (4b527b) — 6/21/2006 @ 10:53 amthe constitution and bill of rights were written by people who feared, and sought to limit the power of the state. i support a rule which denies the state the fruits of unconstitutional conduct. anything else and we might as well not have a bill of rights.
assistant devil's advocate (85066e) — 6/21/2006 @ 11:18 amThe cops, like everyone else, don’t know all the rules, because the Supreme Court NEVER finishes its task of making up new rights that benefit no one but the criminal. It wasn’t until Escobedo in 1963 that they discovered the “right” to have an attorney while being questioned by the police. In the Miranda case of 1966, they suddenly discovered the “right” of free counsel. Justice White said in his Miranda dissent, “In some unknown number of cases the Court’s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him.” Yeah, but that’s not the point, Justice White. The point is they will commit their next crime in my neighborhood, not in yours.
Karusa (1a0c0a) — 6/21/2006 @ 11:52 amMore on tbaugh’s point: In qualified immunity cases, there’s at least a modicum of common sense. Here’s a paragraph from Wilson v. Layne, 526 U.S. 603 (1999):
So the cop does the best he can and guesses wrong. No liability, so long as reasonable officers could disagree about whether the search was lawful — the search was reasonably unreasonable.
Attila (Pillage Idiot) (88e3e3) — 6/21/2006 @ 11:55 amI agree with Patterico that “Bad Search” doesn’t neccessarily mean “Bad Cop”.
However, there are only two methods I see that act to limit Bad Searches. One is legal action against the officer. Obviously, we don’t want to directly punish the guy just for making a bad call. So, we are left with the Exclusionary rule — which may let criminals get off, but doesn’t punish the cop directly.
There must be _SOME_ deterrent against Bad Searches, otherwise Cops _will_ become Bad Cops just by deciding “well, I’m not sure if this search is really OK, but there’s no downside”, which pretty much makes a laughingstock of the 4th Amendment.
If you do not support punishing the cops for Bad Searches, and you do not support the Exclusionary Rule, what deterent do you support, Patterico?
Dave (6001a6) — 6/21/2006 @ 2:58 pmThere are technical cases involving fine lines of the extent of a legitimate search vs. an illegal one, as Patterico illustrates. But that is not the typical case in practice.
Cops lie. Particularly about probable cause.
e.g. Police report says that cops drive up on a gang party in a park near La Brea and Exposition. Kids take off, and defendant drops a handgun as he begins to flee. Cops detain kids after chase 50-100 yards north of the parking lot.
My client tells me the cops roll up from the field side of the park and he and his friends go and sit in his car in the parking lot. Detained there. Cops find handgun hidden under the hood. Question everyone to give up the owner or all will go to jail. All three of the others support his story.
Suppression hearing: Cop — Yes, police report is complete and accurate. Yes, kids ran. Yes, defendant dropped handgun as he began to run. Yes, ran from parking lot. Yes, ran northbound. Yes, were detained 50-100 yards north of the lot.
Problem — I had been to the scene. I took photos. There was an eight-foot fence directly adjacent to the parking lot extending unbroken all the way for blocks. To go even five yards north, the kids would have had to bore through the fence.
Cops lie, when they think they won’t get caught. Not all, but many. Not all the time, but often.
And D.A.’s know it.
And judges know it.
nosh (d8da01) — 6/21/2006 @ 10:21 pmSo, what happened? Did you win the hearing?
If so, write that guy who wrote the LAT op-ed and tell him there’s one more example of the exclusionary rule not being dead.
P.S. I gotta say, it seems like an odd way for the cops to lie. Why would they make up a story that would require the D’s to run through a fence? They know DA’s come out to the scene before trial.
You know when that fence was built?
Patterico (50c3cd) — 6/21/2006 @ 10:36 pmThere are times when the technicalities of the law require fine judgments as to whether a search is valid or unlawful. But those cases are atypical.
Cops lie. Particularly about probable cause.
Police report says cops on patrol see defendant staddling a bicycle in a driveway. As they approach in the police car, he drops the bike and runs down the driveway towards the backyard. As he gets to the backyard basketball hoop and they follow up the driveway, he drops a set of brass knuckles. They detain and arrest.
Defendant says he was in the backyard playing basketball with a couple friends. Cops roll up on them down the driveway, have him assume the position, and seize the brass knuckles in his pocket.
Suppression hearing — Cop #1 — Yes, police report is complete and accurate. Yes, we saw Defendant in driveway. Yes, as we approached he dropped the bike and ran down the driveway. Yes, near the basketball hoop he dropped the brass knuckles.
Me — He was straddling his bike in the driveway? Yes. He dropped the bike in the driveway? Yes. You drove down the driveway following him as he fled? Yes. Musta really busted up the bottom of your police car. What do you mean? Driving over the bike, it is a very narrow driveway, musta crunched pretty bad, huh? No, he dropped the bike a little to the side. Which side? The left side. The north side? Yes. The north, to the left as you made your right turn and pulled into the driveway? Yes.
Cop #2 — So musta really crunched your vehicle when you drove over it? Uh, no. How is that? Did you drive to the side? Yes. Me: He dropped the bike on the left side, the north side of the driveway, didn’t he?
Now here’s the game. I’ve given him the “right” answer, the one his partner gave. But he thinks I’m trying to trip him up. Cop #2 — No, he dropped it to the right side.
Cops lie. Not all of them. Not all or even most of the time. But when they think they can’t be caught, they lie. Under oath. Committing perjury.
nosh (d8da01) — 6/21/2006 @ 10:37 pmSo what happened in that hearing?
Patterico (50c3cd) — 6/21/2006 @ 10:38 pmOooh — by the way?
Defendants lie.
Not all of them.
But most of the ones who testify do.
Patterico (50c3cd) — 6/21/2006 @ 10:41 pmPatterico — Re: #9 — Gun possession was a misdemeanor in that case. Suppression hearing in a pretrial hearing before trial. No, D.A.’s and City Attorneys rarely go to crime scenes, unless it really is a serious felony or during an actual jury trial.
This park was near La Brea and Exposition, where there are the old unused train tracks. The fence had been there for years, probably still is.
Suppose you are elevated to replace one of the last remaining “liberal” judges in L.A. Do you grant the motion?
nosh (d8da01) — 6/21/2006 @ 10:44 pm#12 — And you guys ALWAYS argue that “The Defendant is lying! He’s got every motive to lie.” But the typical defendant knows zilch about the law or how he can lie to help.
Cops lie. But you guys ALWAYS argue that “Officer Smith has no motive to lie. He is just putting his very life in danger every day to protect the community against people like the defendant.”
nosh (d8da01) — 6/21/2006 @ 10:47 pmBy the way, P — Happy Summer Solstice. Good evening to find some great Stonehenge photos and play Dark Side of the Moon, some interesting live version.
Aren’t ya glad to have me back!!
nosh (d8da01) — 6/21/2006 @ 10:49 pmSuppose you are elevated to replace one of the last remaining “liberal” judges in L.A. Do you grant the motion?
In real life, of course, I would have to hear the actual motion and testimony of all the witnesses.
In your purely hypothetical situation, where the cops are caught lying and there is no explanation for it, then yes, I grant it.
I have to add the caveats because I don’t know whether, in real life, there is another side of the story. And I’m not going to have you marching around telling people that I think you should have won in some real life motion, or that I think the cops are lying in your case. I don’t know who you are and I don’t know if you’re giving me the full story.
Patterico (50c3cd) — 6/22/2006 @ 9:32 am#12 — And you guys ALWAYS argue that “The Defendant is lying! He’s got every motive to lie.” But the typical defendant knows zilch about the law or how he can lie to help.
You act like it’s somehow shows us to be dishonest because we “ALWAYS” make this argument. This is because you apparently misunderstand the role of the district attorney.
If we bring someone to trial, we think he’s guilty. If we think we can’t prove him guilty beyond a reasonable doubt, we won’t bring him to trial.
So if we bring him to trial, and he gets up and says he’s not guilty, of *course* we’re going to argue that he’s lying to save his skin.
Defendants always have a motive to lie. That doesn’t mean they always lie. But if we determine that they’re telling the truth, and they’re not guilty, we won’t take the case to trial.
So of course we *ALWAYS* make that argument at trial.
I’m sure you’ll scream that this isn’t how we operate. Well, it’s how *I* operate, and I strongly believe that it’s how most other D.A.’s do business as well.
Patterico (50c3cd) — 6/22/2006 @ 9:39 amSo what happened with your cases described above? Are you going to tell us?
Patterico (50c3cd) — 6/22/2006 @ 9:40 amCase described in #8: Judge, ex A.G.’s office, known as conservative, now on Ct. of Appeals — granted motion to suppress.
Case described in #10: Judge, known as more liberal, denied the motion, saying he didn’t see how the dropped bike was relevant. Missed the point — there was no dropped bike, kid was approached, detained and searched far back of the driveway.
Point is, cops lie. And not because they don’t understand technicalities. Because they can get away with it.
[Cops are humans. Some humans lie. Actually, most do, but only some under oath. What you say happens at times — probably, as you say, more often for probable cause. But I think it’s rare. Defendants lie far, far more. Do you deny it? — P]
nosh (d8da01) — 6/22/2006 @ 12:42 pmActually it is illeagal to search a car without warrant, for now.The reduced expectancy concept we have today has broadened police powers to conduct automobile searches without warrants, but they still must have probable cause to search a vehicle and they may not make random stops of vehicles on the roads, but instead must base stops of individual vehicles on probable cause or some ”articulable and reasonable suspicion”, of traffic or safety violation or some other criminal activity.Police are permitted to search containers or packages found during a legitimate warrantless search of a vehicle. The container must be one that might reasonably contain evidence of a crime for which the officer had probable cause to search the vehicle in the first place. In 1982, the Supreme Court ruled that the police do not need a warrant to search closed containers found in the passenger compartment of an automobile whose occupant is under arrest.If your car is impounded, the police are allowed to conduct a thorough search of it, including its trunk and any closed containers that they find inside. This is true even if your car was towed after you parked it illegally, or if the police recover your car after it is stolen.If the officer has a reasonable suspicion you are armed and dangerous, she can frisk (pat down) you. Similarly, if the officer reasonably suspects that you are involved in criminal activity she can also perform a pat down.Again with reasonable suspicion all passengers are subject to exit the car, and a search of their belongings is legal as long as reasonable suspicion exists. Reasonable suspicion is a standard, more than a hunch but
carey (ac820d) — 1/7/2007 @ 1:07 pmconsiderably below preponderance of the evidence, which justifies an officer’s investigative
stop of an individual upon the articulable and particularized belief that criminal activity is
afoot.I believe I answered all your questions pertaining to my state Texas. Im definetly not a cop, and no experience being a lawyer, however it took me a mere 10 mins. to answer your questions. And you suggest these questions are too unclear, vague,and just too difficult for a cop to set as a standard?I’m scared of people like you, whose limited understanding of our rights has resulted us the police state we are headed to. No I don’t think all cops are bad per se, but most cops are above the law and conduct themselves accordingly. Actuallly it’s us the American peolple who are to blame for our ignorance, fear and apathy as we watch our civil libirties wither away.