The Rights of the People

by David K. Shipler

  * Italicized note numbers indicate that significant information beyond sourcing can be found in the corresponding notes at the end of this book.

  CHAPTER TWO

  Another Country

  I don’t think that there’s much left of the Fourth Amendment in criminal law.

  —Federal District Judge Paul L. Friedman

  There is no Fourth Amendment for most of our clients.

  —Tony Axam, assistant federal public defender, Washington, D.C.

  FRISKING PEDESTRIANS

  DEEP IN THE NIGHT, no more than a mile or two from the Supreme Court, a wiry police sergeant named G. G. Neill went hunting. He wedged a 12-gauge shotgun between the front seats of his patrol car, cradled a handheld radio on his knee, and watched closely for telltale reactions by black men as his driver cruised through their impoverished neighborhood.

  He and his squad traveled openly, not undercover. They wore uniforms and drove marked police cars, trying to trigger behavior that Neill could read. He was looking for guns, and he knew that men concealing guns often betrayed themselves when they saw cops sweep into view.

  It was early June, the air was cool and seductive, and the pleasant weather had lured people from their decaying apartments into the darkened streets. As Neill’s car slowed down on a somber block, two young men began to walk away—a simple act and a sign of guilt, he believed. He said a few words into his radio and got out. Three other patrol cars materialized, and six other officers, “jump-outs” in police slang, spilled onto the street.

  The pair of men looked younger now, like scared boys in their late teens. Neill strode in their direction and wished them good evening.

  What happened next was a portrait of the Constitution’s standing in the hidden corners of society—less than a five-minute drive from where the Supreme Court justices sat, but so far from their world of sterile legal briefs and abstract oral arguments that it might have been another country.

  In a string of cases beginning with Terry v. Ohio in 1968,1 the Court had been sketching blurry lines defining how far police could go before hitting the limit of “unreasonable searches and seizures” barred by the Fourth Amendment. For fast-moving encounters that were often confusing and dangerous, the justices had loosened the amendment’s strict requirement that police have “probable cause” to justify a search, finding instead that if “reasonable grounds” or “reasonable suspicion”2 existed to believe that someone was armed, officers without a warrant could, on their own authority, stop and frisk him on the street. This was justified on safety grounds, for the cops’ own protection.

  In so doing, the Court interpreted the Fourth Amendment as if it were not a single sentence but rather two separate parts: the clause requiring probable cause for a warrant, and the clause barring unreasonable searches. If a search was once “unreasonable” unless the police could show “probable cause,” that was no longer the case. Terry disconnected the two, setting in motion an accelerating redefinition of “unreasonable” to fit the crime-fighting purposes of the day.

  To a couple of young men standing on a sidewalk, the difference between “probable cause” and “reasonable suspicion” may seem slight, but it has moved the bulwark that protects the citizen’s right to be free of the state’s prying eyes. The Court has defined “reasonable suspicion” as stronger than a hunch but a good deal weaker than the “probable cause” demanded by the authors of the Constitution.3 Probable cause requires a preponderance of evidence, “a fair probability that contraband or evidence of a crime will be found,” the justices ruled in 1983.4 By contrast, reasonable suspicion requires only “some minimal level of objective justification for making a stop,” the Court stated in 1989,5 and the “minimal level” has become an expanding loophole allowing Sergeant Neill and other law enforcement officers to look in the pockets, cars, and purses of people on the margins of society.

  Patting down nonwhites on the streets is the crude, intimate version of a wide enhancement of police power, a broad intrusion on personal privacy that has grown technologically sophisticated as government has probed computerized medical records, e-mail messages, credit-card transactions, financial transfers, and other digital information. Whether the search is an antiseptic invasion by electronic gadgets or a midnight frisk by groping hands, the individual in America is losing a precious ingredient of a free life, especially in the twilight wars against terrorism and in the deep night of mean neighborhoods. Those are the places, most distant from those who make the rules, where the limits on police action grow less and less visible.

  When Terry was decided, the lone dissenter on the Court, Justice William O. Douglas, worried about an oppressive result. “The term ‘probable cause’ rings a bell of certainty that is not sounded by phrases such as ‘reasonable suspicion,’ ” he warned. “If the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can ‘seize’ and ‘search’ him in their discretion, we enter a new regime.”

  Terry’s looser standards applied only to a stop and frisk, not to the search of a house. So, a policeman acting on mere “reasonable suspicion” could now pat down a pedestrian with less evidence than the stricter “probable cause” that was still required for a judge to sign a search warrant. This struck Douglas as a chilling irony. “To give the police greater power than a magistrate is to take a long step down the totalitarian path,” he declared. “Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment.”

  No such amendment has been needed in the gritty life of the streets. So common have warrantless searches become in the neighborhoods worked by Neill that when the “jump-outs” arrive, certain blocks and courtyards are suddenly torn away from the fabric of American liberties and hurled into scattered moments of “a new regime.”

  Neill had nothing close to probable cause when he saw the two young men walking away, but he felt reasonable suspicion that they had something to hide. They were doing exactly what he had described during a class I had watched him teach at the police academy three weeks earlier, so he flashed me a foxy grin. “Just like training,” he said.

  In the training, Neill and two detectives had shown videos and played roles to teach nineteen experienced officers how to spot clues that someone might be carrying a weapon. Race, an undercurrent, went unmentioned, although Neill was white, one of the two detectives was white, most members of the class were white, and their targets were generally black. On the street, though, race seems less of a divide than the line between officer and civilian: Black cops are perfectly capable of hassling black citizens.

  “A good policeman is what?” Neill began.

  “Nosy,” said one of the two black women in the group.

  “A good policeman is nosy,” Neill declared, making it sound like a motto that should be posted over the door of every precinct.

  “Anybody here ever chased a person with a gun?” asked one of the detectives, Curt Sloan. Nearly all raised their hands. “What’s the first thing they do?” Grab it, several said. Yes, Sloan noted: Even police officers unconsciously touch their guns a hundred times a day, although those guns are safe in holsters. Someone with a pistol tucked in his waistband is going to touch it much more often, adjust it, make sure it’s secure and accessible. Watch the hands. Figure out which is the dominant side: Wristwatches are usually worn on the weak side; a right-handed person usually smokes a cigarette with the right hand and begins walking by pushing off with his right foot, leading with his left. Over 90 percent of people are right-handed, so the right hand will touch the waistband.

  When the gunman walks, the instructors explained, his gun hand doesn’t swing as far from his weapon as his other hand, and the asymmetry increases with the speed of his gait, until, running, he’s holding on to the gun in the waistband. If he suddenly begins to run normally, both arms pumping identically, he’s probab
ly thrown down the gun. Look near the place where his running becomes symmetrical.

  “Crap games offer an excellent opportunity to spot individuals who are carrying firearms,” said a handout distributed to the class. “Because the participants bend over during the game, and stand after each roll of the dice, a loosely worn firearm will have a tendency to move. These subjects will be constantly attempting to turn from view to make the adjustment, and will also tend to pull their pants up constantly.”6

  Clothing can be a good tip-off, Neill and the others explained. A jacket with a gun in a pocket hangs in a lopsided way, the wrinkles and folds askew, the empty side’s fabric clinging to the front of the pants. The side holding the firearm hangs away from the trousers and swings like a pendulum when the gunman walks. A bag with a gun may tilt markedly in one direction.

  Look for clothing that seems designed to conceal a weapon, the class was told: a tailored shirt that’s not tucked in, a baggy coat too warm for the weather, a loose windbreaker over unmatching garments such as suit pants and tie, a belt around pants with no belt loops. Someone who wears only one glove may be keeping his gun hand bare for quick action.

  And watch the reactions when you arrive on a scene, Neill said. The guys standing on a corner may all turn to look at the guy with a gun, who may walk away or run. The gunman may turn one side away, if there’s a protrusion where he’s stuck the firearm. He may hold his girlfriend tightly against his weapon—Sloan happily demonstrated with a female officer—or lean on that side against his vehicle, or turn his gun side away during a pat-down.

  With that technique, Neill told me later, he saved his life in Iraq, where he spent a year as a first sergeant in an army reserve intelligence unit. A report that someone had thrown a grenade led American soldiers and Iraqi policemen to search the house of a man who struck Neill as uncommonly bold as he walked past four infantrymen. Neill stepped toward him. The man turned a side away and put a hand on his pocket. “I thought it was a grenade,” Neill said, “and I grabbed it, and as his hand was goin’ to grab it, my hand got underneath his hand, and I felt the grenade in his pocket, pushed him up against the wall, and the last guy in the infantry squad helped me secure him, and we got a couple of more grenades out of his house, some AK-47s and some currency, some powder to make the grenades hotter, some BBs to fill it up with more pellets. So in that instance the police work came in good.” He won a bronze star.

  In other ways, too, he transported tactics from Washington to Baghdad. “I was teaching the same thing to the guys who were teaching the soldiers, and also to my soldiers,” he said. “When you ride up the street, look for the guys outside to be moving.… Look for people to react to you, look for cars that try to cut into your convoys. And most importantly, look for those guys [who] start movin’ to the cars when you pull up—somethin’s goin’ on. They start runnin’ out of there when somethin’ pulls up, better start hittin’ the brakes, buddy, cause somethin’s gettin’ ready to happen.”

  In Washington, the class of police officers was told to make sure the pat-down was thorough. A black instructor, Detective Ali Ramadhan, assumed the frisk position with his back to the class and his hands on the chalkboard. “Check his hands. Take them off the wall. One guy had a derringer in his palm,” he said. “I could have been killed.”

  “In every cellblock in this city,” Sloan warned, “there’s been a gun making it to the cellblock. A derringer was found in the shoe of a guy in the cellblock.” An officer in the class told of a new model that folds, looks like a cell phone or a pager, and can fire four .22 rounds. Others had heard about it.

  The crotch is a favorite hiding place, Sloan told them. “Put your fingers between the belt and the waistband. He may say, ‘I’m sensitive down there.’ Well, aren’t we all. Or, ‘I have a colostomy bag.’ Well, don’t we all. ‘I just had surgery.’ Don’t let him bullshit you. You continue, no matter how much he runs his mouth. Do a good search.”

  Under Terry, a frisk is supposed to be brief and superficial, restricted to feeling outer garments based on the suspicion that there’s a dangerous weapon, not drugs or other criminal evidence. That led one young, well-spoken uniformed cop in the class to wear a puzzled look as he listened to story after story about doing pat-downs. “How is it you patted him down?” he finally asked.

  “For his safety and my safety,” said Ramadhan, using the standard justification.

  The young cop declared: “Under Terry v. Ohio you have to have articulated suspicion.”

  “I know he’s a drug dealer,” Ramadhan replied. “I know he’s got a gun. I pat everybody down.”

  “I’m not saying we don’t, and we all do,” the cop confessed. “But legally we can’t.”

  “If I’m in [mostly white] Georgetown and the guy’s in a business suit,” Ramadhan noted, “I’m not gonna pat him down.” It was an unusual admission to profiling. Later, I asked him if he really frisked everybody he encountered in the rough neighborhoods. No, he said, only when “something in the back of my head says danger.”

  Neill had another take on this. “Making a stop of cars in these neighborhoods, you’ll more than likely get a gun,” he told the class. It was a wild exaggeration, based on what I saw in my nights with his unit. “I ask them if they got drugs or guns in the car. What do they always say? ‘No.’ Then I say, ‘Can I search your car?’ Ninety-nine point nine percent of the time they say, ‘Yes.’ When they say, ‘No,’ I got to decide whether to search them anyway.”

  “Do you savagely search?” an officer asked.

  “We savagely search,” Neill replied.

  In effect, the Court has given permission for this, as summed up by the Metropolitan Police Department’s handout for the class: “For too long police officers have been trained to view the Constitution of the United States and its judicial interpretations as placing rigid restrictions on what law enforcement personnel can do on the street while shielding criminals from detection.… The members of the … Gun Recovery Unit have viewed the Constitution and its associated case law as a law enforcement sword rather than a shield. It is a sword because it provides police officers with a lesser standard than probable cause, i.e. ‘reasonable suspicion’ to better enable them to identify individuals who carry illegal firearms.”

  • • •

  I came away thinking that the Terry stop was morphing from merely protective into investigative. A federal narcotics prosecutor confirmed my hunch: “We’ve gotten now to the point where we can stop if we think they’ve got drugs only. It’s not necessary to have guns. Now it’s not reasonable suspicion that they’ve got something dangerous, but just reasonable suspicion.”

  This position is adopted by some conservative judges, true judicial activists, such as Brett M. Kavanaugh and David B. Sentelle of the United States Court of Appeals for the D.C. Circuit, who misstated Terry in a 2007 gun and search case as a way of giving police more latitude. After a pedestrian had reported being robbed by an armed man wearing a blue fleece, officers stopped a differently dressed man walking nearby, took him to the scene, and unzipped his outer jacket so the victim could see what he was wearing underneath. He was not identified as the robber, but an officer felt a hard object as he opened the jacket, and a further pat-down revealed a gun.

  Unzipping the jacket just to see the color of his shirt was upheld by the judges as legitimately investigative, a reading of Terry that reached beyond its original rationale. The police had neither reasonable suspicion that he was armed nor probable cause to believe that he was the robber, yet to bolster their argument, the judges distorted the meaning of a 1985 Supreme Court opinion, reading into an ambiguous sentence an expansion of Terry that the Court had neither rejected nor accepted. On appeal, they were slapped down by the full federal Court of Appeals in D.C., seven to four.7

  Rarely are judges so intellectually dishonest. Many more look scrupulously to precedent. Yet however precise their opinions try to be, in the real life of the street the Terry stop has gradually s
pread beyond its initial concept. Legally, officers still have to suspect someone of carrying a weapon to justify the search, but if the frisk turns up drugs instead of a gun, the drugs can be used as evidence provided the judge believes that the police followed certain rules.

  The key to expanding the scope of Terry frisks is the “plain-view” concept, devised in 1969 by the liberal Court of Chief Justice Earl Warren to end the common police practice of searching entire homes and offices when an arrest was made. In Chimel v. California, the Court overturned precedent and ruled that only criminal evidence “in plain view” could be seized without a search warrant.8

  Then, in 1993, the conservative Court of Chief Justice William H. Rehnquist stretched “plain view” into “plain feel.” As long as reasonable suspicion of danger exists to permit a stop and frisk to check for weapons, the justices held in Minnesota v. Dickerson, an officer who finds no gun but feels something that he immediately recognizes as drugs can seize them as if they were in plain view. The Minnesota Supreme Court had refused to allow the expansion, noting that a search using “the sense of touch is far more intrusive into the personal privacy that is at the core of the Fourth Amendment.” But the U.S. Supreme Court accepted the corollary. “We think that this [plain-view] doctrine has an obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search,” wrote Justice Byron R. White.9

  It was an unusual opinion, because even as the Court established the principle, it suppressed the evidence and overturned the guilty verdict against Timothy Dickerson, who had been spotted leaving a crack house by two Minneapolis police officers. When he saw their squad car, he quickly turned away into an alley, so they stopped him and patted him down. An officer found no weapon but felt a small lump. So far, so good, the Court decided. Then, however, because the policeman wasn’t sure what the lump was, he squeezed it and slid it around until he could tell it was crack cocaine; it turned out to be a plastic bag containing one-fifth of an ounce. If he had been able to identify the object immediately, the justices ruled, the evidence would have been admissible as plainly felt during a pat-down for a weapon. But his further manipulation, after he knew there was no gun, took the search beyond the bounds allowed in a Terry stop. Under the resulting opinion, “nonthreatening contraband,” if detected instantly by touch or smell during a Terry stop, can be introduced at trial. This has made it easy for the police to look for drugs by inventing a suspicion about guns and then displaying remarkable tactile ability. In such cases, the skeptical judge is a rare breed.