In the decades since Terry, the Court has also made it easier to justify the suspicion needed for a warrantless stop. The Terry case arose after a veteran officer in Cleveland observed two men strolling back and forth individually, peering into store windows, then coming together for brief conversation, and peering again, then being joined by a third for more consultation. The officer knew the neighborhood, did not recognize the men, watched them case the stores for ten to twelve minutes, and finally approached them to ask their names. When they “mumbled something,” the policeman thought they might be armed, so he grabbed Terry first, patted him down, felt a gun, and then found a pistol on one of the others as well. State courts and the Supreme Court judged the frisks legal.
By 2000, a divided Court was endorsing frisks with minimal cause. In Illinois v. Wardlow, the justices split five to four in ruling that police could chase, seize, and search a man who did nothing more than run from them in a drug-trafficking area of Chicago.10 He was carrying a white plastic bag, which turned out to contain a .38-caliber handgun that he sought to have excluded as evidence. The bare majority held that his flight, plus the high-crime location, added up to a “totality of the circumstances”11 creating “reasonable suspicion” justifying the search.
Wardlow’s running man was close but not identical to the situation that Sergeant Neill faced when he saw those two teenagers walking away. The boys were walking, not running, and they weren’t carrying a bag. But they were in a high-crime neighborhood afflicted by drugs and guns, which was where Neill’s gun unit operated. The squad, carrying the macho nickname Power Shift because of the intense, perilous time of night it worked, never entered the affluent, largely white areas of Georgetown or Northwest D.C. It concentrated on Southeast and other sections where most residents were black and poor.
Under Wardlow, the rules here were different from those in wealthier, whiter parts of town; the Court had included this sort of neighborhood in the “totality of the circumstances,” and so had legalized a brand of profiling, ostensibly one based on geography and crime rates but producing targets by race and class. Yes, Neill conceded, there were probably plenty of illegal guns in Georgetown, but with a difference: The rich folks there weren’t using them to murder each other.
Neill greeted the boys politely: “Good evening, gentlemen.” Against the intimidation of four squad cars and seven cops, his courtesy struck an odd counterpoint. It was his practiced method, his seasoned play at finding a quick rapport within the sudden tension of a confrontation. It was designed to induce “subjects” to consent to the search, thereby waiving their Fourth Amendment rights and avoiding a constitutional test. And most of the time, it worked.
The teenagers were obviously no strangers to this kind of police muscle, and they seemed no more eager than Neill to step up to the line between their rights and his. Anyone who had read the Supreme Court decisions and followed the intricate arguments between defendants and the police might have thought that battalions of idealistic citizens were out fighting for their rights. Anyone with that view of America would have been stunned by what these hastily departing young men did next.
After Neill said, “Good evening, gentlemen,” they stopped. They raised their hands. Then they pulled up their T-shirts to show that no guns were tucked in their waistbands.
It was the last gesture that was most striking. Nobody had ordered them to lift their shirts. They did so as routinely as airline passengers remove their shoes. The decades of litigation through the courts had loosened the legal leash on officers until all the articulate calibrations of personal rights and police powers now vanished in a swirl and a rush. Even if these young men had studied the case law, they could not have been sure that they had provoked “reasonable suspicion,” and the Supreme Court justices nearby would surely have disagreed among themselves on whether Neill could constitutionally have stopped and frisked the boys against their will.
The officers patted them down and found the reason for their move to leave—two small plastic bags of marijuana—but just confiscated the drugs and let the boys go on their way. The Power Shift was after guns, not weed.
So, the encounter became an invisible incident without a name or a case number, an erosion of the Fourth Amendment never scrutinized by a prosecutor, never challenged by a defense attorney, never adjudicated by a judge, never reviewed by the Supreme Court—but an episode nonetheless, an unrecorded police action that characterized life on the streets of a thousand poor neighborhoods in America.
Again and again, in the nights I traveled with Sergeant Neill, black men who were sitting on stoops, strolling on sidewalks, or standing on corners just lifted their T-shirts when a squad of policemen approached. Some tried to ingratiate themselves with the officers, joking with them, boasting that they had jobs as if to flash a badge of respectability that distanced them from local drug dealers and thieves. Others wore the sullen expressions of men long abused by surly cops and bosses and prison guards. The ritual gave the lie to the Supreme Court’s noble line in Terry: “This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs.” As I watched men raise their shirts without being asked, I wondered what the justices would have thought of the situation they had helped to create. No Supreme Court justice had ever traveled the nights with Sergeant Neill.
He was now fifty-two years old with twenty-six years on the force, a white man in a black part of town. He was not strapping, but he was sinewy, stronger and faster than he looked in his baggy blue police fatigues. He wore a sandy gray moustache and spoke his own dialect, a mixture of rural Southern and black ghetto, a patter as rapid as that of a pitchman selling a phony cure.
“How y’all this evening, gentlemen?” he would usually begin affably. Typically, his detail of four to six cars had wheeled into the block and parked at crazy angles in the street. Six or eight officers were approaching the “subjects.” Emerging into the lead would be Neill, such a familiar presence that some residents greeted him: “Gee Gee,” they’d say, or just “Gee.”
“We’re keeping the brothers alive in 2005,” he’d tell his makeshift audience on the street, and then after the turn of the year, he used a colleague’s suggestion: “Stay in the mix in 2006.” Subsequent years had subsequent rhymes, until he retired. Peppering the folks with chatty greetings and coaxing, he’d ask, as casually as if he were angling to bum a cigarette, “Got any drugs or guns this evening?” To the inevitable denial, he’d go on, “So, it’s OK if we search real quick?” If the pedestrian or the driver hesitated, Neill coaxed. “Let’s just get this done real quick, OK?” But he hardly waited for answers. The introduction to a pat-down—“For your protection and mine, OK?”—was less of a question than part of a monologue, and a second of silence between the question and the search was deemed consent. By this standard, Neill prided himself on being able to talk just about anyone into permitting a search, and if there is voluntary consent, then the search is legal even without a warrant, probable cause, or reasonable suspicion.
“You know, the citizens have a right not to be searched,” he told me one afternoon before he hit the street. “You know,” he repeated with the insistent lilt of indignation that a civil liberties lawyer might use, “they have a right not to be searched. If they tell you no, you don’t have any of the indications that there’s guns or drugs in the car, then no is no, and you gotta let ’em go.
“I’m sure we’ve all been on dates where, you know, you try to get a kiss and she says no and then you wait a little while and try to kiss her again and she says no again, and then finally she says, ‘OK.’ No isn’t really no. So sometimes you talk to these guys who said no. ‘Well, you said there was nothin’ in the car, right?’ The guy’s like, ‘Yeah.’ ‘Well, if there’s nothin’ in the car, why can’t I search? You know, what’s the problem?’ You know, you kind of look at the guy like, what’s up?” And that works? “Yeah, a lot
of times.”
About 9 p.m., the officers of the Power Shift, some white, some black, some Latino, strolled out of First District on Fourth Street SW, just three blocks from the U.S. Department of Education, and gathered among their squad cars in a nearby parking lot, smoking and joking. They were not rookies. Most were seasoned enough to seem relaxed, although they were about to go hunting in darkness for deadly weapons. When Neill arrived, they mounted up and headed out.
In their lingo, the police officers wouldn’t just look around. They’d “peep the bandits.” They wouldn’t pull over a car. They’d “cut shorty”—swerve in front to cut off the vehicle. If they set up a checkpoint for ostensible safety checks while looking for guns, they’d “pop the block.”
The first stop, to peep the bandits, would be through a couple of alleys off K Street SE, leading into a courtyard among the apartments of a public housing project, Neill explained. “That’s a good spot. It’s where I like to start. I got three guns there.”
The courtyard was full of kids and families relaxing in the summer evening, barbecuing, holding a large birthday party. They gave no cheerful greetings when six patrol cars drove in from all sides and jump-outs flowed through their festivities, but they seemed unfazed, as if this happened every other night. Officers selected a few young men for pat-downs and came up with nothing.
“They used to call guys on the other side on cell phones and tell them we’re coming,” Neill remarked.
“Too many people out here in the summertime,” said his driver, Officer Matthew LeFande, who’s a lawyer as well as a cop.
“In wintertime, it’s better ’cause people are in their cars,” Neill added. Searching cars has its own legal rules, but if you can get somebody for a traffic violation, you can gaze into the passenger compartment while checking his license and registration, and if you see anything suspicious “in plain view”—an open drink that could be alcoholic, for example—you might get consent or have probable cause for a full search.
The Power Shift was quick and efficient, focused and fast. Four squad cars careened to a stop beside a black man in a football jersey. Neill frisked him and found nothing. In another courtyard, three men sitting on a stoop were approached and patted down. Nothing. “Stand up, let me check, bro,” Neill said to another three on another stoop. “No guns or drugs?”
The indignant answer came from one: “No, we don’t got no guns or drugs.” He put on a disgusted face at the outrageous suggestion. Neill and a couple of colleagues patted them down, running their hands over and under their arms, along their sides, squeezing lumps in their pockets, down the inside and outside of their legs. LeFande stood by, cradling a shotgun over an arm, like a prison guard making sure inmates in the chain gang didn’t run off from their highway jobs.
Walking to and from their cars, the cops took little detours to peer into bushes, along walls. “We were told they keep the guns in the alley,” Neill said. “We ain’t never found them.”
Suddenly we spotted a sedan stopped in the middle of the street, a black woman standing nearby. “Baby, got anything in the car?” Neill asked. He and LeFande looked with flashlights through the windows but didn’t search, just checked her license and registration. Blocking traffic is arrogant, a way of stating your status, Neill said as we pulled away. “You can’t do that unless you got a gun in the car.” But the Power Shift almost always let “girls” go without a search; Neill played the odds, and the odds were that the guns were with the men. When we cruised up beside an expensive-looking white sedan, Neill saw that the driver was a woman and moved on.
Neill’s team profiled vehicles as well as people. If they spotted something expensive—a Cadillac, a big SUV—or the opposite, a broken-down old car, they’d try to find some minor violation to excuse a stop: tinted windows, decorative lights, a hanging air freshener blocking vision, all infractions of the D.C. code, designed to give cops maximum latitude to investigate suspicious drivers. In fact, the Power Shift carried a handy tool in the search for guns: a tint meter. When the edge of a car window is inserted into a groove, the meter displays the percentage of light getting through. The law requires at least 70 percent for side windows in the front, 50 percent in the back.12
Next came a demonstration of how the Power Shift stopped vehicles in these poor, black neighborhoods—nothing as tame as approaching from behind with flashing lights and a siren. LeFande followed a white Cadillac as it turned a corner and slowed at the next intersection. Then he cut shorty, hitting the gas, wheeling around in front, and blocking the vehicle. All the while, Neill was chattering on his handheld radio, instructing his squad on how to converge on the Cadillac.
Inside, a black man sat smoking a cigarillo and trying to look casual. Neill leaned through the driver’s window, chatted him up while looking around the passenger compartment for anything “in plain view.” Six patrol cars pulled up one by one to fill the block, but the driver seemed to stay cool.
LeFande, standing aside with me, offered a running commentary. Neill was hovering to restrict the driver’s movement, he explained, and other officers needed to stay out of the “kill zone,” where a bullet could reach them should the driver pull a gun. It’s best to put a vehicle, preferably the engine block, between you and the subject. Notice, LeFande said, how the spotlights and headlights from behind are designed to reflect off his rearview mirror into his face to place him under stress and destroy his concentration. “You see,” LeFande said, “he’s trying to find his documents, but he can’t see. He’s under stress.”
And in this atmosphere a driver is supposed to make an uncoerced, voluntary decision on waiving his Fourth Amendment rights. Having created stress, Neill tried to read the level of nervousness and make his judgments accordingly. When he asked for consent to search the white Cadillac, he told me later, the driver came back sharply: “You got probable cause?”
“I said, ‘I don’t have probable cause. I’m asking your permission,’ ” Neill reported.
“I don’t give it,” the driver replied, according to Neill. So Neill tried to soften him up. He got talking with him about his Cadillac, what year it was, how he had maintained it so well, while another officer took the man’s license back to a patrol car equipped with a computer system called WALES, the Washington Area Law Enforcement System, which taps into a criminal database to check for outstanding warrants. The driver came up clean, so Neill let him go with a cheery farewell and a “Have a good evening.” He didn’t think he missed anything by not searching. “He was too calm. He wasn’t nervous.”
How the most upstanding citizen, blinded by spotlights and surrounded by cops, could seem anything but nervous was a mystery to me, but Neill was sure he could tell. “If I ask him the questions, ‘Are you carrying any guns or drugs?’ and he immediately breaks into a sweat, that’s a clear indication that he has a weapon and he may get to that weapon, and what you want to do is—you’re allowed to protect yourself,” Neill said. Indeed, the line of cases from Terry is predicated on a safety concern: that an officer should not have to endanger himself by refraining from a search if he believes the subject is armed.
“We take it instinctively,” Neill said. “You’re in a situation, you can kind of get that hair or chill coming up your back. Kind of like, your caution is aroused for whatever reason. And so it’s hard to explain that situation in paperwork. And then come to a jury and also explain the same thing?” He shrugged at the impossibility of conveying the nuances of a policeman’s labors to a layman. “While people may want you to do your job, they may not necessarily want to know how you do your job.”
Some judges think Neill’s telltale signs of gun possession are enough for reasonable suspicion, others do not. Those keen to expand police power may credit a cop’s perception of someone’s jitters. But the opposite view was taken by the federal appeals court in the D.C. Circuit, which ruled in 2007 that suspecting a person of carrying a gun “must be based upon something more than his mere nervousness. A person stop
ped by the police is entitled to be nervous without thereby suggesting he is armed and dangerous or, indeed, has anything to hide,” the court said. “Were nervous behavior alone enough to justify the search of a vehicle, the distinction between a stop and a search would lose all practical significance, as the stop would routinely—perhaps invariably—be followed by a search.”13
Cops are nervous, too, since 109 of the 578 officers murdered nationwide from 1999 through 2009 were killed during traffic stops.14 The police, and even some of their targets, tend to see a search as defusing danger. “The frisk doesn’t just protect the officers,” Neill said one day. “It also protects the person you’re friskin’ because you eliminate the possibility that they may have a weapon so you can relax a little bit more. You know, it’s for their protection and our protection, ’cause we don’t want to be standing there talking to an armed suspect and have to worry about gettin’ shot or havin’ to shoot somebody. You don’t want to—you never want to have to shoot anybody. But sometimes you have to.” Neill had done it twice, once wounding a fleeing man who raised a gun, once killing an unarmed man high on PCP who tried to carjack Neill’s vehicle. So, the frisk had become standard operating procedure.
The Rights of the People Page 8