The Rights of the People

by David K. Shipler

  Patting down people in such circumstances gave Justice Antonin Scalia constitutional misgivings, suggesting that had he been on the Court when Terry was decided in 1968, he might have authorized the stop but not the frisk before a full arrest. “I frankly doubt,” he wrote in 1993, “whether the fiercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected, on mere suspicion of being armed and dangerous, to such indignity.”15

  Although the indignity of searches wasn’t mentioned by Scalia in 2008, when he wrote a landmark opinion on the Second Amendment right to keep guns at home, the ruling—if gradually expanded through litigation—could eventually reduce or eliminate such confrontations with the police on the street, while raising the dangers from firearms.

  It was the Supreme Court’s first comprehensive decision on the scope of the Second Amendment. The justices in District of Columbia v. Heller found narrowly, five to four, that the framers meant the right as an individual one, not restricted to members of state militias, as the minority believed. The Second Amendment was poorly written: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

  Parrying each other with intricate grammatical and historical arguments, the justices on both sides left a good deal open to further challenge. At first, the Court ruled only that people in a federal jurisdiction had the right to functioning guns in their own homes. Two years later, the same five-to-four majority applied the Second Amendment to state and local governments. The rulings left intact Washington, D.C.’s and other jurisdictions’ laws against carrying firearms on the street. “Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment,” Scalia wrote in Heller, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” This language was repeated in the 2010 opinion, indicating how far states could go in limiting gun possession.16

  The District of Columbia complied with the Heller decision by enacting a strict licensing law for guns at home. Firearms in the street remained illegal, and defense attorneys discerned no shift in the gun arrests being prosecuted. Nor did the police change the tactics they had used before the Court’s ruling, during my nights with the Power Shift.

  The political spectrum gets scrambled out on the street. Liberals who favor strict gun control oppose the intrusive searches, which erode the Fourth Amendment but facilitate police in finding guns. Conservatives who oppose gun control favor more police power to search, which helps them find guns. You might say that the rights under the Second and Fourth Amendments rise and fall together.

  A radio call came about an SUV in the left lane behind us. LeFande slowed down and stopped in front of the vehicle, which was trapped by another patrol car behind. The black driver was told to get out, and he was frisked. “What are you patting me down for?” he protested.

  “That’s routine for us, dude,” said a black cop. “You got a car with tinted windows.” The meter showed only 17 percent of the light getting through.

  “You want to search the car?” asked the driver, spitting it out as a challenge and a curse. Neill said OK, was joined by two or three officers in the search, and found nothing. The driver looked bitterly victorious, part of a school of black men, frequently hassled by the police, who offer the search as a means of defiance to prove the cops wrong, to show them up as stupid or ineffective. Sometimes, people would lash the officers with the consent as if it were a righteous demand: “Search the car!”

  LeFande pulled up beside a red sedan. “That’s a girl,” Neill said dismissively, and we moved on. What drew them to check the car? It came out of a high crime area and didn’t make a full stop, Neill explained.

  He then got out and approached two black men, in their twenties, wearing long white shirts. They pulled up their shirts before the cops even asked, and then submitted to pat-downs.

  The next target was a black Mustang with tinted windows. A young black man was ordered out from behind the wheel and was patted down while he kept explaining, “I live right here.” The tint meter showed only 16 percent, and Neill asked permission to search. “There ain’t nothin’ in there, man,” said the driver. “Let’s just get it done,” said Neill. They did and found nothing. They are careful to say they want to “search,” not “check,” to be sure the consent is clear and legal.

  “We’ve got a guy walking to the front of the building,” Neill said into his radio. The jump-outs surrounded him, put his hands up against an iron fence, frisked him, and found nothing. Through the darkness I could not see any reasonable suspicion. As an officer swept the ground with the beam of his flashlight, however, he discovered a black plastic bag of weed packaged in tiny ziplock bags. The officers made no arrest; there was no proof connecting the man to the marijuana, and besides, the Power Shift was looking for guns.

  A lone man sat behind the wheel of a parked car. “Any drugs or guns in the car?” Neill asked affably. “How was your day?” They got him out, searched him, and seated him on the ground. LeFande had him stretch his legs out straight so he couldn’t run, at least not without sending an obvious warning by pulling up his knees before jumping to his feet. The officers searched his car (if he gave consent, I didn’t hear it) and found no weapons, but a sack full of packing materials presumably used for ten-dollar bags of crack—not enough for an arrest.

  Down the block, another driver, alone in a parked car, got Neill’s attention. “Any guns or drugs in the car tonight?” Neill asked in a bantering tone. LeFande had the driver sit on the curb behind the car while the officers searched the trunk, which had only a few jackets and a toolbox. Once, Neill recalled, he’d looked in a trunk and found a safe.

  At Sixteenth and C Streets SE, he spotted a couple walking. “Wha’s up?” he said in his best ghetto accent. The man pulled up his shirt and answered, “No guns, no guns.” Neill patted him down and remarked afterward, “If you talk to ’em good and don’t violate ’em too hard, they all right.”

  After eighteen frisks and seventeen vehicle searches, no guns had turned up, just a few telltale signs of the drug trade, probably not much different from what Neill’s squad would find on a college campus. The only difference would be the explosive uproar from congressmen and bankers and judges if their children were patted down by a police squad roaming late at night among the hallowed walkways and quads of, say, Princeton or Harvard. Of course, to cite Neill’s argument, those kids wouldn’t be carrying guns around. In Southeast D.C., the nineteenth man of the night was doing just that.

  Neill figured it out before I realized that anything was amiss. Traveling the streets with him reminded me of going through Sinai with a Bedouin who notices what the newcomer never sees, or of journeying in Lebanon with an old soldier whose instincts are remarkably alert, or in Vietnam with a local interpreter whose eye is keen and ear attuned to nuance and danger. That didn’t make Neill a hero, just a specialist, and it certainly didn’t make him always right; he had been wrong eighteen times so far tonight. But he was well accustomed to watching in a way that laymen never do.

  So I noticed nothing when a white Ford SUV slowed toward the end of the block and pulled over to park, and when the driver, a lean black man of about forty, got out and walked across the street in front of us and back our way down the sidewalk on the opposite side. To my eyes, he didn’t seem in a rush. He lit a cigarette and strode purposefully but not hastily.

  To Neill, however, he seemed too much in a hurry to get away from his car.

  “Hey, sir, what’s up?” Neill asked cheerfully. The man turned and stopped. “This your car?” The back side and rear windows were very dark, and Neill said something about illegal tint. It was done in the factory,
the driver protested, and walked back to his SUV. Other officers arrived. Through the windshield, Neill could see a cup in the center console. “Is that a drink?” He was fishing for a violation—open alcohol—that would get him inside the vehicle.

  Now the driver was fully engaged in proving his innocence, so he unlocked the door and picked up the cup to show that it was empty. Underneath, Neill spotted a little bag of crack, he said later, at which point, based on the “plain view” doctrine, he had the right to search the car without consent. So he did, poking his head inside and rummaging around while the driver argued. “What have I done? I done nothing! I do not give you permission to search.”

  On the floor in front of the passenger seat, Neill came up with a black gym bag. He unzipped it and reached inside and pulled out a very mean-looking TEC-9 machine gun with a short barrel wrapped in an air cooler. “You’re free to go,” Neill said, which was code that night for “Gun!” The officer nearest the driver grabbed his wrists and handcuffed them behind his back. You never let a suspect know in plain language that you’ve found a gun, Neill said, because he may have another one and be tempted to use it. On the Power Shift, “Let’s get a cup of coffee” or “I need a smoke” can mean “I’ve found a gun.”

  So, I said, legally the guy didn’t have to stop when you asked him if that was his car, right? Right, Neill said. And he didn’t have to walk back to his car, right? Right, Neill answered. And he certainly didn’t have to unlock the door, open it, and pick up the cup, right? Right, Neill said, and quipped, “He could have done better.” There was the slight smile and twinkle of a man who had just won a little contest.

  In the end, though, the assistant U.S. attorney refused to “paper the case,” as they say around the station house, because the vehicle search seemed vulnerable to challenge by the defense. Neill might have gone beyond the “plain view” limit by standing on tiptoes to gaze through the windshield and spot the crack cocaine. He was philosophical. There was one less gun on the street—his unit had confiscated ninety-three in the last eight months—and besides, characters like this always make more mistakes. “We’ll get him next time,” Neill said.

  The rest of the night was anticlimactic but still instructive. On Twenty-first Street NE, we stopped face-to-face with a car containing four young black men, a couple of them wearing their hair in cornrows. Neill seemed to think he’d hit a gold mine. He got everybody out of the car, patted them all down, had them sit on the curb, and searched the car. Nothing. Neill reached out his hand to help all of them up, one by one. He thought these little nice-guy gestures eased the humiliation, but the glum, angry expressions on his victims’ faces rarely changed.

  One fellow, though, grinned as the cops walked to their cars and called after them, “Anybody need some tile work done? I do tile work.” He was shining his badge of honor.

  On Twenty-fourth and E Streets NE, a Cadillac and a Lincoln pulled over and parked as soon as the squad car came into view, a standard maneuver to minimize the chance of getting nabbed for a moving violation. Neill took a lone man from the Lincoln; other officers got a woman out from behind the wheel of the Cadillac. The cops searched inside the passenger compartments, then asked for the keys and opened the trunks, which were full of bags and backpacks. The officers pushed their meaty hands around inside the bags and found nothing criminal.

  The faces of the two drivers were an artist’s challenge: a mixture of sorrow, fear, smoldering anger. I wondered if these policemen ever thought about the fact that a lot of the people they hassled were going to end up on juries. The country that these citizens live in is not the kind of country that I would want to live in. But then, I wouldn’t want to live in a neighborhood crawling with armed drug dealers, either.

  “There’s all kinds of illegal shit on that car,” said LeFande, nodding toward an Isuzu Trooper at Eighteenth and D NE. Two little red lights twinkled above the windshield, for decoration. Neill was about to try to talk his way into a search of the vehicle when the driver revealed the interesting fact that he worked for the Department of Corrections. Neill told him the lights were against the law, then let him go.

  The next targets, a few blocks away, were five black men all wearing white undershirts with straps. “Wha’s up, gentlemen?” said Neill. “How y’all doin’ today? Mind if I check you over?” He never quite waited for an answer. The whole process flowed from gesture to gesture, sentence to sentence, a monologue and an athletic play and a magician’s sleight of hand all at once. He’d be chatting everyone up, folksy like, and moving in for the search, cajoling people to open the legal door, even a crack, so he could joke and push his way in. He didn’t break it down, he just shoved a little, or slid in through whatever opening existed. So, these five responded by raising their hands and getting frisked, and then they strolled quickly down the street and around the corner while the cops searched the ground with their flashlights and found nothing.

  When the officers looked up, they noticed a couple of cars parked nearby—one a red sedan, behind it a dark sedan with a Maryland license plate on the rear and another on the dashboard. The red car was unlocked, so the officers just opened the doors and did a search. With probable cause, a car parked on a public street can be searched without a warrant, based on the logic that unless police guard the vehicle while a warrant is obtained, it can be driven away, and the evidence along with it. One of the five men who had just been searched reappeared from around the corner, and shouted, “You can’t search my vehicle!” He was legally correct, because no probable cause was evident. But the cops ignored him and finished rummaging around inside. Had they found anything and charged the owner, a judge would have been right to exclude the evidence as the fruit of an unconstitutional search.

  They then moved to the car behind. They figured that this one’s unattached front plate gave them probable cause to suspect that the car was stolen, and while one officer radioed headquarters to check, LeFande tried to open the door. He wedged a plastic block between the window and the frame to make room for an oddly shaped metal bar, which he inserted and twisted toward the manual lock. “I got the key!” a voice called out. The owner, coming up the block, was dangling a keychain. “Don’t break the lock! I have the key!” Neill taunted him merrily, saying, “Come on, we’ll see who can open it first.” The winner was LeFande.

  The plates came back stolen. “Stolen?” the owner shouted. “Where would I steal tags from?”

  “That’s what we’d like to know,” Neill said.

  The man stumbled around in a rage, as if he were high on either indignation or drugs. “Y’all search it. You accusing me of stealing tags, y’all search it.” So they did. Nobody could come up with a registration. There were no guns or drugs in the car. The officers took the tags and let the man go stalking and cursing down the street.

  That was the end of the shift, which added up to twenty-nine people frisked, twenty-two vehicles searched, and one gun. After we drove back to the First District station house, Neill got out, and as he walked inside, he turned and said over his shoulder, “It’s addictive, isn’t it?”

  PROFILING CARS AND DRIVERS

  Profiling is common throughout the country. “We would pull over cars that had college bumper stickers, because we knew college kids often partied with marijuana,” said Barry Cooper, a former narcotics agent in Texas. “We would pull over ‘Vietnam Vet’ plates, because a lot of our vets developed a habit over there. I feel bad about it,” he told NPR. “I would look for Mexicans. I would look for black people. It works.”17

  White, black, and Hispanic drivers were stopped at similar rates in 2005, a survey by the Bureau of Justice Statistics found, but what happened to them afterward was quite different. Vehicle searches were done on 9.5 percent of the black drivers, 8.8 percent of the Hispanics, and only 3.6 percent of the whites. Just 11.6 percent of 854,990 searches nationwide uncovered evidence of a crime, and black drivers were twice as likely as whites to be arrested (4.5 versus 2.1 percent). Fewer blac
ks than whites thought they’d been stopped legitimately.18

  Since the Power Shift operated in virtually all-black neighborhoods, geography determined the race of the “subjects,” and the profiling was more refined: age, gender, dress, hair style, type and condition of vehicle. The gun squad mixed more car searches into the blend one night, setting up roadblocks, questioning drivers, patting some of them down, and pushing for permission to look through passenger compartments and trunks. The techniques were supported by an evolving structure of legal precedents that have left people’s cars virtually unprotected by the Fourth Amendment.

  As early as 1925, the Supreme Court distinguished automobiles from houses, holding in Carroll v. United States that warrantless searches of cars were not “unreasonable” if based on probable cause. The reasoning was simple: Cars could be moved; buildings could not. The distinction had roots in law written “contemporaneously with the adoption of the Fourth Amendment,” the Court noted, which recognized the difference between items “concealed in a dwelling house or similar place, and like goods in course of transportation and concealed in a movable vessel where they readily could be put out of reach of a search warrant.” Autos were considered akin to the ships, beasts, and wagons that had been susceptible to warrantless searches for illegally imported items during the late 1700s and early 1800s.

  So the legal concept has remained fairly constant as the contraband has changed over time, from smuggled goods two centuries ago, to liquor during Prohibition, to drugs and handguns today. In 1925, federal agents doing a sting operation against a bootlegger happened to see him driving his Oldsmobile Roadster between Grand Rapids and Detroit. Figuring that he must be transporting alcohol, they pulled up beside him, and, as one agent testified, “I stepped out on the running board and held out my hand and said, ‘Carroll, stop that car.’ ” The feds tore open the rumble seat’s upholstery and discovered sixty-eight bottles of gin and whiskey. Finding probable cause, the Court admitted the bottles into evidence but warned, “It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search.”19